National Union of Metalworkers of South Africa & others v Allens Meshco (Pty) Ltd [2026] ZALCCT 183

Date of Judgment & Seat of Court: 20 October 2026, Labour Court, Cape Town

Case No: C291/2024

Name of Judge(s): Lagrange J

Summary of Factual Matrix:

After the employer informed NUMSA that it intended to apply to the bargaining council for an exemption permitting it to pay only half of the December 2023 leave enhancement pay, day-shift employees embarked on an unprocedural work stoppage on 25 October 2023, joined later by the night shift. Over three days management issued several written notices and ultimatums, which were read out to the strikers and emailed to the union, and met the union official on 26 October. On 27 and 30 October each striker was asked individually whether he would return to work or take his dismissal papers, and those who refused were dismissed without any disciplinary hearing.

NUMSA and 21 dismissed employees referred an unfair dismissal claim to the Labour Court, seeking retrospective reinstatement or compensation. They contended that the strike had been provoked by management, that dismissal was disproportionate and inconsistently applied, and that the employees had not been heard. The issues were the substantive and procedural fairness of the dismissals under section 68(5) of the LRA and item 6 of the Code of Good Practice: Dismissal, and the appropriate relief.

Summary of Findings:

[4] ‘Groenewald's evidence was cogent, did not appear contrived, and directly contradicted the union's claim that employees were dismissed en masse or inconsistently without being given a choice.’

[5] ‘Allen was challenged about taking a video recording of the striking workers on 26 October; he claimed he did not remember taking it despite the pre-trial minutes confirming it as common cause, rendering his evidence in this specific regard somewhat evasive. Nevertheless, his substantive evidence regarding the business rationale and the dismissal process was consistent.’

[6] ‘He conceded that those who answered ‘Yes’ were told to return to their workstations and were retained, effectively corroborating the employer's version that workers were given a final opportunity to comply with the ultimatum.’

[7] ‘His evidence regarding the communication of the strike notices severely lacked cogency. […] It seems highly improbable that an active union official managing a volatile strike would simply miss numerous pertinent emails.’

[8] ‘The Court provisionally admitted the Strike Diary strictly to the extent that its contents were confirmed by the viva voce testimony of Groenewald and Allen, who identified their personal contributions to entries in the diary. […] The core factual events recorded in the strike diary were largely independently corroborated by the oral evidence and electronic email trail. Ultimately, there was no serious disagreement about the sequence of events which would have had any meaningful impact on the outcome.’

[40] ‘However, Van Wyk’s evidence on this question was unsatisfactory and he conceded that he had could not identify a single individual who was dismissed despite indicating to Groenewald that they wanted to work.’

[43] ‘It is true that Meshco made its intentions clear both to the strikers and the union that dismissals would ultimately follow if the strike action persisted, but calling upon strikers individually to express their election whether they wanted to return to work or accept their dismissal, in my view, was not an adequate substitute for giving them an opportunity to be heard before the decision to dismiss them was taken. At the very least they could have been advised, and the union notified, that they could make representations why they should not be dismissed for participating in the unprotected strike, before the decision was taken. That would have provided a last opportunity for reflection on the consequence of their misconduct and possibly might, with the union’s intercession, have ended the strike. At the very least, they could have advanced reasons why not all of them should be dismissed, based on various mitigating factors, or why a sanction less than dismissal ought to have been imposed.’

[44] ‘Substantively, it is common cause that the employees embarked on an unprotected strike regarding the LEP exemption. The union's defence of employer provocation under Item 6(1) does not withstand scrutiny. The oral evidence and documents confirm the unprocedural work stoppage commenced on 25 October 2023, while the alleged acts of provocation—Mr. Allen taking video footage and mentioning the R300,000 theft—occurred on 26 October 2023. Conduct occurring on the 26th cannot serve as justification for an illegal strike initiated on the 25th. Moreover, it began despite a prior agreement with the union, that management would address workers on the LEP application once a suitable time was arranged. Furthermore, the striking employees ignored the direct advice of their union official, Mr. Carolus, to return to their workstations, which he gave them before leaving the premises on 26 October 2023.’

[45] ‘The claim of inconsistent treatment at the time of dismissal is insubstantial. Groenewald approached all striking day-shift employees individually with the same choice to return to work, and only those who explicitly rejected the offer were dismissed. The fact that Allen conducted the same exercise in a slightly different way made no material difference to fact that the strikers were all given an opportunity to express their individual choice whether to continue striking of face dismissal. The contravention of the LRA was deliberate, sustained over several shifts, and caused significant operational harm, rendering dismissal a proportionate sanction.’

[46] ‘The ultimatums issued by the employer were adequate in format and content, clearly demanding a return to normal working hours and unambiguously warning of dismissal under Section 68(5) of the LRA. However, the employer fundamentally conflated the legal purpose of an ultimatum with the legal requirement of a hearing.’

[47] ‘It is true that Meshco made its intentions clear both to the strikers and the union that dismissals would ultimately follow if the strike action persisted, but calling upon strikers individually to express their election whether they wanted to return to work or accept their dismissal, in my view, was not an adequate substitute for giving them an opportunity to be heard before the decision to dismiss them was taken. At the very least they could have been advised, and the union notified, that they could make representations why they should not be dismissed for participating in the unprotected strike, before the decision was taken. That would have provided a last opportunity for reflection on the consequence of their misconduct and possibly might, with the union’s intercession, have ended the strike.’

[48] ‘Although Meshco’s method of effecting the dismissals, by offering each individual a choice, was better than simply a blanket notice of dismissal, the immediate, on-the-spot confrontation provided no calm or reasonable environment for the union or the employees to present mitigating factors or argue for progressive discipline. In the circumstances, the dismissals were procedurally unfair.’

[49] ‘Given that the dismissals were substantively fair, no relief is due in that regard. However, Meshco should pay compensation to the Second to Further Applicants for the procedural unfairness of their dismissals. Bearing in mind that the employer at least gave strikers each an individual opportunity to reconsider their stance before imposing the sanction of dismissal, an award of five months’ remuneration to each of the dismissed strikers is sufficient for the employer’s failure to adhere to the audi alterem requirement applicable to unprotected strike dismissals.’

Relief: The dismissals for participation in an unprotected strike were declared substantively fair but procedurally unfair. The employer was ordered to pay each dismissed employee, within fifteen days, compensation equal to five months' remuneration at the rate applicable at dismissal in October 2023. No order as to costs was made.

Judgment on SAFLII