NUPSAWU obo Mani v National Lotteries Board  8 BLLR 743 ; (2013) ILJ 1931 SCA576/12 24 May 2013
Note: Overturned on appeal  7 BLLR 621 ; (2014) ILJ 1885 (CC)
“Summary: Employees’ advice that CEO be given a separation package in return for resignation – not demand for dismissal of CEO – advice can be accepted or rejected – statement by employees that they cannot bear to be in the same building with CEO and that employer to ensure that certain day is his last day in employer’s employ – advice to give him separation package – publication of complaints – lawful activities in terms of section 4(2)(a) of the Labour Relations Act 66 of 1995 and made in pursuit of conciliation process – not insubordination and disrespectful behaviour – dismissal – dismissal automatically unfair – fully retrospective reinstatement and costs”
Yesterday the Supreme Court of Appeal (SCA) held the dismissal on 25 August 2008 of 10 former employees of the National Lotteries Board to be fair and disallowed an appeal by the trade union on their behalf. They were dismissed for insubordination and for disrespectful behaviour. The former employees had demanded inter alia to see the CEO’s contract; complained about his leadership style and modus operandi; submitted a vote of no confidence in the CEO; stated they were ‘no longer prepared to spend a day with Professor Ram in the same building with him at the helm of this organisation’.
The trade union claimed their dismissal was automatically unfair because they participating in lawful union activities, viz. supporting their trade union’s petition for the removal from office of the CEO. In the alternative it was submitted the dismissals were unfair because they were inappropriately severe and there had not been any irretrievable breakdown in the employment relationship. The trade union claimed the reinstatement of the employees.
I have argued repeatedly that the concept of a ‘fair reason’ needs to be seen in a wider context. Not only the Labour Relations Act 66 of 1995 but also the Basic Conditions of Employment Act (BCEA) and the common law apply to all dismissals. In this matter there is no doubt that there was a valid and fair reason to dismiss. But what about the BCEA and the common law which require minimum and reasonable periods of notice of termination respectively? Employers act unlawfully if they terminate an employment contract without reasonable notice, except when they are able to prove that the employees materially breached their contracts.
It does not appear to have occurred to the legal representatives of the trade union and the former employees to claim an unlawful dismissal. If that had been done the employer would have had to prove that the insubordination amounted to serious or gross misconduct. The trade union and the employees claimed they were exercising constitutional rights of freedom of expression, etc. They did not commit a crime, they were not dishonest and no-one was assaulted.
It is debatable whether what they did was serious enough to warrant summary dismissal even though the dismissal was fair. It is suggested that a prudent employer should err on the side of caution and at least pay reasonable notice pay in such circumstances to avoid any argument about having acted unlawfully.
It is even possible that had reasonable notice pay been ‘negotiated’ all the costs of fighting the case successfully in the CCMA, Labour Court, Labour Appeal Court and the Supreme Court of Appeal over a period of nearly five years could have been avoided.
The courts cannot be blamed for not considering the lawfulness of such dismissals if the legal practitioners do not plead all the alternative causes of action. It must only be a matter time before the ‘penny drops’ and practitioners get wise to the additional claims.
Extracts from the unanimous judgment of Willis AJA [footnotes omitted].
 Mr Ngalwana’s initial submission was that the employees had been dismissed because they had joined in petitioning the respondent, which was a legitimate trade union activity. That submission is not factually correct. That the affected employees supported a petition was not, by reason of this fact alone, the cause of their dismissal. As correctly found by the disciplinary enquiry, and the court a quo, the cause of their dismissal was what they said in the petition, which is a different matter. No doubt it is correct, as was submitted by Mr Ngalwana, that they would not have been dismissed had the petition not been sent, but that is because the offensive material therein would not have been conveyed. It was the communication of the offensive material that caused their dismissal, not the act of petitioning in itself.
