A former Aspen Pharmacare worker, RM, has been reinstated with back pay after a 10-year legal battle. 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 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.
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 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. 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.
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. The court made no order as to costs.
Key points
- The Labour Court 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.
- The court noted that the employees themselves had already decided to embark on the picket before RM sent his email, and therefore his email could not have incited the picketing.
- The court found that dismissal would have been an inappropriate sanction, even if RM had been found guilty, given the peaceful nature of the picket and RM's genuine belief that it was lawful.
