Case Notes: Can Unidentified Protected Strikers Engaging in Misconduct be Retrenched? FAWU on behalf of Kapesi & Others v Premier Foods Ltd t/a Blue River Salt River

• Jurisdiction: South Africa
• Pages: 269-279
• Published date: 25 May 2019
• Author: Nicci Whitear-Nel
• Date: 25 May 2019
• Citation: (2011) 23 SA Merc LJ 269

Case Notes

Can Unidentif‌ied Protected Strikers Engaging in

Misconduct be Retrenched?

FAWU on behalf of Kapesi & Others v Premier

Foods Ltd t/a Blue River Salt River*

NICCI WHITEAR-NEL

University of KwaZulu-Natal

1 Introduction

Employees who engage in protected strike action are protected, inter alia,

against dismissal for that involvement. However, they remain vulnerable to

dismissal for misconduct during the course of the strike, as well as to

dismissal for the operational requirements of the business, even if these

requirements arose as a direct result of the strike action.

The decision in FAWU on behalf of Kapesi & Others v Premier Foods Ltd

t/a Blue River Salt River (2010 (9) BLLR 903 (LC), referred to as Kapesi’s

case in this note), concerns the fairness of the dismissal of thirty-two

employees, allegedly as a result of the operational requirements of the

business.

The employees argued that the alleged reason for the dismissals was a

sham, and that the true reason was that the employer was unable to prove that

any of the applicants were guilty of alleged misconduct during the strike.

They challenged their dismissals as unfair in the Labour Court.

In the course of deciding whether the employer’s substitution of the

disciplinary enquiries with retrenchments was fair or not, the Court also had

to deal with the issue of the admissibility of hearsay evidence regarding the

alleged misconduct of the applicants, both in the present litigation itself and in

the mooted disciplinary proceedings. It also had to consider whether the

results of a polygraph test could be used as the selection criterion for those to

be retrenched.

* Many thanks to Mr Matthew Rudling for his assistance in preparing this case note.

269

(2011) 23 SA Merc LJ 269

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