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National Union of Metal Workers of South Africa and Others v Aveng Trident Steel (a division of Aveng Africa (Pty) Ltd) and Another (CCT178/19) [2020] ZACC 23

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National Union of Metal Workers of South Africa and Others v Aveng Trident Steel (a division of Aveng Africa (Pty) Ltd) and Another (CCT178/19) [2020] ZACC 23

27th October 2020

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[1] This case concerns the plight of 733 employees who were dismissed for what the employer described as operational requirements.  The issues surface in this application for leave to appeal by the National Union of Metal Workers of South Africa (NUMSA) on behalf of its members, the second to further applicants, against the judgment and order of the Labour Appeal Court.[1]  That Court confirmed the decision of the Labour Court which held that the dismissal of the second to further applicants – as employees – was not automatically unfair in terms of section 187(1)(c) of the Labour Relations Act[2] (LRA).[3]  Section 187(1)(c) provides:

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“(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5, or if the reason for the dismissal is—

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(c) a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer”.[4]

[2] The core issues at the Labour Court, the Labour Appeal Court and this Court remain unchanged.  The crux of the matter is whether the dismissal of the second to further applicants was automatically unfair in terms of section 187(1)(c) of the LRA, or whether it was based on the first respondent’s operational requirements per sections 188 and 189 of the LRA, which dismissals are not automatically unfair.  Key to this enquiry is whether the second to further applicants were dismissed for refusing to accept a demand in respect of a matter of mutual interest between them and the first respondent.  The matter brings to the fore the proper interpretation of section 187(1)(c) of the LRA.

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