Non-ratified treaty¹

Workers’ participation in an illegal strike/ Dismissal without prior interview/ Workers' means of appeal against unfair labour practices/ Deficiency in national legislation/ Reference to the provisions of ILO Convention No. 158 to extend the scope of the hearing prior to dismissal/ Establishment of a jurisprudential principle based on international law

Workers had taken part in a strike which the courts had declared illegal. After issuing an ultimatum to return to work, the employer had dismissed recalcitrant workers without giving them or their representatives an opportunity to present their case. The Court of first instance had ruled that the termination of employment was valid. Faced with a deficiency in national legislation and contradictory case law, the Labour Appeal Court had to decide whether in the event of an illegal strike the employer was nevertheless required to comply with the rule of hearing the workers or their representatives before terminating their employment contracts. 

In order to recognize the obligation to hear the workers prior to dismissal despite the absence of internal provisions on the issue, Judge Zondo relied on the provisions of ILO Convention No. 158 on Termination of Employment² in the majority decision, despite the fact that South Africa had not ratified that Convention:

“The audi approach is in keeping with international standards. This cannot be said of the no audi approach. I say this because, quite clearly, the ILO Convention on Termination of Employment No. 158 of 1982 contains a general rule that an employer must not dismiss a worker for reasons based conduct or work performance without having first given such worker an opportunity to defend himself against the allegations made against him. In this regard the Convention does not say this does not apply to cases where workers are dismissed for striking. On the contrary it should apply also to the dismissal of strikers because those would fall under dismissals for reasons based on the employee’s conduct. The Convention makes provision for one exception which is broad enough to refer to all the exceptions that normally apply to the audi rule. The no audi approach is either directly contrary to the convention or at least it is inconsistent with it.”

Referring to the provisions of ILO Convention No. 158, the Labour Appeal Court considered that the rule that the workers must be heard was applicable to the dismissal of workers who had taken part in an illegal strike. In this instance the workers were reinstated.