An employee of Aspen Pharmacare, who was dismissed on charges of inciting staff to illegal picketing during lunch breaks, was reinstated almost ten years after his dismissal.
The Labour Court in Gqeberha ruled that the dismissal of RM was fundamentally unfair and ordered Aspen Pharmacare to reinstate him retroactively, including payment of compensation for specified periods starting from September 2016.
RM was dismissed in September 2016 following a disciplinary hearing that arose from employees' participation in a strike at the facility in May of the same year.
Dismissal followed May 2016 picketing
RM worked at Pharmacare, which traded as Aspen Pharmacare, as a technical production specialist and was a member of the South African Chemical Workers Union (SACWU). The conflict began due to picketing organized by employees on May 19 and 20, 2016.
The company alleged that RM participated in unauthorized industrial action, incited employees to join an illegal picket, and urged them to disregard their lunch break schedules, resulting in alleged losses of approximately R337,536.
RM admitted his involvement in the unprotected protest. However, the chairperson of the disciplinary committee found him guilty only of the second charge—inciting employees to participate in the illegal picket—issued a final warning for the first charge, and found him not guilty of the third.
Subsequently, Aspen agreed with the recommendation to terminate employment with RM.
Picketing occurred during lunch breaks
The court established that on May 19, 2016, employees of the small volume parenteral division and Division 1 left the company premises during their lunch break and gathered near the workplace to protest. The company issued an ultimatum demanding employees return to work and notified SACWU that it considered the protest unauthorized industrial action.
Later, RM sent an email to engineering staff stating that workers had decided to leave their workstations during breaks to hold a peaceful picket. The next day, the picket continued during the employees' lunch break.
He also sent additional letters to employees, including one questioning why the company did not stop them if their behavior was illegal, and another indicating that their actions 'worked' and that they would continue picketing if the company did not meet their demands.
Aspen subsequently sought urgent relief from the Labour Court. On May 23, 2016, the court issued an interim order declaring the picket illegal and prohibiting employees from continuing their participation.
Emails could not provoke picketing that had already occurred
RM challenged the arbitration award, which deemed his dismissal fundamentally fair. The Labour Court concluded that the commissioner's finding that RM incited employees to participate in the illegal picket was unsubstantiated by evidence. The court noted that the employees had already decided to start the picket before RM sent his email on May 19. Consequently, his email was sent after the picket began and could not have caused the commencement of these actions.
The court also found no evidence that the recipients of the email interpreted it as encouragement to participate in or continue the picket. The same applied to the emails RM sent on May 20, as they were sent after employees had already started the lunch picket that day. No picketing occurred after May 20.
The court stated: 'Incitement inherently involves conduct that encourages, prompts, or persuades another person to commit an act.' It found illogical to conclude that RM's emails incited actions that had already taken place or actions that would never happen subsequently. As a result, the court ruled that RM was not guilty of the alleged misconduct, and the commissioner's finding of guilt could not be upheld.
Court questioned dismissal as a punitive measure
The court also found that dismissal would have been inappropriate even if RM had been found guilty. It was noted that the picket was peaceful, took place during lunch breaks, and outside the company premises. RM also genuinely believed the picketing was legal, and SACWU advised him that it was legal. The court found no evidence that RM intended to encourage employees to take actions he knew to be illegal. It concluded that these circumstances significantly mitigated the seriousness of the alleged misconduct and rendered the dismissal disproportionate.
Court revealed inconsistent disciplinary treatment
The Labour Court also found that Aspen applied disciplinary measures inconsistently. The company's own evidence showed that four employees, including RM and colleague union representative PD, faced charges of incitement. However, PD received only a written warning and did not undergo a disciplinary hearing. The company failed to provide a satisfactory explanation for this disparity in treatment. Its HR representative described it as a 'possible error.' The court noted this was particularly relevant because Aspen's evidence relied on the premise that union representatives should be treated strictly as leaders and role models for other employees. Other union representatives, including SJ and MD, were also mentioned during the proceedings regarding the disciplinary treatment of employees involved in the picket. The court concluded that the principle of parity was violated, and RM's dismissal could not be consistent with the treatment of other employees involved in the same events.
Man achieved reinstatement with compensation
RM sought reinstatement both during the arbitration proceedings and before the Labour Court. The court found that none of the exceptions for reinstatement under the Labour Relations Act applied and ordered his reinstatement. Thus, the court ordered him to be reinstated with compensation for the period from September 8, 2016, to October 3, 2018, and from June 9, 2022, until the date Aspen complied with the decision. The court ordered Aspen to reinstate RM retroactively under the same terms and conditions of employment that existed before his dismissal, without any loss of benefits. Aspen was also required to pay compensation within 15 court days of the ruling. Munnick was required to resume work under his reinstated employment contract within three working days of receiving the decision. The court made no ruling on costs.