Strike cases 2005-2006: an overview

Most of the time we focus on the relationship between the employer and an individual employee, be it unfair labour practices or, in most cases, dismissal in one form or another. In the background, of course, employers and unions continue in their relationship. And, as the security sector strike earlier this year illustrated, things can still go wrong — and badly so. While strikes no longer enjoy quite the prominence and controversy they enjoyed a decade or so ago, they continue to be of considerable relevance, not only for employers, but also for unions. Despite this fact, however, relatively few Labour Court decisions relating to strikes or issues arising from or relating to strikes are reported. Those that do appear, are of some considerable interest, especially if the ground they cover is new.

This editorial looks at most of the important strike cases between January 2005 and July 2006 as reported here on IR Network.

Protected and unprotected strikes

There are two procedural requirements for a strike to be protected: the issue in dispute must be referred to conciliation and the union must give the employer at least 24 hours’ notice of the impending strike. The issue in SATAWU v Coin Reaction (2005) 14 LC 9.5.3 was whether the issue in dispute had been referred to the CCMA for conciliation as required by section 64(1)(a) of the Labour Relations Act. One of the points raised in this case was the employer’s argument that the real issue in dispute was not the same as the dispute that had been referred to conciliation — this meant that the Labour Court again had to consider what the real dispute between the parties was.

Was the dispute about a wage increase or was it about a refusal to bargain? The strike was in support of a wage demand, but the employer argued that the dispute that had been referred related to a refusal to bargain: the refusal to bargain dispute was not the same as the dispute which had been referred to the CCMA. After analysing the facts, the Labour Court came to the conclusion that the wage dispute was the real underlying dispute between the parties. In respect of this dispute, the matter had been referred to conciliation and the strike was therefore protected.

Chubb Guarding SA (Pty) Ltd v SATAWU (2005) 14 LC 9.5.2 related to a secondary strike, whether this strike would be protected with reference to a collective agreement and the requirement that the secondary strike must be reasonable. While only about 60 employees were engaged in the primary strike, about 800 would be out on the secondary strike. If this large-scale secondary strike went ahead, the employer would have to close down its business. One of the questions the Labour Court had to consider in this case was whether the union had to comply with the procedures set out in the collective agreement: in this context, it was argued that principled laid down by the Labour Appeal Court applied — the principle being that a union has a choice whether to follow the procedures set out in a collective agreement or follow the procedures set out in the Labour Relations Act (see County Fair Foods (Pty) Ltd v FAWU & others (2001) 10 LAC 9.5.2 at [15]-[20]). This principle, the Court held, did not apply in the context of a secondary strike and that the provisions of the collective agreement should be complied with. The employer succeeded in obtaining an interdict against the secondary strike.

Picketing

When it comes to picketing, it is not unusual for managers to instruct someone to head outside and make video recordings of the picketers and the way in which they conduct themselves. If there is violence, intimidation or damage to property, the employees can then be identified by referring to the video tape. In Woolworths (Pty) Ltd v SACCAWU & another (2005) 15 LC 9.7.1 things were, however, a bit different. The employer had obtained a temporary interdict restraining the union and the strikers from approaching or being within 500 meters of the perimeter of any of the employer’s distribution centres (commercial centres were also subsequently included). The interdict also prohibited intimidation, assault, harassment and other interference with the employer’s business and the union was restrained from inciting or engaging any persons to commit any of these actions.

The question was whether the terms of the interdict had been contravened. The union denied any contravention, but the Labour Court was shown a video recording of a group of persons (some carrying sticks) who prevented a truck from entering the employer’s premises. Other conduct captured on tape included one person sitting on the road and preventing a truck from entering the employer’s premises. The video showed a group of about 60 people, but none of these were identified as employees and there was no attempt to identify these persons. Not that it would have been difficult for the employer to do, the Court added.

And this proved to be the end of the employer’s case. While the Labour Court would always have sympathy with an employer if violence has erupted during a strike; in situations such as these the Labour Court would readily grant an interdict. But this does not apply in situations where the employees have not been properly identified. The Court stated that it would always take into account the attempts that the employer has made to identify the persons against whom it is seeking an interdict. If it is impossible to identify the employees, then things may well be different, of course — but this depends on the facts.

Even if the employer had put forward just a few names, the Court continued, an interdict could be granted, because the Court would know that the order is directed against some specific individuals. But to grant a “blanket” court order, covering the whole range of the employer’s operations without any attempt to identify the employees concerned would be wrong.

The dismissal of strikers

NUMSA & others v Pro Roof Cape (Pty) Ltd (2005) 14 LC 9.3.1 is a decision made all the more interesting by the fact that the employer bore most of the blame for the dispute arising in the first place. Falling within the registered scope of a bargaining council, the employer was obliged to make payments to the council, including pension benefits, sick pay, administration of the council and a dispute resolution levies. The employer found itself in financial difficulties and fell into arrears. The employees were underpaid and the employer failed to pay them an annual leave bonus as provided by a collective agreement. The council issued compliance orders but, with the assistance of the trade union, the employer successfully obtained a retrospective exemption from the council in respect of some of the payments.

