Disciplinary action for unlawful collective job action
AN employer has a right to charge employees for conduct arising out of participating in an unlawful job action. It will be up to the employees to raise the defence of participation in a lawful job action. For this defence to be successfully raised, the job action must be in accordance with the procedure laid out in Section 104 (3) of the Labour Act, Chapter 28:01 (The Act).
In order to be a lawful job action, a job action must follow the procedure laid out in Section 104 of the Act. In order for it to be a successful defence to a charge arising out of the conduct of an unlawful job action, that job action must be lawful in the sense that it has followed the laid down procedure.
The procedure for a collective job action is laid out in Section 104(2) of the Act, in terms of which no employees, workers committee, , trade union, employer, employers organisation or federation shall resort to collective job action before giving to the employer or appropriate council or trade union 14 days’ written notice of intent to resort to such action, specifying the grounds for the intended action.
This notice should be given after an attempt has been made to conciliate the dispute and a certificate of no settlement has been issued. All the requirements must be fulfilled before a collective job action can be regarded as lawful.
The courts have confirmed an employer’s right to charge an employee for conduct arising out of unlawful collective job actions.
The case of TelOne (Pty) Ltd v Communications
and Allied Services Workers Union SC 26/2006 is instructive. In circumstances where workers had gone on an unlawful job action and had been charged with absence from work, disobedience to a lawful order and disregarding standing procedures, the late Chidyausiku CJ, as he then was, said there was nothing in the Labour Act that prohibits or proscribes the use of a Code of Conduct by employers to discipline employees who would have participated in an unlawful collective job action or absented themselves from work by reason of participating in an unlawful collective job action.
Nothing bars an employer from disciplining, in terms of a Code of Conduct, employees engaged in an unlawful collective job action.
If a Code of Conduct does not provide that participating in an unlawful job action is an offence, then the employee may be charged for conduct arising out of the that unlawful job action. That conduct may amount to sabotage of the employer’s business, absence from work and refusal to obey a lawful order from a person in authority. Unlawful withdrawal of their services by the employees may constitute sabotage, if such an offence exists in the Code of Conduct. By their conduct, they interfere with the normal operations of the employer to the extent that those services are not available to the employer, to its loss, during the period of the unlawful strike.
Their conduct amounts to an interruption of services necessary to the operations of the employer which is dependent on those services for its functioning. They can properly be found guilty of the misconduct of sabotage and be dismissed from employment.
The employer may charge the employees for absenting themselves from work for a period in excess of prescribed number of days if such is prohibited in terms of a Code of Conduct. It is up to the employee to raise as, and prove, his or her defence that he or she was absent from work for that period due to participating in a lawful industrial action.
While participation in a lawful industrial action is a defence to such a charge, participation in an unlawful collective job action does not provide a defence.
If such are the facts that can be proved, an employee may be charged for refusal to obey a lawful order if he or she refused to perform their work on the pretext of an unlawful job action.
The consequences of a collective job action will depend on whether it was lawful or not. While there may be no repercussions following a lawful strike, it is different in respect of an unlawful strike.
In terms of Section 109 (6) of the Act, employees who participate in an unlawful collective job action: “shall be jointly and severally liable, at the suit of any injured party, for any injury to or death of a person, loss of or damage to property or other economic loss, including the perishing of goods caused by employees’ absence from work, caused by or arising out of or occurring during such collective action”.
If the participation in an unlawful job action has given rise to a conduct prohibited by the Code of Conduct, the employer simply has to bring the charge relating thereto even without first obtaining a show cause or disposal order.
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