Em­ploy­ers must have faith in law dur­ing strikes

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - JAC­QUES VAN WYK

DE­SPITE the spate of il­le­gal strikes and re­ports of strik­ere­lated vi­o­lence sweep­ing SA, em­ploy­ers should not lose faith in the rule of law. There is am­ple ev­i­dence that the le­gal sys­tem pro­vides pro­tec­tion and that the au­thor­i­ties are will­ing and able to en­force the law.

Em­ploy­ers have un­der­stand­ably been rat­tled by the out­break of wild­cat strikes since the Marikana tragedy and sub­se­quent Lon­min wage set­tle­ment. Some com­men­ta­tors are even say­ing that the set­tle­ment cre­ated a prece­dent and could en­cour­age other unions to take the route of vi­o­lence.

While I can­not spec­u­late on that, I be­lieve an un­fair con­nec­tion has been made be­tween vi­o­lence and the Lon­min set­tle­ment.

What we mustn’t lose sight of is that ne­go­ti­a­tions were tak­ing place throughout. It is in nei­ther party’s in­ter­ests to be on strike and so a set­tle­ment could have been reached at any time. I be­lieve it is un­fair and far too sim­plis­tic to say that the vi­o­lent na­ture of the strike caused the em­ployer to cave in.

I fur­ther­more dis­agree with the per­cep­tion that labour re­la­tions in SA may be de­gen­er­at­ing into law­less­ness. I do not think we are at the stage where law­less­ness is the rule. For one, our Labour Court judges do not tol­er­ate un­law­ful strike ac­tion — and there are no “ifs and buts”.

If there is mis­be­haviour dur­ing a strike, the judges are un­flinch­ing in up­hold­ing the law and, when ap­pro­pri­ate, dis­missals.

It is also ev­i­dent that the po­lice and the gov­ern­ment are will­ing to step in to stamp out strike-re­lated vi­o­lence and main­tain the rule of law. There is a clear will­ing­ness to en­force the law and there are count­less ex­am­ples of strikes be­ing peace­fully con­cluded through the reach­ing of agree­ments that are mu­tu­ally ben­e­fi­cial.

The in­abil­ity of some trade unions to con­trol their mem­bers does, how­ever, con­cern me. I be­lieve we do need a greater de­gree of dis­ci­pline among unions — it is not ap­pro­pri­ate for them to deny li­a­bil­ity for the be­hav­iour of their mem­bers.

When con­sid­er­ing the emer­gence of new union for­ma­tions that do not have em­ployer recog­ni­tion, these unions have two op­tions un­der the Labour Re­la­tions Act.

These unions can ei­ther re­cruit suf­fi­cient num­bers of mem­bers to qual­ify for recog­ni­tion, or they can go on a law­ful strike to force em­ploy­ers to recog­nise them for bar­gain­ing pur­poses. How­ever, it is not ap­pro­pri­ate for any union to want to re­write the law.

On the topic of dis­miss­ing work­ers who em­bark on wild­cat strikes, it is im­por­tant to note that while the Labour Re­la­tions Act does pro­vide for such dis­missals, these are not au­to­matic. The act is very clear that an un­pro­tected strike is a form of mis­con­duct and that em­ploy­ers can dis­miss work­ers — pro­vided that the em­ployer has en­gaged the work­ers and given them the op­por­tu­nity to re­flect on their con­duct and the cir­cum­stances of the mis­con­duct in­di­cate a to­tal break­down in the trust re­la­tion­ship be­tween em­ployer and em­ploy­ees.

Wild­cat strikes of­ten erupt in the heat of the mo­ment, and so the courts re­quire the em­ployer to en­gage the em­ploy­ees or their rep­re­sen­ta­tives, usu­ally by is­su­ing ul­ti­ma­tums to go back to work or face con­se­quences. The em­ployer must, at all times, try per­suade em­ploy­ees to re­turn to work.

Fur­ther­more, be­fore dis­miss­ing em­ploy­ees who have gone on an un­pro­tected strike, the em­ployer must hold dis­ci­plinary hear­ings where they face charges of mis­con­duct and have the op­por­tu­nity to de­fend them­selves.

Be­fore tak­ing such a de­ci­sion, the em­ployer would have to take a whole range of fac­tors into ac­count, such as whether the em­ploy­ees were pro­voked, dam­age done to prop­erty, dis­rup­tion caused to the busi­ness and the pub­lic, and so on.

If the trust re­la­tion­ship has bro­ken down ir­re­triev­ably, the em­ployer could well de­cide to dis­miss the em­ploy­ees con­cerned. How­ever, it is im­por­tant to re­mem­ber there is no pro­vi­sion for au­to­matic dis­missals just be­cause a strike is un­pro­tected.

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