The actual dispute arose because of the employer’s failure to pay leave pay enhancements (a bonus) — the work stoppage occurred as the result of an employee taking leave and being issued with a payslip which did not indicate the leave enhancement bonus. A work stoppage ensued and, after a number of ultimatums were issued to the employees, they were eventually dismissed. The employer did give the trade union an opportunity to make representations as to why the employees should not be dismissed.

The Labour Court came to the conclusion that the employees’ actions fell within the ambit of the definition of a “strike” in section 213 of the Labour Relations Act and that the strike was not protected — the matter in dispute had not been referred to the bargaining council for conciliation, no certificate had been issued that the dispute remained unresolved and the employees did not give 48 hours’ notice of the strike.

Compliance with a recognition agreement and affording striking employees an opportunity to be heard before dismissal were issues raised in Communication Workers' Union & others v South African Post Office Ltd (2004) 13 LC 9.3.1. The recognition agreement provided that the employer undertook not to take disciplinary action against any union member for a period of 24 hours from the commencement of a strike if the strike was in contravention of the recognition agreement itself (if the strike complied with the provisions of the recognition agreement, this grace period would be 72 hours). The fact that the employer had failed to comply with its obligations in this respect was one of the reasons the Labour Court concluded that the dismissal of the strikers was unfair.

The judgment also focused on the employer’s issuing of an ultimatum to the employees. What is required, the Court held, is for the employees to be advised in writing that they are engaged in an unprotected strike. The union should be given an appropriate opportunity under the circumstances to address their members and to try and persuade the employees to return to work. The union must also be allowed to address management on the reasons why their members should not be dismissed. In this case it was clear that the dismissals could have been avoided if the union had been given more time. The employer was entitled to take a firm approach in respect of unprotected strike action, but even so, the employer was not entitled to breach the provisions of the recognition agreement and to take a “mechanistic” and “truncated” approach to the ultimatum issued. This ultimatum, the Court found, significantly contributed to the risk of dismissal rather than a resolution of the matter. The dismissal of the strikers was found to be substantively and procedurally unfair and the Court ordered the reinstatement of the dismissed strikers.

The case of NUMSA & others v Atlantis Forge (Pty) Ltd (2005) 14 LC 9.3.2, a long and complicated case, is of some importance because it deals not only with the fairness of the dismissal of the strikers, but also whether the actions of the employees constituted a strike in the first place. Also arising in this case was the issue of prior warnings and whether these should be taken into account in taking disciplinary action against individual employees.

One question was whether the employees’ leaving their workstations to attend a meeting constituted a strike as defined in section 213 of the Labour Relations Act. The union argued that it was a lawful gathering of the workforce and that it had been duly authorised by management. The Labour Court analyses the evidence in some detail — this is one of the longest decisions to emerge from the Labour Court for some time now. The Labour Court came to the conclusion that the purpose of the work stoppage was to put pressure on management to pay a bonus on a certain date and that this constituted an unprotected strike.

The Labour Court also again emphasises that an employer must act consistently and here it considers, again in some detail, the positions of some of the individual employees, some of whom had prior warnings on file. The disciplinary code provided that warnings expire after six months and that they are then removed from the employee’s file. In this light the Court concluded that the warnings given to some of the employees had lapsed after six months and they ought to have been removed from their files and destroyed. This would have meant that these individual employees would be treated as having a clean disciplinary record when they were next found guilty of misconduct. By differentiating between the strikers in respect of prior warnings, the employer made itself guilty of contemporaneous inconsistency in its disciplinary action — there was no rational or justifiable basis for the differential treatment of the employees. For this reason, the dismissal of a group of the employees was found to be substantively unfair.

But there is more (actually, much more): one employee was dismissed because of the role he played, his failure to obey specific instructions and this not living up to the standards expected of him as a shop steward. The Labour Court concluded, on this point, that his dismissal did not fall beyond the bounds of reasonableness and that it was substantively fair. The fact that he saw himself acting as a shop steward in the situation does not mitigate his conduct — he had no licence to resort to defiance and needless confrontation. He should have used his good sense and follow the instructions and should not have exposed his co-workers to unnecessary risks.

