As the right to strike is enshrined in the Constitution of the Republic of South Africa (Act 108 of 1996), you cannot prevent your workers from going on strike. (Yes, non-unionised workers can also go on strike if a union who is recognised in that workplace has issued the 48-hour strike notice that the Labour Relations Act 66 of 1995 requires for a protected strike.) Unfortunately, over the past couple of years strikes have become increasingly violent in nature with non-striking workers’ lives being threatened and – in some cases – individuals losing their lives. The case of SAMWU & Others v eThekwini Municipality & Others LAC (2 September 2016) shows that you, as the employer, are not defenceless when it comes to striking workers.
Facts of the case
- Two shop stewards, employed by a trade union, refused to let contractors into the employers’ premises. These contractors had been commissioned by the employer to carry out essential repairs. So in their refusal to open the gates, the shop stewards disrupted the business of the employer.
- They locked the gate and refused to let anyone in until the employer had consented to listen to the demands of the striking employees.
- Even after the employer requested the shop stewards to open the gates, they still refused to do so.
- The shop stewards were dismissed for gross insubordination. (‘Gross insubordination’ must not be confused with ‘insubordination’ – the latter is not a dismissable conduct.)
- Insubordination entails people disobeying a lawful instruction in a lawful manner,
- While if an individual is guilty of gross insubordination, he or she is guilty of disobeying a lawful instruction in an unlawful manner.
- The trade unions contended that in locking the gate the shop stewards were acting in the scope of their employment. This means that they had every right to keep the gate locked.
- However, the Bargaining Council – as well as the Labour Court and Labour Appeal Courts – disagreed with this saying that the dismissals of the two union employees was substantively fair. The courts found in favour of the employers.
What can you, as the employer, learn from this case?
The Collective Agreement that was in place in the employer’s workplace specifically stated that the shop stewards were not to be treated any differently from the rest of the employees:
‘Except as otherwise provided for in this agreement, or any other agreement between the parties, the shop stewards will be subject to the same rules, regulations and other conditions of employment as other employees of the employer … One of these is that “an employee…should obey all lawful and reasonable instructions given by a person having authority to do so.”
Thus, in this case, the employer could dismiss the shop stewards who disobeyed them in a lawful manner. This is because the company’s collective agreement specifically forbade the shop stewards acting in a manner different from the rest of the employees.
So to make sure that you and your employees can keep a handle on any industrial action that may occur ensure that you have a collective agreement in place which outlines what each party may or may not do.
Do you need help with drafting your collective agreements? We, at Global Business Solutions, can help. Click here to learn more.