Was it an unlawful picket linked to an overtime dispute, or simply a lunchtime rehearsal for a colleague’s upcoming wedding? That was the unusual question before the Labour Court in AMCU obo Sebalela Agreement and Others v Fraser Alexander (Pty) Ltd.
The Court found that Fraser Alexander had failed to prove that nine employees had engaged in illegal picketing and held that their dismissals were both substantively and procedurally unfair. The employees were reinstated with retrospective effect.
Although the facts are unusual, the judgment reinforces familiar principles: employers bear the burden of proving misconduct and courts will closely scrutinise both the evidence supporting the allegations and the fairness of the process followed.
What the Court found
The employees worked at Fraser Alexander’s Elikhulu Tailings Project at Evander Gold Mine. Before the incident, there had been tension about proposed changes to overtime remuneration, and management had considered how to respond to possible industrial action.
On 22 August 2019, during lunch, a group of employees gathered outside the worksite, sang, danced and carried placards. The employer alleged that this was an illegal picket connected to the overtime dispute. The employees said they were rehearsing wedding songs and dance moves for a colleague who was due to be married the following month.
The Court accepted that aspects of the employees’ explanation may have appeared unusual, particularly the use of placards in a wedding rehearsal. However, that did not relieve the employer of its evidentiary burden. The employees were not required to prove their innocence; the employer was required to prove the misconduct alleged.
On the evidence before the Court, that burden was not discharged. The employer did not produce the alleged CCTV footage, photographs or videos of the incident. Several alleged eyewitnesses were not called, and there was insufficient reliable evidence about the wording on the placards or the content of the songs. In those circumstances, the Court found that the employer had not proved that the gathering was a protest or picket.
The employer also failed to prove any meaningful operational impact. The incident lasted about 30 minutes, occurred during lunch, involved no violence, damage or obstruction, did not interrupt production, and the employees returned to work afterwards. The Court was also not persuaded that the incident caused the later reduction or termination of services under the client contract.
Why dismissal was unfair
Even if the conduct had amounted to unlawful picketing, the Court held that the dismissals would still have faced serious procedural difficulties.
The employees were not told that their conduct was considered unlawful, no ultimatum was issued, and no warning was given about the consequences of continuing. The evidence was also that the employees stopped after being contacted by their union representative, resumed their duties, and, in some cases, continued working overtime.
In assessing sanction, the Court reiterated that dismissal is a measure of last resort in strike-related misconduct cases. Given the short duration of the incident, the absence of violence or damage, the lack of proven operational harm, and the absence of prior similar misconduct, dismissal was disproportionate.
Employer takeaways
The judgment cautions employers against treating collective employee conduct as industrial action simply because employees gather, sing, dance or display placards. The character and purpose of the conduct must be assessed objectively and established by reliable evidence.
It also underscores the importance of preserving contemporaneous evidence. Where misconduct is alleged, employers should secure all available CCTV footage, photographs, videos, witness statements, security records and operational reports at the earliest opportunity, particularly where the allegation turns on what was said, displayed or intended.
Finally, the judgment confirms that process and proportionality remain central. Before imposing dismissal for strike-related misconduct, employers should, where appropriate, communicate their concerns clearly, issue an ultimatum, allow employees an opportunity to desist, and consider whether dismissal is justified in light of the nature, duration and impact of the conduct.
Conclusion
Whether the gathering was a wedding rehearsal or something more, the employer’s case failed because it could not prove the misconduct alleged. For employers, the message is clear: before dismissing employees for strike-related misconduct, ensure that the evidence and the process can withstand scrutiny.
