The Constitutional Court (CC) recently decided the lawfulness of a trade union's demand in the context of a dismissal in the decision of National Union of Public Service & Allied Workers Union obo Mani and Nine Others v National Lotteries Board [2014] ZACC 10.

The matter arose when the employees of the National Lotteries Board (NLB), through their shop stewards, wrote a letter to the NLB raising grievances and "urging" the removal of the CEO. This letter thereafter made its way to the press and was published in the Mail and Guardian.

The published letter expressed a vote of no confidence in the CEO and carefully worded the employees' demands to inter alia the following:-

"… We, as the employees are no longer prepared to bear with him anymore (referring to the CEO) and in light of the above, we urge the Board to request Prof X to resign and further look at a suitable settlement for him as deemed fit by the Board. Failing which, Prof X must be relieved of his duties…"

"We further urge the Board to take this matter seriously as we are no longer prepared to spend a day with Prof X in the same building with him at the helm of this organisation. We further urge the Board to ensure that June 30th 2008 is the last day of his employment."

The NLB thereafter charged the employees for insubordination, based on the their published 'threat' not to work as contained in the letter as well as on the basis that the published letter brought the company and the CEO's name into disrepute. The NLB also viewed the demand for the CEO's removal as unlawful.

The employees were given an opportunity to apologise for their misconduct and undertake in writing to disassociate themselves from such conduct.

Those of the employees who acknowledged their wrongdoing and disassociated themselves from the conduct in question were given written warnings, but the ten who refused were dismissed pursuant to a disciplinary hearing.

The matter first came before the Labour Court, where it was found that although a union may vigorously pursue the rights of its members, the right to freedom of expression does not afford a union and its members the right to engage in freedom of expression without consequence. Therefore the dismissals were found to be fair.

Both the Labour Court as well as the Labour Appeal Court refused the employees leave to appeal and the employees thereafter petitioned the Supreme Court of Appeal (SCA).

The SCA held that in the present case the threat to defy the NLB's request for an undertaking and consequent demand regarding its CEO constituted insubordination. Furthermore, the cause of their dismissal was the offensive content the employees had communicated in the petition, not the act of petitioning itself. The appeal to the SCA was therefore unsuccessful.

The CC was thereafter called upon to ultimately determine the fairness of the dismissals and found same to be automatically unfair. The CC's finding was that the statements made by the employees were made in the pursuit of the on-going statutory conciliation process before the Commission for Conciliation, Mediation and Arbitration (CCMA) and was in the exercise and pursuance of their rights to participate in collective bargaining.

Furthermore, the CC held that there was nothing wrong with the published letter as the employees were entitled to associate themselves with same. The Court further took a 'form over substance' approach and by placing emphasis on the use of the word 'urge' contained in the petition and in doing so found that the employees had not made an unlawful demand.

As a general rule and as pointed out by the CC, petitioning an employer to dismiss another employee is not a lawful union activity protected under the Labour Relations Act, No. 66 of 1995, however, the court found that the use of the word "urge" did not amount to a demand but rather to a strong recommendation.

In amplification thereof, the conduct of the employees and the publication of the letter was said to amount to an exercise of the right to freedom of expression, which falls within the ambit of s16 of the Constitution.

Employers should therefore be cautious in examining the wording contained in letters of demand which are received from trade unions, as the union could try to escape the consequences occasioned by what on the face of it appears to be an unlawful demand through the simple and careful wording thereof.

This case will come as cause for concern for many employers.