Goldplat ordered to reinstate Amcu members

The labour court has ordered Goldplat to reinstate five employees it dismissed for being members of the Association of Mineworkers and Construction Union (Amcu), in a judgment that affirms the right of workers to join unions.

The court ordered their reinstatement with back pay, citing violations of their rights to freedom of association as enshrined in the Labour Relations Act.

The employees were dismissed on August 31 2016 for joining Amcu and recruiting other employees to the union. Goldplat defended its actions by expressing fears of a potential repeat of the Marikana massacre of August 16 2012 in which 34 striking miners were killed. 

“According to the respondent’s only witness, management was concerned that the presence of Amcu may result in ‘another Marikana’,” the court said.

Amcu represents nearly 70% of the Goldplat workforce. Though the union holds organisational and collective bargaining rights, no formal recognition agreement has been established yet.

In 2015, Amcu infiltrated the gold mine, finding that workers were dissatisfied. Employees were represented by an in-house workers’ committee, which was elected by employees to address concerns and grievances. According to the court, the committee was ineffective and was perceived as serving management’s interests rather than the workforce’s.

Many employees felt that the committee was unreliable due to the selective reporting of issues by its chair, and management’s inconsistent responses to critical issues raised.

During the proceedings, Amcu claimed that its members’ dismissals were “automatically unfair” under section 187(1)(d) of the act, and breached their rights to freedom of association protected by section 5 of the act.

The labour court concurred, finding that the company’s actions were driven by hostility towards Amcu.

“In my evaluation of the evidence of the applicants, I have taken into consideration that they are unsophisticated individuals and, in some instances, illiterate,” judge Reynaud Daniels said.

Hostility

He emphasised the challenges faced by the applicants in the courtroom setting, particularly given language barriers and the intimidating environment. Daniels found the testimonies of the dismissed employees to be credible, consistent and corroborated by each other.

He said Goldplat’s management was hostile to Amcu and discouraged its employees from joining the union.

The evidence suggested that the dismissals had a “chilling effect” on union membership.

“The respondent conceded that after the dismissals the union’s membership declined through resignations. However, unsurprisingly, the respondent did not concede that the dismissals were affected to coerce employees to give up their membership,” Daniels said.

The sole witness for Goldplat, a nonexecutive director, admitted that management was apprehensive about Amcu’s presence. However, his evidence was deemed inadmissible due to lack of first-hand knowledge.

Union activities

“The respondent could not show that the individual applicants were guilty of intimidating workers. In the absence of any evidence apart from hearsay, it is hard to understand how the respondent expected to do so,” Daniels said.

He said the dismissals were motivated by the employees’ union activities.

The court ruled that reinstatement was the appropriate remedy for the unfair dismissal.

The judge dismissed Goldplat’s argument that reinstatement would result in retrenchments or impose a compelling operational burden on the company.

“The applicants all seek retrospective reinstatement. The respondent argues that the reinstatement of the applicants would result in retrenchments, and the court should not reinstate because it was not reasonably practicable, as contemplated in section 193(2) of the [act],” Daniels said.

“I do not accept that this satisfies the test — a compelling operational burden.”

GobaN@businesslive.co.za