Employees who participate in a strike which does not comply with the terms of the Labour Relations Act are referred to as “unprotected” strikes.
The Code of Good Practice on Dismissal (the “Code”) serves as a guideline to employers on how to deal with employees who participate in unprotected strike action.
An employer who is subjected to an unprotected strike should, at the earliest opportunity, request a trade union official to speak to the strikers. The official should be requested to inform the striking employees that they are liable to be dismissed and to persuade them to return to work.
The employer should also issue an ultimatum to employees that should state in clear and unambiguous terms what is required of them and what sanction will be imposed if they do not comply with the ultimatum. The purpose of the ultimatum serves as a warning to striking employees that time is running out and that, unless they desist from their conduct within a specified time, certain consequences will follow. An ultimatum is essentially a warning prior to dismissal. In NUM & others v Billard Contractors CC & another (2006) 12 BLLR 1191 (LC) , the Labour Court required that a hearing must be held before an ultimatum is issued. Material to this hearing is whether the strikers are engaged in an unprotected strike and, if so, whether it would be fair to dismiss strikers who might fail to comply with the ultimatum. This hearing need not be a full hearing, inviting employees to submit written representations may suffice.
The employees must be provided with sufficient time to reflect on and respond to the ultimatum either by complying with it or rejecting it.
The Code does not provide any guidance on circumstances that may justify the decision to issue an ultimatum. An ultimatum issued within minutes of the commencement of a strike may be deemed unreasonable if the strike was a spontaneous reaction to a justifiable grievance and would probably not have lasted too long.
It is imperative that the striker employees understand the ultimatum and the consequences of not complying with the ultimatum. The ultimatum should be in writing and must be in a language which the employees understand. The employer may be required in certain circumstances to explain the ultimatum to employees.
Employees must again be afforded the right to be heard before they are dismissed. This hearing will primarily determine if the employees continued to participate in the strike after receipt of the ultimatum.
In the judgment of Modise & Others vs Steve's Spar Blackheath (2000) 21 ILJ 519 (LAC), the court held that dismissal was substantively fair when workers participated in an unprotected strike. What must be noted however is that the court found that the dismissal was procedurally unfair because the employer had not issued workers with a proper ultimatum informing them that their actions are unlawful and furthermore informing them of the consequences of participating in the unprotected strike. Secondly, the employees must always receive an opportunity to be heard irrespective of the fact that the ultimatum had been given. The purpose of the hearing is to give employees an opportunity to state why they should not be dismissed and why they participated in the strike action in the first place, where instances of intimidation would be taken into account. The onus however of justifying non-compliance rests on the strikers. The ultimatum given must also be communicated to the strikers in clear, unambiguous terms in a medium understood by all workers as not just any ultimatum will do.
Dismissal therefore is not always the appropriate sanction for employees embarking on unprotected strike action and therefore caution should be taken by the employer in making such a decision without consulting an expert labour law advisor on the matter.
Secondly, just because employees down tools, it does not mean that a strike has taken place as there must be a dispute between the employer and the employees or the trade union over a matter of mutual interest where the employees or trade union demand that the employer accept their demands. In most cases, where employees have the right to refer the matter to arbitration, they may not exercise their right to strike. Downing of tools in the absence of a dispute over a matter of mutual interest may be viewed as either a dereliction of duties or breach of employment contract.
The Code provides that participation in an unprotected strike constitutes misconduct. However, just as all dismissals, a dismissal for participating in unprotected strike action must be substantively fair. The following factors should be considered:
1. The seriousness of the contravention of the LRA, an example would be if striking employees gave 36 hours notice of their intention to strike, instead of 48 hours notice it may well not warrant a dismissal, if the striking employees totally disregarded or ignored the terms of the Act in every way, this would be regarded as a more serious misconduct;
2. if the striking employees totally disregarded or ignored the terms of the Act in every way, this would be regarded as a more serious misconduct;
3. if they were unable for some good reason to comply with provisions of section 64 of the Labour Relations Act , but tried to do so, this would be a less serious misconduct; if an employer acted in an unacceptable or unfair manner, e.g. fires a group of employees for no reason this can lead to a sudden and spontaneous strike; and
4. The employer's conduct in acting as he did would be taken into account should the striking employees be dismissed.
Employers should however be mindful of the fact that the courts are reluctant to uphold the mass dismissals of strikers. In a number of cases, the employees were reinstated without retrospective effect.
