The Constitutional Court will hear on Thursday whether the Labour Relations Act (LRA) requires every employee who goes on strike to give notice to the employer beforehand.
The SA Transport and Allied Workers' Union (Satawu), with most of its members belonging to Equity Aviation Services (EAS), served a notice as required by the LRA and embarked on a strike in November 2003.
Other employees who did not belong to the union participated in the strike without giving notice.
The company believed it was unlawful that those who did not give notice participated, and requested them to return to work. They did not.
Equity later dismissed them for unauthorised absenteeism during the strike.
The Labour Court held in favour of the workers and found that the dismissals were unfair because the employees were not required to be members of the union or to give notice to strike.
The Labour Appeal Court held that where a union had given the requisite notice on its members' behalf and embarked on a strike, other employees who were not members, need not give notice for their strike action to be lawful.
EAS appealed to the Supreme Court of Appeal, which reversed the decision, ruling that a separate notice had to be given by non-union members for their strike to be protected.
The Supreme Court of Appeal ruled that the dismissals were, therefore, not unfair.
In the Constitutional Court, the union is challenging the SCA's interpretation of the LRA. Equity is arguing in favour of it.
The union submitted that the Labour Appeal Court was right and that no notice by non-member employees was required. - Sapa