The recent Labour Court judgment in AMCU and Others v Northern Coal (JS491/23) (30 April 2026) serves as an important reminder that even where employees participate in an unprotected strike, dismissal does not follow as a matter of course.
The matter arose after employees at Northern Coal’s Mimosa Colliery received payslips which omitted substantial overtime payments. The shortfall represented approximately 30% of the employees’ anticipated earnings. Following receipt of the payslips, employees withheld their labour for approximately four-and-a-half hours while the Company attempted to resolve the issue. While the employees attempted to argue that they had been instructed not to work by their shift supervisor while the payroll issue was resolved, the Court found that the most likely version of events was that the shift supervisor had merely told the employees to ‘wait’ while the issue was resolved. The Court found it unlikely that the shift supervisor would have actually told the employees to down tools, or that the employees would have understood him to mean as much.
The Company subsequently dismissed the employees for participating in an unprotected strike and instituted a damages claim exceeding R2 million against both the employees and AMCU arising from alleged production losses suffered during the stoppage.
The Labour Court confirmed that the employees’ conduct constituted participation in an unprotected strike and rejected the contention that they were entitled to collectively withhold their labour based on a perceived breach of contract by the Company. In doing so, the Court reaffirmed that collective withholding of labour in response to contractual or payroll grievances will generally constitute strike action regulated by the Labour Relations Act 66 of 1995 (“the LRA”) and may not lawfully occur without compliance with the prescribed statutory procedures.
Despite finding that the strike was unprotected, the Court nevertheless held that the dismissals were substantively unfair and ordered retrospective reinstatement with full backpay.
A central difficulty for the Company was the manner in which the situation was handled once the dispute arose. The payroll error originated entirely from the Company’s failure to correctly process overtime claims. The Court was critical of the fact that the senior managers did not directly address the employees, no meaningful collective engagement took place, and communication occurred indirectly through supervisors and selected individuals.
The case is a warning to employers that even where strike action is clearly unprotected, dismissal may still be found to be unfair if the Company cannot, amongst other things, demonstrate meaningful attempts to engage employees, issue proper ultimatums and de-escalate the situation before disciplinary action is implemented.
Although the Company alleged that ultimatums had been issued, the Court found insufficient evidence that clear ultimatums had been properly communicated directly to the employees. The judgment suggests that the outcome may have been different if senior management had personally engaged employees at the workplace, involved recognised Union representatives immediately, clearly communicated lawful ultimatums directly to the workforce, properly recorded those ultimatums, and afforded employees a reasonable opportunity to reflect on the consequences of failing to return to work.
The Court also attached significance to the fact that the strike was relatively short, peaceful, and triggered by a serious payroll error which materially affected employees’ earnings. There was no evidence of violence, intimidation, operational sabotage, ongoing misconduct, or any breakdown in the trust relationship after the employees returned to work.
The Court’s treatment of the Company’s damages claim under section 68(1)(b) of the LRA is equally significant. The claim was dismissed in its entirety despite the finding that the strike was unprotected. The judgment makes it clear that participation in an unprotected strike alone will not necessarily justify a damages award against employees or a Union, as courts will consider broader questions of fairness, equity and proportionality after considering the factors mentioned in section 68(1)(b) of the LRA.
In dismissing the counterclaim, the Court noted that the strike involved members of both AMCU and NUM, yet the Company pursued relief only against AMCU and its members. The Court further found no evidence that AMCU had encouraged, organised, supported or prolonged the strike, or that Union officials were even aware of the work stoppage while it was underway.
It was further accepted that the strike was spontaneous rather than premeditated, was not accompanied by violence or intimidation, and arose directly from the Company’s own payroll failures. These factors weighed heavily against the granting of compensation.
The judgment also provides guidance on circumstances where dismissals and compensation claims are more likely to succeed. The Court distinguished this matter from cases involving prolonged or strategically organised industrial action, particularly where Unions ignored court interdicts, actively encouraged unlawful conduct, failed to distance themselves from the strike, or where employers were able to demonstrate substantial operational harm together with proper procedural intervention.
Ultimately, the judgment reinforces the importance of proper strike management, which may include immediate operational intervention, careful documentation, direct engagement with employees, involvement of recognised Union representatives, properly communicated ultimatums, and measured decision-making before dismissal is imposed.
For employers, the decision is a reminder that the substantive fairness enquiry in unprotected strike dismissals remains highly fact-specific. Even where misconduct is established, courts will still closely examine the employer’s conduct, the proportionality of dismissal, and whether the employer acted reasonably in attempting to resolve the dispute before terminating employment.
Employers should review strike management protocols, disciplinary procedures, communication strategies and contingency planning to minimise operational risk and improve the prospects of successfully defending dismissals or pursuing compensation where unlawful industrial action occurs.
