While still in its formative stages, the Draft Code of Good Practice: Collective Bargaining, Industrial Action and Picketing (2017) is a direct response to the strike violence pandemic in South Africa and seeks to address the deficiencies in the Labour Relations Act 66 of 1995, as amended (“the LRA”). Whether a ‘Code of Good Practice’ (which is, essentially, nothing more than a guideline) will be a sufficient deterrent remains to be seen.

Employers are often at the receiving end of such violence, but the effect that it has on a continued employment relationship is often overlooked. Strike violence constitutes serious misconduct and usually renders continued employment intolerable. In many instances, such conduct constitutes criminal conduct and is particularly egregious in the context of the workplace, given the duty of subordination and good faith owed by the employee to the employer. To expect employers to simply allow employees who have engaged in wanton destruction of property, intimidation or violence to just resume their duties alongside other employees is often beyond the pale.

The resort to violence, and more particularly the desire of employers to stop or avoid it, also has the effect of placing undue pressure on the employer to reach wage settlements which do not necessarily accurately reflect the work-wage bargain. This in itself has drastic implications for smaller employers who often battle to contain costs and remain competitive.

The question then arises whether reinstatement would be an appropriate remedy in circumstances where employees are dismissed following their engagement in strike violence, regardless of the fairness of the dismissal?

The provisions of the LRA dealing with the remedy of reinstatement have been considered on several occasions by our Courts. The Labour Appeal Court has recognised that in assessing the appropriateness of an order of reinstatement, fairness towards both parties is a consideration, as is the practical workability of a resumption of the employment relationship.

In the recent judgment of KPMM Road and Earthworks (Pty) Ltd v Association of Mineworkers & Construction Union & others (2018), 39 ILJ 609 (LC) the Labour Court denounced strike violence and held that the manner in which employees conduct themselves during a strike directly affects the employment relationship. In this case, the Labour Court held that “..it would be hard for an employer to overcome the resentment towards employees where a part of its factory was burned down by striking employees”.

In National Union of Metalworkers and other v Lectropower (Pty) Ltd (2014), 35 ILJ 3205 (LC) the Labour Court stated unequivocally that reinstatement would not be an appropriate remedy in circumstances where employees engage in misconduct, including violence, during a strike. In particular, 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 cornerstone of the employment relationship is the trust relationship and the duty of good faith. It is obvious that where employees, either individually or in common purpose with other persons, participate in strike violence the duty of good faith is directly impacted. Such conduct effectively negates the employer’s Constitutional right to fair labour practices and destroys the relationship of trust between the parties.

Notwithstanding this, the area of strike law is fraught with difficulty and employers should seriously consider taking advice before making any decision to dismiss striking employees. A hasty decision could have substantial financial consequences for the employer, often many years after the actual decision to dismiss has been taken.