The strike and disciplinary proceedings

During June and July 2018, employees of Shave and Gibson Packaging (Pty) Ltd (“Company”) embarked on a strike called by the African Meat Industry and Allied Trade Union (“AMITU”) in relation to increased wages and shift allowances, guaranteed bonuses and the removal of the Company’s HR Manager.  The strike was protected and during the course of the strike, all demands other than the wage increase demand were abandoned.

The strike was marred with violence, harassment and intimidation, which the Company contended was on the part of AMITU members.  For the most part, AMITU denied the involvement of any their members (“Striking Employees”) in any unlawful conduct.  Eventually, the Company obtained a Court order interdicting AMITU and the Striking Employees from engaging in any unlawful conduct.  The Court order also required AMITU and the Striking Employees to comply with certain picketing rules relating to the distance that they were meant to be from the Company’s premises, as well as relating to a prohibition against the brandishing of weapons during the picket action.

Despite the Court order, the strike violence, intimidation and harassment continued.  In response to this, the Company wrote to AMITU and declared the strike was no longer conducive to collective bargaining and alleged that it has lost its protected status due to its protracted duration and the persistent unlawful conduct that had accompanied the strike.  AMITU, however, maintained that the strike retained its protected status.

The Company had also called upon AMITU to identify the perpetrators of the unlawful conduct that occurred during the strike, failing which the Striking Employees would be charged with derivative misconduct.  On this issue, the Company had affixed a “whistleblower notice” on its fence, encouraging the Striking Employees to anonymously report any knowledge that they had of the perpetrators of the unlawful conduct.  AMITU was of the view that the Company had means available to identify the preparators of the unlawful conduct by means of, for example, the viewing of CCTV footage.

While AMITU had ultimately offered that the Striking Employees return to work, thereby calling off the strike, the Company advised it of its intention to take disciplinary action against the Striking Employees and as such, requested that they not return to work but instead present themselves at a disciplinary hearing that was to be convened.

The allegations of misconduct against the Striking Employees related to the following:

• charge 1: their participation in an unprotected strike;
• charge 2: derivative misconduct;
• charge 3: being in contempt of the Court order granted to the Company; and
• charge 4: the harassment and/or intimidation or assault specific individuals.

Pursuant to a disciplinary hearing being held in relation to the above allegations, the Striking Employees were dismissed from the Company’s employ.

The Labour Court’s findings

The first issue that the Court had to determine was whether all of the Striking Employees, as AMITU members, participated in the strike.  The Court noted that while lists of “identified” and “unidentified” employees were referred to by the Company during the trial had in fact referred to those of the Striking Employees who had been positively identified as having picketed and those who had not.  The Court further accepted the Company’s version that no AMITU members, including the Striking Employees, had reported for work for the duration of the strike.  In addition, ultimately AMITU and the Striking Employees conceded in their closing arguments that the latter had participated in the strike.  Consequently, the Court found that all of the Striking Employee were part of the strike called by AMITU.

The loss of “protection” during a strike

The Court then proceeded to deal with whether it is possible for a strike to lose its protected status and if so, in which circumstances this could arise.

In the first instance, the Court found that it was not possible for a strike to lose its protection merely because the demands made by a union and its members were “unreasonable”.  In particular, the Court held that the Company’s argument in that regard was devoid of any basis because it was not obliged, in law, to give into the demands made by AMITU.  The Court further reiterated that the reasonableness of demands made during a collective bargaining process is not justiciable, provided that the demand: (i) relates to a matter of mutual interest between and employer and employees; (ii) does not fall foul of sections 64(1)(a) (relating to the referral of a dispute to the a Bargaining Council or the CCMA) and/or section 65 (relating to limitation on the right to strike) of the LRA; and (iii) does not require an employer to act unlawfully.  In the circumstances, the Court held that the Company was not entitled to treat the strike as “unprotected” purely on the basis of its view that the wage demands made by AMITU were unreasonable.  The Court further held that to the extent that AMITU had continued to make any unlawful demands (e.g., the initial demand relating to the dismissal of the Company’s HR Manager), the Company ought to have sought an order prohibiting such demand/s.

In relation to whether it was possible to the duration of a strike to have an impact on its “protected” status, the Court found that there was no legal authority for the contention that an otherwise protected strike loses its protection merely due to it being of a “protracted” duration.

