Picture: Nomazwe Bukula/African News Agency (ANA)

Durban - The National Union of Metalworkers of South Africa (Numsa) has won its appeal in the Constitutional Court against the unfair dismissal of 65 workers at Dunlop in August 2012 in KwaZulu-Natal, the union said on Saturday.

Judgment was handed down on Friday, Numsa national spokesperson Phakamile Hlubi-Majola said in a statement.

On August  22, 2012, 200 workers at Dunlop went on a legally protected strike. On the day the strike started, violence erupted and it continued throughout the month-long strike. After the strike ended, the employer took workers through a disciplinary process and dismissed them on the basis of alleged misconduct, violence, and intimidation, he said.

"As Numsa, we challenged the fairness of the dismissal on the basis that 65 workers who had not been individually identified as part of the strike were dismissed because of 'derivative misconduct'. This is defined as a situation where an employee who has knowledge of wrongdoing towards his or her employer subsequently fails to disclose such knowledge to their employer. It is also known as ‘snitching’."

Numsa took the matter up through arbitration and the workers were reinstated. But Dunlop was unhappy with the outcome and took the matter on review at the Labour Court. The decision was overturned and workers were dismissed.

"Numsa appealed the decision to the Labour Appeal Court because we believed the decision was unfair, but unfortunately the LAC upheld this decision. We then appealed to the Constitutional Court and, finally, we won the appeal at the apex court," Hlubi-Majola said.

The justices of the Constitutional Court found that the duty to disclose could never be unilateral. In the written judgment, the justices stated that it had to be “accompanied by a reciprocal, concomitant duty on the part of the employer to protect the employee’s individual rights, including the fair labour practice right to effective collective bargaining.

"In the context of a strike, an employer’s reciprocal duty of good faith would require, at the very least, that employees’ safety should be guaranteed before expecting them to come forward and disclose information or exonerate themselves. Circumstances would truly have to be exceptional for this reciprocal duty of good faith to be jettisoned in favour of only a unilateral duty on the employee to disclose information”.

Hlubi-Majola said it was on this basis that leave to appeal was granted, and the decisions of both the Labour Court and the Labour Appeal Court were set aside. This was a victory for Numsa members and also for all workers involved in strikes, 

"In terms of this judgment, it means that employers can no longer simply dismiss workers for refusing to ‘snitch’ or ‘rat’ on their comrades if violence erupts at a strike. This victory which we have secured will mean that they are now eligible to be immediately reinstated, and they can claim seven years back pay after they were unfairly dismissed, Hlubi-Majola said.

African News Agency/ANA