- Fraser Alexander dismissed nine employees after claiming they staged an illegal picket during their lunch break.
- The workers said they were simply rehearsing wedding songs and dances for a colleague who was about to get married.
- The Labour Court ordered the workers be reinstated with full back pay after deciding the employer could not prove any misconduct.
There are not many labour disputes where a judge must decide if workers were protesting or just helping a colleague get ready for his wedding. But that was the unusual question before the Labour Court in Johannesburg.
Acting Judge M Mkhatshwa was asked to decide whether nine Fraser Alexander employees had staged an illegal picket or simply used their lunch break to rehearse wedding songs and dance moves for a colleague who was about to get married.
After several days of evidence, the judge decided the employer could not prove its story. The court found the dismissals of the nine AMCU members were both procedurally and substantively unfair and ordered they get their jobs back with no loss of pay or benefits.
A lunchtime gathering became a dismissal
The dispute began on 22 August 2019 at Evander Gold Mine, where Fraser Alexander provided mining services. During their lunch break, the employees gathered outside the operational area, singing, dancing, and carrying placards. What happened next would eventually go before the Labour Court.
Fraser Alexander argued the gathering was an unprotected and illegal picket linked to an ongoing dispute over proposed changes to overtime payments. The company had been trying to reduce Sunday overtime from 2.5 times the normal hourly rate to 1.5 times, a move that had sparked opposition from AMCU members and prompted discussions through the CCMA.
According to the employer, the workers used the lunchtime gathering to protest those changes by carrying placards and singing anti-company slogans. According to the company, the workers displayed placards with slogans like “we want our money back” and sang “down with Fraser Alexander, up with AMCU,” all without following the legal steps needed for strike action.
The employees, however, told a very different story. They said their colleague, Obed Mashifane, was getting married the following month. Because they lived in different areas and often worked long hours, lunch was the only time they could practise traditional wedding songs and dances together.
Mashifane told the court they chose an area outside the plant so they would not interfere with work or traffic. He said the songs they sang included lyrics like “semotshweri tshweri senatla,” which is a traditional wedding song. He also denied anyone sang anti-company slogans or carried placards demanding money.
The employer’s case began to unravel
Central to the judgment was whether Fraser Alexander could actually prove the employees had engaged in illegal picketing. Judge Mkhatshwa found that it could not.
Supervisors claimed they heard protest songs and saw slogans on the placards, but the company produced no photos, no video footage, and no independent witnesses to back up those claims. The employer said CCTV footage had been stored on a hard drive that was later stolen during a hijacking. But the driver was never called to testify, there were no backup copies, and none of the managers presents thought to record the incident on their cellphones.
Judge Mkhatshwa described this as another lost opportunity for the employer to get clear proof for its case. He said it might seem unusual for wedding preparations to include printing placards, but courts do not decide cases based on what seems odd. The employer had to prove misconduct, and it failed to do so.
No disruption, no violence, and no ultimatum
The court found there was little evidence the lunchtime gathering caused any operational disruption. A pump briefly tripped during lunch, but employee Moses Mokoena left the gathering, reset it, and returned. Production continued after lunch, and some employees even worked overtime that same day.
Judge Mkhatshwa also noted the gathering lasted about 30 minutes, happened during lunch, and involved no violence, no intimidation, no property damage, and no blocked traffic.
Even if the employer had been right that it was an illegal picket, the company still did not deal with it appropriately. Management was told by human resources not to engage with the workers. No one told them to stop singing, no ultimatum was issued, and no chance was given to correct what the employer later claimed was misconduct. Instead, after a call from their union representative, the employees immediately went back to work.
Contract losses not linked to the incident
Fraser Alexander argued the incident led to losing part of its contract with the client mine and eventually the entire contract. The court did not accept that argument. Judge Mkhatshwa found there was no evidence production was seriously affected on the day and noted the contract was only reduced about six months later before ending more than two years after the incident.
The court must accept that the events of 22 August 2019 were neither the sole cause nor the main cause of the contract ending, the judge said.
Workers get their jobs back
Fraser Alexander said reinstatement was impossible because it no longer operated at the Evander site. The employees pointed out the company continued operating elsewhere and said they were willing to work at any of its other operations, even those outside South Africa.
The court accepted that giving the workers their jobs back was still a practical remedy. Judge Mkhatshwa found the dismissals were both procedurally and substantively unfair.
The judge ordered the workers be reinstated from the date of their dismissal with no loss of remuneration or benefits and told them to return to work within 10 working days. The employer’s counterclaim was dismissed. There was no order as to costs.
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