Employers should seriously consider taking legal advice before making a decision to dismiss employees partaking in an unprotected strike, which could lead to substantial financial consequences for the employer.
In a reported Labour Court judgment delivered on 20 February 2014, National Union of Metalworkers & Another v Lectropower (Pty) Ltd (case number JS119/13), the Court had to consider whether the dismissal of 17 employees that took part in an unprotected strike, was substantively fair.
The dispute between the parties arose after the employees provided the employer with a list of grievances, including that a manager be removed from his post. Thereafter the union declared a dispute. The employer set up a grievance hearing but failed to give advance notice of the meeting or its purpose to the union representatives. The three shop stewards that attended the grievance meeting demanded that the manager be removed, failing which the employees will embark on a strike. After the grievance meeting, the shop stewards were handed letters of dismissal. As a result of the dismissal of the three shop stewards, the employees refused to work or leave the premises for the rest of that day. The next morning the employer initially refused to allow the employees back onto the premises. Later an ultimatum was given to the employees to return to work by 12:00, failing which they will be automatically dismissed. At 13:45 the employees who had not returned to work, were handed dismissal letters. Two of the shop stewards threatened to burn down the vehicles of those employees who did not want to join the strike. Every day during the strike the dismissed employees gathered outside the premises where they played cards and drank beer. During the strike an employee was arrested, and later convicted, for malicious damage to property after he punctured the tyres of vehicles belonging to members of staff.
The Court stated unequivocally that reinstatement would not be an appropriate remedy in circumstances where employees engage in misconduct, this includes violence, during a strike, and the Court held as follows:
“Employees who misconduct themselves during a strike, protected or unprotected, ought not to expect this court to come to their assistance in any subsequent litigation, let alone order their reinstatement. Regrettably, intimidation, assault and damage to property have come to characterise strikes to the extent that they appear to be considered an inevitable consequence and an integral component of the exercise of the right to strike. This court should express its disapproval of any act of misconduct committed during the course of a strike and which impacts materially and negatively on the rights of the employer and those employees who elect not to participate in the strike…for the above reasons, I intend to make no order of reinstatement or compensation…”
The Court found that the employer’s conduct was the cause of the strike as it failed to engage in any meaningful endeavour to resolve the crises that it had brought about and its decision to dismiss was precipitate. The employees were reinstated, but not those who had misconducted themselves during the strike.