The Labour Court in Gqeberha has ordered Aspen Pharmacare to reinstate a production technician it dismissed in September 2016, finding the dismissal substantively unfair. The worker, a shop steward with the South African Chemical Workers Union (SACWU) identified in the judgment only by his initials, RM, will return on his previous terms with no loss of benefits.
The court set aside an arbitration award that had upheld the dismissal. It awarded back pay for two periods: from 8 September 2016 to 3 October 2018, and from 9 June 2022 until Aspen complies with the order. Aspen must pay within 15 court days, and the worker must report for duty within three working days of receiving the judgment. No costs order was made.
The case arose from a two-day protest in May 2016. Employees from two production units left the plant during their lunch breaks and gathered outside the premises. Aspen treated the action as unprotected and obtained an interim Labour Court order declaring it unlawful.
| Date | Event |
|---|---|
| 19–20 May 2016 | Employees picket outside the plant during lunch breaks |
| 23 May 2016 | Labour Court interim order declares the picket unlawful |
| September 2016 | Worker dismissed for inciting the picket |
| Arbitration (date not reported) | Commissioner finds the dismissal fair |
| September 2026 | Labour Court sets aside the award and orders reinstatement |
| Back pay periods | 8 Sept 2016–3 Oct 2018; 9 June 2022 to compliance |
Aspen brought three charges against the worker. The first was taking part in unprotected industrial action, the second was inciting colleagues to join an unlawful picket, and the third was encouraging them not to stagger their lunch breaks. The company put its losses at about R337,536. The worker admitted taking part and received a final warning on that charge. He was cleared of the third charge, but the disciplinary chair found him guilty of incitement, and Aspen dismissed him.
The incitement charge rested on emails the worker sent to engineering staff on both days. These said employees had decided to picket during their breaks and that they would continue if their demands were not met. The court found that employees had already decided to picket before the first email was sent, and that each message went out after that day’s protest had begun. No picketing took place after 20 May. Because incitement means persuading someone to act, the court held that the emails could not have caused conduct that had already happened or that never followed. It also found no evidence that anyone read them as encouragement.
The court said dismissal would have been too harsh even if the charge had been proved. The protest was peaceful, took place off the premises during lunch, and the worker believed it was lawful after SACWU told him it was.
It also found Aspen had treated employees inconsistently. Four workers faced incitement allegations, but another shop steward received only a final written warning without a hearing. Aspen’s human resources witness could not explain the difference. This was despite the company’s evidence that shop stewards were expected to be disciplined more strictly because they led other workers.
Under the Labour Relations Act, a picket is protected only if a registered union authorises it in support of a protected strike or against a lockout. Disputes over lunchtime gatherings have reached the Labour Court before. In July, the court reinstated nine Fraser Alexander employees dismissed over a 2019 lunchtime gathering, finding the company had not proved it was a picket.
Aspen has faced other long-running dismissal cases at its Gqeberha operations. These include the case of Ndumiso Tabata, dismissed in 2014 for late-coming, whose reinstatement award has been in dispute for more than a decade.