Legal Eagle:TSI Holdings VS NUMSA

TSI Holdings vs Numsa
Workers wanting management to take action against those who insist on referring to others with racist and derogatory terms like “kaffir” have received a blow. A recent Appeal Court judgment has ruled that workers’ demand to have a manager dismissed for doing this would have been “unfair”. Neo Ramafalo reports.
Workers at TSI Holdings went on strike because one of the managers, a Mr Attie van Zyl, had been calling workers “kaffirs and bobbejane”.Workers lodged grievances as a result of the manager’s conduct.At the meeting to deal with the grievance, Mr van Zyl stated that he did not swear at the workers in a personal manner.When the matter could not be resolved satisfactorily to both parties, the matter was referred to the CCMA with the workers demanding, “dismissal of the racist manager”.The CCMA declared the issue unresolved. A 48-hour notice to strike was then given to the company on October 31 2003.The workers then went on strike and the company tried to interdict them.

Issues for discussion:

Have you had similar problems in your factory?
How did you deal with them or how should we deal with them?
An interim order was granted against the workers but the Labour Court refused to confirm the final order. Fulton AJ found that the demand for Mr van Zyl’s dismissal was not necessarily a demand that he be dismissed unfairly or without a hearing. For that reason she held that it could not be said that the demand was one that required the company to act unlawfully in the sense of breaching the LRA. Accordingly she held that the strike was a protected strike.However the company took the matter on appeal. On appeal, Judge Zondo found that the issue in dispute was the workers’ demand that Van Zyl be dismissed. He found that on the evidence before him, van Zyl’s dismissal, as demanded by the workers would have been without a fair reason and in breach of the rights provided for in Section 185 read with Section 188 of the Labour Relations Act.
Section 185 and 188 of the Labour Relations Act

185. Right not to be unfairly dismissed or subjected to unfair labour practice

Every employee has the right not to be- (a) unfairly dismissed; and(b) subjected to unfair labour practice.

188. Other unfair dismissals

(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove- (a) that the reason for dismissal is a fair reason- (i) related to the employee’s conduct or capacity; or (ii) based on the employer’s operational requirements; and (b) that the dismissal was effected in accordance with a fair procedure. (2) Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.