The National Union of Public Service and Allied Workers (Nupsaw) turned to the Labour Court in Johannesburg after hundreds of workers at Dis-Chem were fired after a violent strike in 2019.
About 800 workers lost their jobs at the time after they were found guilty of misconduct. This case concerned the fairness of the dismissal of 285 of those employees, all Nupsaw members.
Between November 2018 and April 2019, approximately 2 500 Dis-Chem workers went on strike, which was marred by widespread violence.
The union asked the Labour Court to review and set aside the arbitration award issued by a commissioner which earlier found the dismissals to be fair. It asked the court to remit the matter back to the CCMA for a rehearing before a different arbitrator.
Nupsaw took issue with aspects of the commissioner's award and argued that he failed to apply his mind to the issue of inconsistency in the application of sanction, and that he misconstrued the relevant elements of the doctrine of common purpose.
The issue of inconsistency followed after Dis-Chem had fired hundreds of its employees at the time, while a few received a final written warning.
Dis-Chem Pharmacies Limited is in the pharmaceutical business and has approximately 150 stores nationwide. The company employs about 17 000 workers.
In anticipation of a wage strike at the end of 2018, the parties met at the CCMA to negotiate picketing rules for approximately 50 stores, warehouses and distribution centres.
The CCMA at the time set down the picketing rules which included that the strike had to be peaceful and that no picketing, demonstrating, singing, protesting and/or toyi-toying shall take place outside designated areas.
The strike began in November 2018 and it turned violent.
Dis-Chem approached the Labour Court for an order that the striking employees comply with the picketing rules and confine themselves to the designated areas. The workers were accordingly interdicted and ordered to toe the line.
The court order had little effect and striking workers continued to assault non-striking workers, damage delivery vehicles, throw stones at passers-by, and blockade access to Dis-Chem stores.
Dis-Chem approached the court for further relief in December 2018 and the court ordered the workers to stop the strike.
Shortly afterwards, more than 100 employees boarded a hired bus, apparently destined for Ghandi Square. It never got there and instead about 90% of the employees on the bus approached the Woodmead store and thereafter the Sunninghill store, throwing stones and interfering with traffic.
This led to their arrest.
In January 2019, striking workers targeted the Dis-Chem head office. The strike only came to an end in March 2019.
Disciplinary action followed and about 800 strikers were dismissed in April 2019, while a few got a final warning.
Acting Judge D Norton said the fact that some only received a final warning did not mean that the company had conducted itself inconsistently in the application of the sanction. It did not mean that most employees were entitled to the lesser sanction, the judge said.
He found that Dis-Chem correctly applied the parity principle, and to the extent there were minor examples of differentiation with respect to sanctions, those differences were reasonable and justifiable.
The conduct of those employees who stayed on the bus in the bus incident amounted to serious misconduct in that they knowingly violated two court orders.
While they did not participate in the unlawful action, they showed solidarity by singing Struggle songs, which action indicates an allegiance with the misconduct. Thus, the court found, the dismissals should remain in place.