As an employer, you are entitled to institute policies – which do not infringe the rights of your employees – in your workplace to govern employee behaviour. However, when employees organise an action against your policy this could be considered a strike. The case of Tiger Brands Limited v African Meat Industry & Allied Trade Union (AMITU) and Others (D1267/19) [2019] ZALCD 12 (25 October 2019) shows a similar situation.

Facts of the case

The employer, in response to the obligations in compliance with the Occupational Health and Safety Act 85 of 1993, implemented its Drug and Alcohol Policy (“DAP”) which entailed that all persons entering the premises of the employer were to be subjected to an alcohol breathalyser test. The implementation of the DAP resulted in an increase in misconduct dismissals related to the abuse of alcohol.

The union and its members repeatedly expressed their disapproval of the use of the breathalyser as it was resulting in so many dismissals. At a union-management meeting held on the 16th September 2019 the union recorded that employees were proposing to ban overtime until the breathalyser test was removed or stopped.

On 25 September 2019 the union emailed correspondence signed by its General Secretary to the applicant worded as follows:

“RE: Notice of Stopping Overtime – Snacks Treats & Beverages”.

On the same day (25 September 2019) the employer replied to the union pointing out, inter alia, that if the respondents were to proceed with the threatened overtime ban the employer would immediately approach this court to interdict such conduct. The employer further urged the union to carefully consider the wisdom of its actions.

The employer approached the Labour Court on urgent basis to interdict the imminent overtime ban on the basis that it constituted an unprotected strike as the procedural steps set out in s 64 of the LRA had not been followed by the union.

The Court found that the strike would have been an unprotected one and it was interdicted.