COURTS CLEAR ON STRIKE PROTOCOL
What options are available if striking workers damage company property and intimidate others?
“A unionised grouping of my employees obtained a certificate to go on a protected strike. However, several of my non-striking employees have been intimidated and the striking workers have blockaded my work entrances and damaged my fences and trucks. I’ve asked the union to put a stop to this conduct by their members, but nothing has happened. I recognise the right of the employees to strike, but surely they can’t be allowed to cause such damage?” You are correct in that even though employees are on a protected strike, unions and their striking members are not allowed to intimidate, act violently or cause damage or take part in other unlawful conduct whilst striking.
To curb such conduct, employers can approach the labour court for an interdict to stop the unlawful conduct of the striking employees. When striking employees and their unions ignore such an interdict, the employer can file an application for contempt of court with the labour court against the trade union and the striking employees who fail to adhere to the terms of the interdict.
In a recent decision by the labour court, the court held both the trade union and individual striking employees in contempt of court for failing to adhere to the court order. The court had granted an interdict against the union and striking employees after the striking employees forcefully removed non-striking employees from the site and intimidated them and subcontractors from coming to work and blockading access to the employer’s worksite. Despite the interdict, the striking workers continued to intimidate nonstriking workers and subcontractors and prevent them from accessing the worksite. The employer then approached the court for an order of contempt of court against the union and striking workers.
In dealing with the contempt application, the court was satisfied that the order had been served on the trade union and individual striking employees and that they all knew the contents of the order and their expected compliance therewith, which they breached through their continued conduct.
The court found that it was not necessary for an employer to establish a link between each individual employee sought to be held in contempt of court and the unlawful conduct perpetrated. Neither was it necessary for the employer to identify every individual perpetrator, as all the striking employees could be held in contempt as they were acting in concert and with a common purpose.
The court also found that the trade union had failed to comply with its obligations in the interdict as it could have done a lot more to avert the violence and unlawful conduct of the striking employees.
The court imposed a fine of R1m against the trade union, suspended for three years, and each striking employee was ordered to pay a fine of R1,000, which the employer was entitled to deduct from their salaries. This verdict sends a strong message about the importance of adhering to orders of court and also that trade unions are responsible to take reasonable steps to stop their members from resorting to unlawful conduct, violence and intimidation during strike action.