In Performing Arts Council of the Transvaal v Paper Printing Wood & Allied Workers Union & others (1995) 16 ILJ 233 (IC), the employees embarked on an illegal strike pertaining to a recognition dispute. It appears as if the strike lasted for approximately 1¼ hours and there was no damage to property. The Industrial Court had reinstated the employees retrospectively for a period of six months. The Appellate Division set out the factors which ought to be considered in matters of this nature:
1. The illegal and unacceptable conduct of the employees which clearly constituted an unfair labour practice on their part, and also a breach of their employment contracts.
2. The overhasty dismissal of the employees which I have already held also constituted an unfair labour practice.
3. The substantial length of service of the majority of the employees.
4. The short duration of the strike at the time of the unfair dismissal.
5. The absence of prior improper conduct by the employees.
6. The likelihood that if a fair and reasonable ultimatum had been given to the employees the strike would have been of very short duration.
The Court expressed the view that the Industrial Court should have marked its disapproval of the misconduct of the employees by refusing them any back pay.
In NUMSA & others v Atlantis Forge (Pty) Ltd (2005) 26 ILJ 1984 LC, the employees had embarked on an unprotected strike that lasted for approximately 1¾ hour due to a problem with the payment of bonuses. They were not unruly and went back to work when told to do so by a union official. The Labour Court stated that dismissal for all the employees may very well have been justified, but reinstated the employees without retrospective effect.
In FAWU & others v Rainbow Chicken Farms (2000) 21 ILJ 615 (LC), the employees stayed away on a religious day, having tendered to work in on a Saturday. The court reinstated them, but declined to do so with retrospective effect because they had given short notice of their intention to stay away and had challenged the Respondent’s authority.
In NUMSA & others v The Benicon Group (1997) 18 ILJ 123 (LAC), a matter which dealt with a stay away, the Labour Appeal Court declined to reinstate with retrospective effect, inter alia due to the fact that the stay away did in fact constitute misconduct.
In National Union of Metalworkers of SA & others v Fibre Flair CC t/a Kango Canopies (1999) 20 ILJ 1859 (LC), the employees embarked on a 35 minute march as part of a national demonstration. Employees on a final written warning were dismissed. The Labour Court reinstated the employees but declined to make the order retrospective as a mark of its disapproval of the misconduct of the employees. The Labour Appeal Court declined to make the reinstatement retrospective on appeal.
Where a strike is unprotected, the Labour Court may, in addition to granting an interdict, order the payment of “just and equitable” compensation for any loss attributable to an unprotected strike.
In the Labour Law – A Comprehensive Guide , the learned authors say the following:
“The effect of section 68(1) is to create a sui generis cause of action. Unlike the position at common law, plaintiffs are not entitled to the full measure of their damages, subject to mitigation, but only to compensation that is ‘just and equitable’.”
When determining what “just and equitable” compensation is, the court must consider the following:
1. Whether and to what extent attempts were made to comply with the provisions of the LRA;
2. Whether the strike was premeditated;
3. Whether the strike was in response to unjustified conduct by another party to the dispute;
4. Whether there was compliance with the order restraining the strike;
5. The interests of orderly collective bargaining;
6. The duration of the strike; and
7. The financial position of the employer, the employees and the trade union.
There are only two reported judgments that deal with the issue of compensation, namely Rustenburg Platinum Mines Limited v Mouthpiece Worker’s Union (2002) 1 BLLR 84 (LC) and Mangaung Local Authority v SA Municipal Worker’s Union (2003) 2 All SA 573. In the latter case the court visited the trade union with liability on the following basis:
“I am of the view that where a trade union has a collective bargaining relationship with an employer, and its members embark on unprotected strike union and the trade union becomes aware of such unprotected strike and is requested to intervene but fails to do so without just cause, such trade union is liable in terms of S68(1)(b) of the Act to compensate the employer who suffers losses due to such an unprotected strike.”
In Manguang Local Authority v SA Municipal Worker’s Union (2003) 2 All SA 573, compensation of R25 000 was ordered when the Applicant claimed in excess of R270 000. Although some of the claim related to conduct during the strike, and was disallowed, the quantum was based on a robust approach, sending a message to union and its members that unprotected strikes would not be tolerated, and taking into account that the funds of other members of the trade union would probably be applied to pay the amount.
The following factors will support a high award of compensation:
1. If there was no attempt to comply with the provisions of Chapter 4 of the LRA;
2. If the strike was premeditated;
3. Where there was no unjustified conduct by the employer;
4. If an interdict was obtained and the employees did not comply with the terms thereof;
5. If the duration of the strike was relatively long;
6. If the union actively supported the strike.