Dismissal for violation of picketing rules

In Shave and Gibson Packaging (Pty) Ltd v African Meat Industry and Allied Trade Union [2025] 8 BLLR 819 (LAC), 126 protected strikers were dismissed for insubordination after picketing outside the demarcated area during a violent strike. The employer had obtained an order interdicting the strikers from harassing and intimidating non-striking workers and from obstructing the main gate. They were also ordered to stay ten metres away from the perimeter until the picketing rules were finalised. There was a map showing the demarcated area but these employees continued to picket in another area. The LC issued an interim interdict in terms of which the strikers had to show cause why they should not be found guilty of contempt and they were also ordered not to picket within one kilometre of the factory.

Disciplinary action was taken and the employees were dismissed. The employees challenged the fairness of the dismissal and the LC found that save for the dismissal of 18 employees who were fairly dismissed, the dismissals of the other 126 employees were substantively unfair and reinstatement was ordered. The order of reinstatement was, however, reduced by nine months given the substantial delay in prosecuting the matter.

The matter was taken on appeal but the dismissal of the 18 employees who were found to have been fairly dismissed by the LC fell outside the scope of the appeal.

The LAC found that the employees had deliberately and without justification disobeyed the order for nearly two weeks, which amounted to gross insubordination that had destroyed the trust relationship. They had also shown no remorse and had been confrontational during the disciplinary process. It was accordingly found that this conduct was serious enough to warrant dismissal. It was remarked that the totality of the circumstances needed to be taken into account when determining appropriate sanction and that not every breach of a picketing rule would necessarily warrant dismissal. In these circumstances it was found that the 90 identified employees (who had been clearly identified as participating in the strike) were guilty of serious misconduct as they had wilfully failed to obey an order and, later, the picketing rules in respect of the demarcated area for picketing. The order regarding picketing was disregarded without justification and this was found to be a major aggravating factor, particularly because the order was not obeyed for more than a week after the establishment of picketing rules by the Commission for Conciliation, Mediation and Arbitration.

The LAC set aside the LC’s finding that the dismissal of these 90 employees who disobeyed the order was substantively unfair. However, it did not set aside the order in respect of the 36 employees who had not been clearly identified and linked to the picketing outside the demarcated area and were only found to be guilty by association. It was found that the dismissals of these 36 employees were substantively unfair.

Accordingly, the LC’s order was set aside and replaced with an order that the dismissal of the 90 employees was substantively and procedurally fair, but that of the 36 was unfair and their reinstatement would take effect from the date determined by the LC.

Monique Jefferson