In the recent Judgment of County Fair Foods, a division of Astral Operations Limited v FAWU & Others [CA02/2017] the Labour Appeal Court was confronted with a question which employers often face: how many "final" ultimatums must an employer give to workers who embark on unprotected strike action, before they can be dismissed fairly?
 
When is "final" final?  Must a "final ultimatum" be regarded as something which if merely a rough guide for when it is safe to start dismissing unprotected strikers?  What if the deadline is missed by only a few hours or days – will dismissal be justified?
 
These issues arose in this matter.  In 2010 County Fair informed its staff that annual discretionary bonuses would not be paid due to its dire financial position at the time.  In response, and on 15 December 2010, more than 200 employees of County Fair downed tools and embarked on an unprotected strike.  The strike was peaceful.  Three ultimatums were issued to the employees, including a final ultimatum.  A number of employees returned to work on 15 December 2010 and 17 December 2010, heeding to the ultimatums.  They received final written warnings for participating in an unprotected strike. The remainder of the employees failed to comply with the final ultimatum and did not return to work on 17 December 2010.  This was so despite the final ultimatum being extended to provide additional time for them to do so. The remaining strikers returned to work on Monday 20 December 2010.  They were suspended and later appeared at disciplinary hearings where they were charged with and found guilty of unprotected strike action.  They were dismissed.
 
Their union argued that the dismissal of these employees was too harsh, especially if one considered that their colleagues, who returned to work on Friday 15 December 2010, only received a final written warning.  The Company argued that the dismissed employees should be distinguished from their colleagues who received final written warnings on the basis that the dismissed employees had not heeded the Company's final ultimatum.  Their colleagues had.
 
The Labour Court found the dismissals unfair on the basis that the sanction was too harsh.  The Court ruled that since the dismissed employees had only remained on strike for an extra 1½ days, compared to their colleagues who came back to work on 17 December 2010 (and earlier), dismissal was too big a jump in severity of sanction.
 
On appeal the LAC noted that the three ultimatums given to the employees cautioned them to halt the unprotected strike and return to work, failing which they would risk dismissal. There was no dispute that the ultimatums complied with item 6(2) of Schedule 8 of the Labour Relations Act and that they stated in clear language what the consequences would be for the striker if they failed to heed the ultimatums.  The ultimatums gave the strikers adequate opportunity to reflect on their conduct and to desist from it. As a consequence, and following the first ultimatum, 64 employees returned to work and, in response to the final ultimatum, a further 58 employees resumed their work.
 
The LAC concluded that the conduct of the dismissed employees in failing to adhere to the terms of the final ultimatum given to them, distinguished them from their fellow employees who returned to work. Consequently, their conduct could on the facts clearly be differentiated from that of the other striking employees and the LAC ultimately determined that the sanction of dismissal was fair.  The LAC ruled that County Fair was not capricious nor selective in its approach; the collective activity of the dismissed employees could legitimately be differentiated from the employees who complied with the final and earlier ultimatums. This constituted a material distinguishing feature between the different groups of employees.
 
In reaching this decision, and in regards to the appropriateness of dismissal as a sanction, the LAC had regard to the fact that the dismissed employees persistently refused, without any bona fide reason provided, to comply with the repeated ultimatums given to them.  This included the final ultimatum calling on them to return to work.  The final ultimatum was extended to provide the dismissed employees with further time to comply, to no avail.  The dismissed employees decided to embark on the unprotected strike action at a critical business period of County Fair and no remorse was shown for this conduct by the dismissed employees.  All these factors indicated that dismissal was a fair sanction.
 
This case demonstrates that a final ultimatum issued in the appropriate circumstances can be a factor distinguishing one group of employees from another when it comes to the sanction to be imposed on unprotected strikers.

Written by Jacques van Wyk, director and Michiel Heyns, senior associate Werksmans Attorneys