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THE LABOUR COURT OF SOUTH AFRICA,
CASE NO: J 1995/13
In the matter between:
ASSOCIATION OF MINEWORKERS AND CONSTRUCTION UNION
APPLICANTS APPEARING IN ANNEXURE A
Second to Further Applicants
ANGLOGOLD ASHANTI LIMITED Respondent
Heard: 3-5, 10,-12, 6 19 February 23 March and 15 May 2015 Delivered: 3 November 2015 Summary: (Unprotected Strike Automatically unfair dismissal based on union membership substantively and procedurally unfair dismissal relief Effect of s 54 Notice under MHSA on strike).
 This case concerns the fairness of the dismissal of 539 employees of the
respondent arising from their alleged participation in an unprotected strike
on Saturday, 20 April 2013. Whether or not there was a strike on that day
is in dispute, though the applicants accept that if it is proven that there was
a strike it was an unprotected one. One of the unusual complicating
factors in the case is that the normal operations of the mine were
suspended during the period when the alleged action took place for
reasons that are set out in more detail below.
 The dispute about the fairness of the dismissals is a multi-layered one of
alternative claims ranging from automatically unfair dismissal to
substantively and procedurally unfair dismissal. A thread in the claims of
automatically unfair dismissal and the alternative claim of ordinary unfair
dismissal is that the 539 workers dismissed in consequence of this event
were only AMCU members, whereas at least 500 others who did not report
for duty were not dismissed. Another important strand is that AGA did not
deal with the applicants or the union in the same way that it had dealt with
far more serious industrial action at Mponeng and Tautona mines, where
nobody had been dismissed for participating in unprotected strike action.
 At the time of the events in April 2013, AMCUs membership at Moab
Khotsong was 799 and NUMs 3 366 out of a total workforce of 4646, or
17 % and 71 % respectively. Although various figures were presented in
the course of the trial, from the most definite ones provided by Mr W van
Heerden who was the Senior HR Manager at Moab Khotsong (van
Heerden) it appears that 1924 (63 %) of the 3043 miners rostered to
work did report for duty on their Saturday shift of 19 or 20 April. During
evidence, this figure was broken down as follows: 142 out of 420 workers
rostered (34%) reported for duty on the night shift; 933 out of 2463
workers rostered (38%) reported for duty on the day shift, and 44 out of
160 workers rostered (34%) reported for duty on the afternoon shift.
According to van Heerden, a 10 % shortfall on full attendance would have
 Van Heerden and Madondo also testified, though none of this information
had been tested with the applicants witnesses who had reported for work,
that 112, 759 and 29 team leaders, miners and shift bosses clocked in
underground on the night shift, day shift and afternoon shifts starting on 19
and 20 April. Correspondingly, 31, 174 and 50 surface staff clocked in for
the same shifts, though some of the supervisory staff would have been
attending training on account of the suspension of normal mining
operations and the conditions governing the suspension.. Van Heerden
claimed that the training which took place at Gateway training centre was
scheduled in such a way that some supervisors would have gone on
Friday and others on Saturday, which is something confirmed by a shift
boss who testified.
 A total of 585 employees, all of whom were AMCU members, were
charged for participating in the alleged strike. Of these, 323 employees
attended hearings and appeals. Of AMCUs 799 members 539, or two-
thirds of them, were dismissed. Of those members who were dismissed,
more than 200 did not attend a disciplinary hearing. No NUM members
were charged for participating in the alleged strike.
 Of AMCUs members, 243 remained employed after the dismissals.
Nearly 168 of them did report for work either on 19 or 20 April and were
not dismissed. A further 16 who attended training at the gateway training
centre and another 13 who reported to the helipad on 20 April were also
not dismissed. In addition, 46 who were accused of participating in the
strike were found not guilty and consequently escaped dismissal.
According to statistics provided by the company, of the total number of
1512 employees living at the Itireleng hostel on the mine premises, only
195 were applicants, amounting to about one third of the AMCU members
charged for striking and just over 36 % of all those dismissed.. According
to the uncontested evidence of Mr I Jacobs, Vice President of Labour
Relations for Anglo gold Ashanti (AGA) in South Africa (Jacobs) the
remaining two thirds of the workforce live in AGA villages in the
neighbouring towns and travel to work using public transport or their own
 There are also unfair dismissal claims for misconduct pending in respect of
17 alleged instigators of the strike and the local AMCU leadership (the top
seven) at Moab Khotsong, which did not form part of these proceedings.
 There are also a number of ancillary matters the court had to determine
including the appropriate relief that should be granted to a group of
identified employees whom the respondent concedes should not have
been dismissed for alleged participation in an unprotected strike, because
they had some or other acceptable justification for not being at work on the
day in question. This group comprised in all, approximately 37 of the
applicants. During the course of hearing evidence, AGA tendered to
reinstate some of those in this group, some with immediate and full
retrospective effect. In the case of others, the only dispute remaining is to
what extent their reinstatement should be retrospective.
 At the start of the proceedings the parties conducted an in loco inspection
encompassing the Vaal region operations of AGA in which the relevant
events took place. The locations observed in the course of that inspection
were confirmed by the evidence of a security superintendent for AGA, who
had been the guide during the inspection. The Vaal region mines consist
of Kopanong, Moab Khotsong and Great Noligwa.
 The main events at Moab Khotsong canvassed in the evidence took place
in the vicinity of the Itireleng hostel complex (sometimes referred to as no
1 shaft) on mine property, the Moab Khotsong mine itself (no 11 shaft); a
recreation facility, where the disciplinary process was conducted, known
as Eagles Roost, and the Gateway training centre. All of these locations
are at least a few kilometres apart on the West Vaal region property.
 Although there are some important disputes of fact the overall chronology
of events pertinent to this matter not in dispute and appear in the outline of
events and evidence below.
The 2012 unprotected strike in the gold industry and its aftermath
 Following the tumultuous and tragic events of August 2012 arising from
the unprotected strike supported by AMCU members employed at Lonmin
Platinum, parts of the gold mine industry also experienced a prolonged
unprotected wage strike which lasted from 22 September to 23 October
2012. The core demand was the demand for a wage of R 12500. The
strike heralded the rise of AMCU as a major role player in organised
labour at the respondents gold mining operations in the respondents
West Wits and Vaal River Regions respectively. The West Wits region
comprises Mponeng, Savuka and Tautona mines and the Vaal River
Region consists of Mophotsong, Kopanong and Great Noligwa mines.
 The unprotected strike ended when a 2% increase was concluded with
worker representatives in a labour forum, which - as one AGA witness
described it - morphed into AMCU. According to AGA it was understood
as part of the settlement that even though the strikers would return to work
and would not be dismissed for their participation in the unprotected strike,
disciplinary action would still be taken against them. In October it was
conveyed to AMCU that all the participants in the unprotected strike would
have a final written warning entered on their records. However, this
decision was not immediately relayed to individual employees and the final
written warning was only entered on their records at different dates at the
different mines. How it was dealt with at each mine is mentioned below.
 Jacobs testified that AGA did not dismiss workers because it was
recognised that AMCU was newcomer to the industry and it was
necessary to integrate it into the industrial relations infrastructure. In
addition, it was virtually impossible to dismiss the number of workers
involved in the strike.
The sit-ins at Mponeng and Tautona after