One cannot help but feel some considerable sympathy for the Labour Court in this case: it was certainly not an easy one and the way the parties conducted themselves did nothing to make it easier:

“The conduct of litigation in this matter did not proceed smoothly. The union ranged far and wide, putting almost every pertinent fact in issue, often unnecessarily so. Much time was wasted on irrelevancies, and the matter was on more than one occasion delayed by a lack of preparation. As for the applicants who gave evidence, they were altogether an unimpressive lot. They evaded, obstructed, contradicted themselves, equivocated and sporadically told lies in service of an extremely implausible version. Their case was poorly conceived, badly constructed and exposed at times to be plainly untrue. The finding of substantive unfairness in their favour does nothing to vindicate their behaviour. The finding flows mainly as a consequence of a tactical error on the part of the company to effect selective discipline and the necessity for this Court to enforce legal policy in accordance with the prevailing norms of collective bargaining. It certainly should not serve as any indication that this Court approves of the manner in which the applicants have conducted themselves in their industrial relations or before this Court.” (at [166])

Obtaining an interdict

The employer’s most powerful weapon in the context of an unprotected strike is obtaining an interdict in the Labour Court. This effectively stops a strike dead in its tracks, and for this reason employers and their lawyers carefully analyse strike situations in order to ascertain whether the strike is protected or not — the employer cannot obtain an interdict in respect of a protected strike. But the facts of County Fair Foods (a division of Astral Operations Ltd) v Hotel Liquor Catering Commercial & Allied Workers Union & others (2005) 14 LC 9.5.4 present an interesting spin when it comes to obtaining an interdict.

The employer had concluded a recognition agreement with the union, but shortly thereafter it appeared that the union was no longer representing the majority of employees. The employer notified the union of this fact and that it was suspending the recognition agreement (and pending substantive negotiations) until the union had succeeded in recruiting enough members to make it a majority union again. The union referred a dispute to the CCMA for conciliation, stating that the dispute related to the failure of the parties to reach agreement on wages (the union was demanding a 10% across-the-board increase). Conciliation duly followed, failed, and the certificate of outcome indicated that the dispute, a matter of mutual interest, remained unresolved. Eventually, the union notified the employer that it was embarking on strike action. The employer obtained a temporary interdict — one of the grounds being that the strike was unprotected: it related to a refusal to bargain dispute and therefore an advisory arbitration award was required (section 65(2) of the LRA).

One of the issues the Labour Court had to decide was whether the strike was about the suspension and termination of the recognition agreement or whether it related to the wage increase. If it related to the recognition agreement, the dispute would fall within the scope of a refusal to bargain dispute and the strike would only be protected if an advisory arbitration award had been obtained. The Labour Court found that the employer’s refusal to deal with the wage demand was not because it rejected the demand, but because it had withdrawn recognition. There was no deadlock over proposals and counter-proposals regarding wages; instead, the deadlock arose because the employer refused to bargain with the union. Because there was no advisory arbitration, the Court held, the employer was entitled to the interdict.

But at this point that there is a twist to the tale: section 68(3) of the LRA provides that if the union gives the employer notice of the strike at least 10 days before the strike starts, the employer, when applying for an interdict, must give the union at least 5 days notice of an application for the interdict. While the union had, on the facts, given the employer 10 days’ notice, the employer had failed to give the union the required 5 days’ notice of its application for an interdict. The Labour Court therefore declined to make the temporary interdict a permanent one.

Delictual claims

Mondi Ltd-Mondi Kraft Division v CEPPWAWU & others (2005) 14 LC 9.5.1 is of considerable interest because it relates, in essence, to a claim for delictual damages against a trade union: the employer claimed an about of over R600 000 which it allegedly suffered as a result of the unlawful switching off of its machinery on two days in July 2001. The amount claimed is for loss of production. The employer argued that the union members were acting in furtherance of the strike when they turned off the machine, that they acted on behalf of the union and its members and with the support and encouragement of the union’s office bearers (the shop stewards’ council). Therefore, the argument went, the union was vicariously liable for the loss of production.

This case raised the question of whether the Labour Court has the power to order a union to pay delictual damages in the context of a protected strike. After analysing numerous decisions and the provisions of the Labour Relations Act, the Labour Court came to the conclusion that it did indeed have the power to entertain delictual claims arising out of labour disputes:

“I am of the view that if the Legislature had deemed it necessary to oust the jurisdiction of the Labour Court in delictual claims in a protected strike it would have done so in clear terms. If a broad and purposive view is taken of the Act and the jurisdiction conferred on this Court then it is apparent that this Court has jurisdiction over all strikes and lock-outs and conduct in contemplation or in furtherance of a protected strike or lock-out which constitute both a criminal offence and a delict.” (at [27]).

On the facts and the evidence presented, however, the employer failed to discharge the onus to prove that the union was liable to pay compensation for any damages it suffered as a result of the shut down of the machinery.

Interesting developments

Looking back over the years, it seems that most of the important strike decisions came from the Labour Appeal Court and the Labour Court in the period 1996-2000. Many aspects of our law on strikes now appear to be settled. But as this overview of cases shows, there are always some more issues and factual situations that need to be analysed and decided upon.