SOUTH AFRICA: THE BURDEN OF EMPLOYERS WHEN EMPLOYEES EMBARK ON UNPROTECTED STRIKES
South Africa has a rich history of protest action. When it comes to the workplace, each year there is a period that can be dubbed as ‘strike season’. Ordinarily, this happens when most industries engage in wage negotiations.
The right of each employee to strike is enshrined in section 23 of the Constitution. Section 64 of the Labour Relations Act (LRA) sets out the rules of engagement for employers and employees when it comes to industrial action. However, rules that are set are not always followed. This often happens where strikes are concerned. In instances where the prescripts of section 64 of the LRA have not been followed, such strike is deemed to be unprotected.
Unprotected strikes are frequently riddled with violence, intimidation and damage to property. For employers this is a difficult period where they experience, among others, financial loss, reputational harm, loss of business, and or damage to property.
On the other hand, employees lose their wages for the days they are not at work and risk facing disciplinary action, which may include dismissal, for their conduct of participating in an unprotected strike and their conduct during the unprotected strike. Those employees who choose not to participate in the unprotected strike may, unfortunately, find themselves falling victim to threats, intimidation, and in some cases, damage to their homes.
For an employer the law has developed in a manner which, in my view, creates an onerous burden in dealing with employees engaged in an unprotected strike. Ordinarily, when facing an unprotected strike, employers will approach the Labour Court on an urgent basis for an order declaring, among others, the strike unprotected and interdicting all employees from participating in the unlawful conduct.
Employers are required to satisfy the Court that the matter is urgent and that the unions and or striking employees have been made aware of the court process. This can be challenging as not all employees have email addresses and unions may not always take a call to confirm that they have received urgent application papers as required by the Court.
Further, in order for employers to impute blame on particular individuals for violent conduct or otherwise during an unprotected strike, employers now have a duty to identify the specific individuals who are engaging in the unlawful conduct. This may be difficult to achieve where groups of employees are protesting and where the protest action is violent, or employees are behaving aggressively.
Once a court order is obtained interdicting the unprotected strike, employers are then required to communicate the content of the court order to the striking employees. Again, this can be tough to accomplish when facing an angry crowd of striking employees, especially where the police are reluctant to assist, which is often the case.
In a recent judgment of the Constitutional Court in the case of Numsa obo Aubrey Dhludhlu and 147 Others v Marley Pipe Systems (SA) (Pty) Ltd, a group of 148 employees had been dismissed for participating in an unprotected strike and for assaulting a manager. The Court found, among others, that there must be proof of the employees’ complicity in the acts of violence in order for dismissal to be substantively fair. The employer had failed to show that 41 employees, though they may have been in the vicinity of the strike, were complicit in the assault of the manager and so the Court found that their dismissal on the charge of assault was substantively unfair.
Employees should be encouraged to exercise their right to strike in a lawful manner. Employers should use whatever technology is at their disposal to collate as much evidence as possible to assist in identifying culpable employees for the purpose of taking disciplinary action, and lodging potential claims for damages arising from the losses suffered as a result of the unprotected strike.