When Parties are in Dispute About Whether a Strike is Over

In the recent case of AMCU & Others v Australian Laboratory Services (Pty) Ltd (JS315/12, 1November 2017) the Labour Court was called upon to consider whether the dismissal of some 90 employees for their participation in an unprotected strike was fair. The Union (“AMCU”), had sought organisational rights at the employer’s workplace during 2011. After AMCU referred a dispute to the CCMA, the Employer (“ALS”) agreed to commence negotiations with AMCU in respect of wages and other issues and sought to have this process concluded by early September 2011. This did not happen.

Written By of Cowan-Harper-Madikizela Attorneys

On 10 October 2011 AMCU referred a mutual interest dispute to the CCMA concerning negotiations over terms and conditions of employment. At the conciliation, ALS contended that the parties had not deadlocked and accordingly there was no ‘dispute’ to be conciliated. ALS asked the conciliating commissioner to issue a jurisdictional ruling on this issue. On 25 October 2011 the CCMA issued the certificate of outcome, but no jurisdictional ruling was issued along with it. On the same day AMCU issued its notice of intention to strike, while ALS responded with a letter advising AMCU that its strike was unprotected on the basis that no dispute existed.

The strike commenced on 28 October 2011. The strike was, regrettably, marred by acts of violence and intimidation. On 7 November 2011 ALS obtained an interim Order from the Labour Court halting the strike. On the same day, ALS made several attempts to serve a copy of the interim Order on the strikers and AMCU. The strikers nevertheless failed or refused to comply with the Order.

ALS then issued an ultimatum requiring the strikers to return to work by 07h00 the following day, 8 November 2011. When the strikers did not comply with the ultimatum, ALS issued a second ultimatum at 08h15, requiring the strikers to return to work by 09h00. Attached to this ultimatum was a copy of the interim Order. At this point AMCU’s President, who was present at the strike, advised the strikers to return to work in compliance with the interim Order of the Labour Court.

When the strikers attempted to enter the workplace at 08h50, ALS became sceptical of the strikers’ sudden change in approach, particularly in view of the violence and intimidation which had taken place, the inflammatory and threatening songs which had been sung and the fact that the strikers were wearing Union t-shirts. ALS accordingly required the employees who wished to return to work to sign an undertaking in which they agreed to, inter alia, refrain from violence, comply with all company policies and lawful instructions and to render service in accordance with the required performance standards. The undertaking was given to AMCU’s President, who indicated that the strikers would not sign anything. A flurry of correspondence was then exchanged between ALS and AMCU. ALS accused AMCU of refusing to comply with the interim Order and alleged that AMCU’s members were still on strike. AMCU denied this, reiterating that its members had complied with the interim Order at 08h50 on 8 November 2011 and that ALS had engaged in an unprotected lock-out by refusing to allow the strikers to resume work.

At about 10h15 on 8 November 2011 ALS issued a third ultimatum requiring the strikers to present themselves for work. In view of the undertaking which ALS required employees to sign, none of the strikers presented themselves for work and at 11h00 ALS posted a notice on the security booth advising strikers that they had been dismissed with immediate effect for failing to comply with the interim Order and the three ultimata issued by ALS. ALS did not offer AMCU an opportunity to make representations prior to dismissing the strikers.

The Court considered item 6 of the Code of Good Practice: Dismissal and commented that there are additional factors outside of item 6 which need to be considered in determining the fairness of a dismissal. In particular, it is also important for the Court to consider the parties’ conduct in the context in which it took place.

The Court found that ALS did all that it reasonably could to bring the interim Order and the first ultimatum to the attention of the strikers. It also accepted that ALS may have wanted some assurance from the strikers, in the form of an undertaking, in regard to their return to work. Unfortunately, the manner in which this unfolded was not ideal. Essentially, AMCU and ALS had agreed that the strike should come to an end, but were unable to agree on how the strikers should return to work. The Court was of the view that both parties could be blamed for failing to engage properly with each other, but that ALS should have paused to consider whether dismissal was the appropriate or only alternative in the circumstances.

The Court found that ALS took the decision to dismiss at a time when it knew that the strikers wished to return to work, but had refused to sign an undertaking. It is important to note that the undertaking was additional requirement which was not part of either the interim Order or the ultimata issued by ALS. At this point ALS should, at the very least, have given the strikers an opportunity to address the Company on why they refused to sign the undertaking before a decision on their dismissal was taken. The Court also lamented the lack of open and constructive dialogue between the parties.

The Court found that the dismissal of the employees was both substantively and procedurally unfair. In regard to an appropriate remedy, the Court found that reinstatement was not practicable due to the fact that ALS was a ‘hollowed out version’ of what it was at the time of the dismissals, with its workforce having shrunk by some 70%. In the circumstances the Court considered the conduct of the strikers, and particularly the violence and intimidation that was present, and awarded each employee eight months’ remuneration as compensation.

Strike law has become extremely technical and employers should not venture into that area without having taken legal advice well in advance. At the earliest sign of a strike, employers should consult with their legal representatives to prepare strike contingency plans and consider ways in which the strike can be avoided, since a strike should be a weapon of last resort. As part of that process, the employer must make a genuine, concerted effort to resolve disputes. Aggressive, inflexible or insensitive approaches to negotiations on matters of mutual interest often result in negativity, resentment and violence. A misstep in collective bargaining and strike management strategy could have severe financial and other repercussions for employers.

Neil Coetzer

Neil Coetzer
Head of Employment

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