Sticks and stones (and golf clubs) will get you fired

Striking employees often, and regrettably, have in their possession sticks and other objects which may be used as weapons while on the picket line. Unions routinely contend that these objects do not constitute ‘weapons’, and that the strikers have a ‘right’, rooted primarily in their cultural beliefs, to carry a stick. While we are, of course, products of our culture and environment, the submission ignores the fact that a workplace should be free from violence and intimidation.

There is no shortage of case law on the issue of weapons during a picket. In National Union of Metalworkers of SA on behalf of Mhlanga & others and Geneva Ad (Pty) Ltd (2012) 33 ILJ 1992 (BCA) employees were dismissed for engaging in intimidatory behaviour committed during the course of a strike. Some of the dismissed employees suggested during the arbitration hearing that ‘it was a cultural thing to carry a weapon during a strike’. The Commissioner rejected this suggestion and found that the evidence showed that the strike was anything but peaceful. The Commissioner found that the tenor of the strike made it ‘quite improbable’ that the dismissed employees’ were carrying their weapons as an expression of their cultural heritage, but had rather intended to use them to intimidate and threaten.

More recently, in Pailprint (Pty) Ltd v Lyster NO & others (2019) 40 ILJ 2047 (LAC), the Labour Appeal Court had an opportunity to determine whether the dismissals of employees who were in possession of sticks, PVC pipe, sjamboks and golf clubs during a picket were fair. In this matter the employer (“Pailprint”) had a policy that prohibited employees from ‘carrying or ‘wielding’ weapons during a strike. The employees were dismissed on this basis and referred a dispute concerning the fairness of their dismissals to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”).

At arbitration, the Commissioner found that the dismissed employees did not ‘brandish’ or ‘wield’ the weapons. On this contrived reasoning, the Commissioner found that dismissal was too harsh a sanction and reinstated the employees. Pailprint reviewed the award. Concerningly, the Labour Court found no reason to interfere with the Commissioner’s award and thus dismissed the review application with costs.

Pailprint then appealed the matter to the Labour Appeal Court (“the LAC”). The LAC found that Pailprint had a policy that created a rule, the employees had been aware of the rule and that the conduct of the dismissed employees was clearly in contravention of that rule. The Court went further and stated that the purpose of the rule was clear, namely to prevent violent attacks and intimidatory behaviour during a strike.

The LAC found that the Commissioner had approached the dispute in an overly technical manner. The Court stated that ‘wielding’ or ‘brandishing’ would include the carrying or displaying of weapons in a manner which is aimed at ‘sending out a message’. This, the Court remarked, is ‘at the very least threatening’. Importantly, the LAC found that the right to strike ‘does not encompass a right to carry dangerous weapons on a picket line which, by their nature, not only expose others to the very real risk of injury, but also serve to threaten and intimidate’.

The LAC found that the dismissals of the striking employees who carried weapons to be fair in that case.

The LAC was called on to determine a similar issue in Pailpac (Pty) Ltd v De Beer NO & others (2021) 42 ILJ 1038 (LAC). Once again the dispute involved the dismissal of employees who were in possession of sticks, PVC pipe, sjamboks and golf clubs. As in Pailprint, the employer’s policy prohibited the ‘brandishing’ or ‘wielding’ of weapons.

At the CCMA the Commissioner found the dismissals of the employees to be unfair as the employees were allegedly not aware of the rule prohibiting the carrying of such weapons. On review, the Labour Court agreed with the Commissioner’s reasoning. Pailpac then appealed to the LAC.

The LAC found that, considering the evidence presented, the employees were aware of the rule or reasonably could have been expected to be aware of the rule which prohibited the possession of weapons on the picket line. The LAC confirmed that the ‘visible carrying or wielding of prohibited weapons at the picket was clearly aimed at creating or fostering a hostile and intimidatory atmosphere’. The LAC thus found that the dismissals of the striking employees who had been in the possession of weapons during the strike were fair.

It should not be controversial that carrying a stick (or other object which could be used to threaten or intimidate) during a strike is not acceptable conduct at a picket. The LAC’s judgments in Pailprint and Pailpac put this issue beyond any doubt. The issue of whether the carrying of sticks constitutes an infringement on the cultural expression of a picketer has not yet been definitively dealt with by a Court, but we suggest that the issue of cultural expression could never trump the constitutionally entrenched rights to safety and security of the person, dignity and fair labour practices in the context of a strike.

The use of such objects during a strike can only be seen as a form of intimidation, which sends a very clear message to the employer about a failure to submit to the demands of the picketers. Far too often these threats materialise when employers refuse to accede to (sometimes irrational) demands, and far too often lives are lost or negatively impacted in the name of ‘collective bargaining’. To avoid this situation, employers are compelled through a form of ‘economic duress’ to agree to demands which are often not in their best interests (and, ironically, those of the picketers).

Such a situation is clearly untenable. Employers should deal with the issue of intimidation and violence on the same basis as other serious misconduct. The notion of peaceful and orderly collective bargaining is, in our view, undermined in circumstances where striking employees are in possession of weapons. The withdrawal of labour, and not any intimidatory and unlawful behaviour, should form the basis of the duress which striking employees’ impose on the employer.

Written by Courtney Wingfield and Neil Coetzer
of Cowan-Harper-Madikizela Attorneys

Courtney Wingfield of Cowan-Harper-Madikizela Attorneys
Neil Coetzer of Cowan-Harper-Madikizela Attorneys,