Aspen worker dismissed for picketing during lunch reinstated with back pay after 10-year legal battle - IOL

Labour Court orders Aspen to reinstate employee dismissed over alleged picket incitement.

A former Aspen Pharmacare worker who was dismissed after being accused of inciting employees to participate in an unlawful picket during their lunch breaks has been reinstated nearly 10 years after his dismissal.

The Labour Court in Gqeberha found that RM's dismissal was substantively unfair and ordered Aspen Pharmacare to reinstate him retrospectively, with back pay for specified periods dating back to September 2016.

RM was dismissed in September 2016 after disciplinary proceedings arising from employees’ participation in picketing at the company in May that year.

RM was employed by Pharmacare, trading as Aspen Pharmacare, as a production technician and was a member of the South African Chemical Workers Union (SACWU).

The dispute arose from picketing by employees on 19 and 20 May 2016.

The company alleged that RM had participated in unprotected industrial action, incited employees to participate in an unlawful picket and incited employees to refuse to stagger their lunch breaks, resulting in an alleged loss of about R337,536.

RM pleaded guilty to participating in the unprotected protest.

However, the disciplinary chairperson found him guilty only of the second charge, inciting employees to participate in an unlawful picket while imposing a final warning for the first charge and finding him not guilty of the third charge.

Aspen subsequently accepted the recommendation that RM’s employment be terminated.

The court heard that on May 19, 2016, employees from the Small Volume Parenteral division and Unit 1 left the company premises during their lunch interval and gathered outside the workplace to protest.

The company issued an ultimatum directing employees to return to work, while also informing SACWU that it regarded the protest as unprotected industrial action.

RM later sent an email to engineering employees stating that workers had resolved to leave their workstations during their breaks and engage in a peaceful picket.

The following day, the picket continued during the employees’ lunch break.

He sent further emails to employees, including one questioning why the company had not stopped them if their conduct was illegal, and another indicating that their actions had “worked” and that they would continue picketing if the company did not meet their demands.

Aspen subsequently approached the Labour Court for urgent relief.

On May 23, 2016, the court issued an interim order declaring the picket unlawful and interdicted employees from continuing to participate in it. 

RM challenged the arbitration award that had found his dismissal substantively fair.

The Labour Court found that the commissioner’s conclusion that RM had incited employees to participate in the unlawful picket was not supported by the evidence.

The court noted that the employees themselves had already decided to embark on the picket before RM sent his 19 May email.

His email was therefore sent after the picket had already started and could not have caused the employees to begin the action.

The court also found that there was no evidence that recipients of the email interpreted it as encouragement to participate in or continue the picket.

The same applied to the emails RM sent on 20 May, as they were sent after employees had already embarked on the lunchtime picket that day. No picketing took place after 20 May.

“Incitement, by its nature, involves conduct that encourages, induces or persuades another person to commit an act,” the court said.

It found it illogical to conclude that RM's emails incited conduct that had already taken place or conduct that never occurred afterwards.

The court consequently found that RM was not guilty of the misconduct alleged against him and that the commissioner’s finding of guilt could not stand.

The court also found that dismissal would have been inappropriate even if RM had been found guilty.

It noted that the picket was conducted peacefully, during employees’ lunch breaks and outside the company’s premises.

RM had also genuinely believed that the picketing was lawful, and SACWU had advised him that it was lawful.

The court found that there was no evidence that RM intended to encourage employees to engage in conduct that he knew was unlawful.

It concluded that these circumstances substantially mitigated the seriousness of the alleged misconduct and made dismissal disproportionate.

The Labour Court also found that Aspen had applied discipline inconsistently.

The company's own evidence showed that four employees, including RM and fellow shop steward PD, faced allegations of incitement.

However, PD received only a final written warning and was not subjected to a disciplinary hearing.

The company was unable to provide a satisfactory explanation for the different treatment. Its human resources representative described it as “probably a mistake”.

The court noted that this was particularly significant because Aspen's evidence was that shop stewards were expected to be dealt with firmly because they were leaders and examples to other employees.

Other shop stewards, including SJ and MD, were also referred to during the proceedings in relation to the disciplinary treatment of employees involved in the picket.

The court concluded that the parity principle had been infringed and that RM’s dismissal could not be reconciled with the treatment of other employees involved in the same events.

RM had sought reinstatement during the arbitration proceedings and again before the Labour Court.

The court found that none of the exceptions to reinstatement under the Labour Relations Act applied and ordered that he be reinstated.

The court therefore ordered reinstatement with back pay for the period from September 8, 2016, to October 3, 2018, and from June 9, 2022, until the date Aspen complies with the judgment.

The court ordered Aspen to reinstate RM retrospectively on the same terms and conditions of employment that existed before his dismissal, without any loss of benefits.

Aspen was also ordered to pay the back pay within 15 court days of the judgment.

Munnick was ordered to report for duty under his reinstated employment contract within three working days of receiving the judgment.

The court made no order as to costs.