Wiseman Khuzwayo

In a groundbreaking ruling, the Constitutional Court ordered the National Lotteries Board yesterday to reinstate 10 employees who had been unfairly dismissed.

The employees were dismissed following disciplinary charges of insubordination and disrespectful behaviour when they called for the resignation of the statutory body’s chief executive.

The case went to the Labour Court and the Supreme Court of Appeal, where the dismissals were upheld.

The National Union of Public Service and Allied Workers then applied for leave to appeal to the Constitutional Court, which was granted.

Justice Johan Froneman, delivering the minority judgment, said: “This case concerns the interpretation and application of a number of provisions of the [Labour Relations] Act, particularly those dealing with the nature and extent of lawful union activities and the right of employees to take part in them.”

He said, moreover, that the case required the court to clarify the extent of the act’s protection for public sector employees who spoke out on matters of public concern and it had not authoritatively dealt with these issues.

During 2008, the employees, through their shop stewards, addressed a letter to the board raising grievances about the leadership of chief executive Vevek Ram.

They sought information about Ram’s contract from the board, but the board refused to disclose it. The union then referred the dispute about its right to obtain the information to the Commission for Conciliation, Mediation and Arbitration for conciliation.

During the conciliation process, the union and the employees were given the opportunity to motivate why the contract of Ram should be made public.

The union did so in a letter that listed a number of complaints against Ram, but the letter did not demand his dismissal nor did it contain any threats of a work stoppage.

The union’s letter was leaked to the Mail & Guardian.

Then the employees wrote their own petition supporting the union, but went further in demanding the dismissal of the chief executive, stating that if it was not done by a certain date, they would not work in the same building as him.

This conduct by the workers led to the institution of disciplinary proceedings.

Separately, the conciliation was declared a failure and the board’s contention that the union was not entitled to the information about the chief executive’s contract was upheld by the commissioner.

In the majority judgment, written by Justice Raymond Zondo, the court held the statements made by the employees were in pursuit of the ongoing statutory conciliation process, and in the exercise of their rights to participate in collective bargaining.

Their dismissals were automatically unfair. Further, the failure to use the statutory resolution mechanisms in the act or to table their grievances internally did not render them guilty of insubordination.