 As far as this submission, advanced on their behalf of the affected employees is concerned, murder and arson, would, for example, remain unlawful even if the conspiracy hatched to commit them had been formed during a meeting of a trade union, scrupulously convened in terms of the formal organisational rights conferred upon trade unions by the provisions of the LRA and affirmed in the Constitution. When these vivid hypothetical illustrations were presented to Mr Ngalwana by the court, he was compelled to concede that it could never have been intended by the legislature that the rights to petition and to organise in terms of the LRA and the Constitution were unqualified. A meeting of trade union officials and shop stewards cannot, for example, be convened to plot and plan the murder of a disagreeable employee at the work place or to burn down the buildings of the employer, no matter how justified the participants may believe such action to be. So too, pickets, protests, meetings, pamphleteering cannot, as the court a quo also mentioned by way of illustration, be organized contrary to our law of defamation. Trade union activities which constitute unlawful acts of insubordination are not protected. The law does not dissemble unlawful acts through the invocation of a constitutional banner.
 The court a quo referred to Acrylic Products (Pty) Ltd v CWIU and Another; Slagment (Pty) Ltd v Building Construction and Allied Workers Union; Johannes v Polyoak Industries and Air Products (Pty) Ltd v CWIU to consider the meaning of ‘insubordination’ and the consequences that may flow therefrom. The conclusions of the learned judge cannot be faulted. No reasonable person could come to any other conclusion from the conduct of the employees than that they were serious in their threat willfully to defy their employer and its CEO. This constitutes insubordination. There would be no logic in requiring an employer first to wait to see whether the threat was acted upon before it can invoke disciplinary proceedings against the employee concerned. Provided the threat is credible an employer may act upon it forthwith.
 Correctly construed, the affected employees were dismissed not for petitioning their employer but for their acts of insubordination. Neither the Constitution nor the LRA protects employees from dismissal for insubordination. The affected employees were not dismissed in contravention of s 187(1)(d) of the LRA. There was no automatically unfair dismissal.
 As Grogan notes in his Dismissal, the LRA’s Code of Good Practice encourages employers to adopt disciplinary measures other than dismissal and, in the case of less serious offences to follow a system of ‘graduated’ discipline. This principle was applied when Professor Ram recognised that not all of the affected employees may have realised the seriousness of their actions and Professor Van Niekerk, against this background gave all of those whom he found guilty of misconduct the opportunity to dissociate themselves from the petitions, accept their wrongdoing, apologise to Professor Ram and to undertake that they would, in future, use the grievance procedures provided for in both the Staff Policy document and the LRA. This opportunity was extended at the request of the appellant. Professor Van Niekerk acted in a procedurally fair manner.
 There is no inconsistency in giving, on the one hand, written warnings to those who acknowledged their wrongdoing and, on the other, dismissing those who did not. The dismissed employees persisted, right to the end, in protesting that they had done nothing wrong in seeking to hound Professor Ram out of his office. On the contrary, they insisted that they were merely exercising their rights in terms of the LRA and the Constitution. This unrepentant intransigence rendered the continued employment relationship between the parties intolerable. The relationship between them had irretrievably broken down.
 Section 185 of the LRA gives employees the right not to be subject to unfair labour practices. These include ‘unfair conduct relating to the promotion, demotion, probation or training or the provision of benefits to an employee’. Section 191 of the LRA provides mechanisms for the resolution of such disputes. Section 193 provides remedies for such disputes. Sections 133 to 135 provide for the resolution of disputes of mutual interest. Whatever criticism may have been levelled at the respondent’s own internally provided grievance procedures, the LRA provides avenues down which the affected employees could have walked and even marched. They failed to use these at their peril.
 It is irrelevant to the determination of this appeal that, subsequent to the events that gave rise to the dismissals, the appellant lost its recognition by the respondent and Professor Ram resigned. The appeal must be decided on the facts that were germane at the time of the dismissals.
 The appeal is dismissed with costs.