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Legal  |  Legal

Last updated: 11 December 2008

Albany workers retrenched for attempted assassination of manager

On December 2006, 50 Albany workers went on a strike against being forced to work on a public holiday by the management, when the strike ended and workers returned back to work. Late January 2007, around 06h00 in the morning, the factory manager was shot at in what appeared to be an attempted assassination at the company's premises. All the workers who were on that shift were taken for questioning by the SAPS.

Subsequent to that, and when the police could not figure out as to fired the shot, the company initially suspended every worker who participated on the strike on the basis that all of them who resisted changes were suspect of being involved on the attempted life of the manager.

The company, to our dismay, issued all the suspended workers with section 189A NOTICE, meaning that they intended to retrench them and invited the union into a facilitation process through the CCMA. At the first CCMA meeting I objected to CCMA hearing the dispute on the basis that reasons for such retrenchment are in fact those of misconduct and therefore the company must use disciplinary hearings procedure. CCMA agreed with me but the company approached the court which ruled that the CCMA has jurisdiction to hear the matter, subsequent to a facilitation meeting under the CCMA auspices, the company insisted that all workers undergo a polygraphic test and those who passed it, to return back to work and those who fail and refused it to be retrenched. In short 31 employees were retrenched for failing the test and those who refused to do it. We have challenged their dismissal in court and the trial was held at Cape Town labour court for a whole week in November 2008 and we will be back in court on FEBRUARY 2009 to hear the testimony of expect witnesses regarding the reliability of using the polygraphic test.

This case is of utmost importance to the labour movement in generally, cause if we loose it, that will mean that the employers will easily resort to retrenching workers if they cannot prove on the balance of probabilities the guiltiness of their employees. We are confident of being victorious on this case, as the law is definitely clear as to on what basis should section 189 be invoked. In a nutshell, our argument is simple that you cannot substitute a misconduct hearing with a retrenchment process.

We will definitely keep you posted of the outcome, watch this space.

Amandla

Vusumzi Landu

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