Moving onto the issue of the violence and intimidation that had taken place during the strike, the Court made the following findings:

• While no reliable evidence had been provided in relation to any violence and intimidation that had taken place on the picket line outside the main entrance to the Company’s premises, it had to be accepted that the strike was marred with violence and intimidation having regard to the following:

• some of the Striking Employees were found to have brandished dangerous weapons while picketing;
• rocks had been thrown at trucks belonging to the Company and one of its clients;
• trucks belonging to the Company had been petrol bombed and shot at with live ammunition while being driven;
• the home of a non-striking employee had been set alight while he was at work; and
• a social media post by one of the Striking Employees and WhatsApp messages sent from unidentified numbers had been used as a means to intimidate non-striking employees.

• Therefore, despite no evidence having been led directly linking any of the Striking Employees to the violence and intimidation (except for the brandishing of weapons during picketing and social media post), the probabilities were that these instances were linked to the strike by reason of the targets of the violence and intimidation, the timing of the instances and the signs of premeditation.
• There had been some debate over time, both in judgments by our Courts and through journal articles by academics and practitioners, regarding whether it was possible for a violent strike to lose its protected status.  However, it held that even where the strike was marred by violence and intimidation, it was not open for the Company to have declared, of its own accord, that the strike had lost its protection.  To do so, the Court held, would be to impermissibly discard of the constitutional right to strike of those Striking Employees who peacefully exercised their right.
• To the extent that the Company sought to have the protected strike declared “unprotected”, it ought to have approached the Court for such an order and a consequent interdict or order that the strike to be suspended, which it did not do.
• ·Finally, even if the Striking Employees were indeed involved in an unprotected strike, there were certain processes set out in the LRA in relation to dismissals of such a nature.  One of the steps in that process was for an employer to issue an ultimatum calling upon the striking employees to return to work.  The Company failed to comply with the relevant legislative processes in that regard.

As a result of all of the above, the Court found that there was no basis for the dismissal on the Striking Employees in relation to their alleged participation in an unprotected strike.

Dismissal for unlawful conduct during the strike

Insofar as the harassment, intimidation and assault of specific individuals was concerned, the Court found that other than two of the Striking Employees, there was no evidence that had directly or circumstantially linked any of the other Striking Employees to such conduct.  As such, the Court found that the dismissals of only the two Striking Employees who had been identified as engaging in objectionable conduct was justified.

Dismissal for derivative misconduct

The Court confirmed that the current position in our law in relation to derivative misconduct is that where an employer seeks to impose a duty on employees to disclose information about their fellow striking employees, an employer must prove, on a balance of probabilities, actual knowledge of the perpetrators of the wrongdoing on the part of the employees.  In addition, the reciprocal nature of the trust relationship between an employer and its employees then requires the employer to guarantee the safety of the “disclosing” employees.  In addition, the Court held that where an employer had the means to obtain the relevant information regarding wrongdoing on the part of striking employees, there would have been no ground to burden its employees with a duty to provide the information.

Ultimately, the Court found that on the facts before it, it was unlikely that the Striking Employees had actual knowledge of the perpetrators of the unlawful that had occurred during the strike.  This was in circumstances where some of the violence that had taken place (that is, the stoning, firebombing and shooting at the drivers of the trucks) happened at night and not during or near an active picket.  The Company was further unable to place any of the Striking Employees at the “scenes of the crimes”, nor were there any circumstances from which it could be inferred that they had knowledge of the perpetrators.  The position was same in relation to the arson attack on a non-striker’s house and the attacks on non-strikers and contract workers that had occurred.

In addition, the Court found that the Company was, in any event, in a position to ascertain certain information without the assistance of the Striking Employees.  For example, the Company could have identified the sender/s of the WhatsApp messages and it had identified a Striking Employee who had made threatening posts on social media posts, as well as having obtained a protection order against another Striking Employee for alleged threatened assault during the strike.  Furthermore, the Attorney had also informed AMITU that the Company was in the process of identifying the individuals involved in attack on the contract workers through photographs.

The Court also found that even if any of the Striking Employees had been in a position to identify the perpetrators of wrongdoing, a careful reading of the Whistleblower Notice issued by the Company did not disclose a guarantee of a whistleblower’s safety.  Therefore, the Court found that the Company had not discharged its reciprocal duty of good faith.

Finally, the Court confirmed that there was no requirement or duty in our law for the Striking Employees to have actively and positively dissociated themselves from the unlawful acts in question.  Nor was there any evidence led, whether direct or circumstantial, that the Striking Employees had in some form associated themselves with the violence before it commenced or even after it ended, thereby making them complicit in the relevant misconduct.

