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The factory workers demanded that the CEO fire the Factory Manager, and made a threat, in writing that, if the Factory Manager was not fired, they would take action. The workers were brought to a disciplinary hearing and fired for trying to undermine the Factory Manager and for making a threat against their employer. Will this dismissal stand up at the CCMA?
If I were the CCMA arbitrator I would uphold this dismissal. Firstly, workers should not have the right to make such a demand. Secondly, the workers did not make it clear as to what action they planned to take if their demand was not met. As they may have been intending to go on strike, and as strikes are harmful to the economy, they should have no right to make such threats. The employer was therefore right to fire the workers.
If I were the CCMA arbitrator I would uphold this dismissal. Firstly, workers should not have the right to make such a demand. Secondly, the workers did not make it clear as to what action they planned to take if their demand was not met. As they may have been intending to go on strike, and as strikes are harmful to the economy, they should have no right to make such threats. The employer was therefore right to fire the workers.
In City of Johannesburg v SAMWU & others (2009)5 BLLR 431(LC), the initial demand by the union was for two managers to be suspended for interfering with certain test results, this was later changed to a demand for suspension in accordance with due process and in a manner not constituting an unfair labour practice. This demand was accepted by the court as not being unlawful. Management had, on receipt of the strike notice, asked the court to declare the intended strike unlawful. The court did not agree, finding that the modified demand made by the union was not unlawful.
On this basis, I would argue that the “threat” is not unlawful if there is a justifiable reason for their demand and that their demand was not for the factory manager to be dismissed without a hearing. In these cirumstances, therefore, the employees cannot be disciplined for making the threat. However, if they were demanding a dismissal without a hearing, that would be unlawful.
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