As a result of all of the above, the Court found that the Company had not been able to sustain the dismissal of the Striking Employees on the basis of derivative misconduct.

Dismissal as a result of contempt of Court and non-compliance with the Code

The Court noted that issues involved the contempt of Court and non-compliance with the Code concerned three aspects, namely where the Striking Employees picketed, whether they had hindered access and egress to the Company’s premises and whether they remained armed with weapons during the picket action after the Company had obtained a Court order prohibiting same.

The Court found that the order that had been granted in relation to where the Striking Employees could picket was contradictory in that could be seen to refer to varying distances that they could picket from the Company’s premises.  This was particularly in relation to the cross-references to the final picketing rules obtained by the Company and the contents of the Recognition Agreement between the Company and AMITU.  The Court found that, all things considered, those of the picketers had substantially complied with the relevant Court order in relation to the distance that they were required to be away from the Company’s premises.

The Court further found that there was no reliable evidence before it to support the claim that picketers had prevented employees and clients from entering the Company’s premises and that they had harassed and intimidated persons trying to enter the Company’s gate.  However, there was substantial evidence before the Court that demonstrated that several of the Striking Employees had continued to carry weapons during the picket action even after a Court order had been obtained prohibiting from doing so, as well as after a ruling by the CCMA that directed that the picketers must be unarmed (which was, in any event, in line with the provisions of the Code).  Therefore, the Court found that those of the Striking Employees who had carried weapons when they were prohibited from doing so had committed a dismissible offence.

The relief to be granted to the Striking Employees

In terms of the fairness of the Striking Employees’ dismissals, the Court found that while their dismissals were procedurally fair, other than those of the Striking Employees who had been identified committing misconduct and/or who could be directly linked to wrongdoing, the dismissals of the remaining Striking Employees were substantively unfair.

The question that remained was what relief the Striking Employees were entitled to as a result of their substantively unfair dismissals.  The Company contended that the circumstances surrounding the Striking Employees’ dismissals were such that a continued employment relationship would be intolerable given the violence and intimidation that plagued the strike, the fact that it in most of the instances did not know who the actual perpetrators were and the fact that none of the Striking Employees has disassociated themselves from the strike violence and inflammatory statements that AMITU had made about it.

While the Court acknowledged that the case put forward by the Company was compelling, it was constrained by the fact that for there was no direct or circumstantial evidence linking any of the Striking Employees to the violence and intimidation.  Furthermore, there was no duty on the Striking Employees to dissociate themselves from the violence and intimidation committed by other employees during a strike or even condemn it.  Consequently, the Court held that the remaining Striking Employees were entitled to the primary relief allowed by the LRA, being an order of reinstatement.  However, given the nine month delay occasioned by AMITU and the Striking Employees in the prosecution of their claim, the Court found that reinstatement to the date of dismissal would be inappropriate and limited the extent of the reinstatement order by the same period of the delay.



Concluding remarks

This judgment provides helpful guidance to employers on how to deal with certain issues that may arise during a strike, whether protected or unprotected and this includes, among other things, the following:

• Only the Labour Court would be in a position to declare a protected strike as “unprotected” and even so, such a declaration would likely one be made in exceptional circumstances due to the constitutionally enshrined right to strike.
• It is becoming increasingly difficult to take disciplinary action against employees for unlawful conduct during a strike in the absence of proper identification of employees who are involved such conduct.  As such, employers must use all reasonable means possible to identify specific perpetrators and take caution in attempting to discipline employees who have not been properly identified engaging in unlawful conduct.  Means of identification may include CCTV, eyewitness accounts, photographs and the like, in conjunction with keeping a detailed strike diary.
• In relation to alleged derivative misconduct, employers must take all reasonable steps to guarantee employees’ safety before requiring them to come forward with any information that they may have about the perpetrators of misconduct.  Even so, employers must not impose a duty on striking employees to come forward if they have other available means to identify the perpetrators of misconduct or where it is unreasonable to expect that the striking employees would have any information to share in relation to the perpetrators.  Allegations of derivative misconduct brought in such circumstances are unlikely to succeed as well.
• Employers must ensure that Court orders obtained in relation to unlawful conduct during a strike are clearly worded in the event that there is an intention to take disciplinary action against striking employees for non-compliance with any such orders.

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