Can a protected strike lose its protected status, and, if so, in what circumstances? This question was considered by the Labour Court in the recent case of African Meat Industry and Allied Trade Union & Others v Shave and Gibson Packaging.

Facts of the case

In June 2018, members of the African Meat Industry and Allied Trade Union ("AMITU") embarked on a protected strike in support of a demand for a wage increase. In response, the employer embarked on a lock-out. During the strike and lock-out, serious of acts of violence and damage to property took place. The employer sought, and was granted, an interdict prohibiting these actions; however, the court order did not lead to the cessation of the unlawful actions. Over a month later, AMITU informed the employer that the strikers wished to return to work. The employer refused to permit them to return to work and instituted disciplinary proceedings against the strikers.

The disciplinary hearing charges were essentially as follows:

  • Participation in an unprotected strike;
  • Derivative misconduct for not providing details of who precisely was involved in the violence and hence not acting in the best interests of the employer;
  • Being in contempt of a court order, alternatively, breaching the picketing rules; and
  • Harassing and/or intimidating employees or contractors of the employer.

The employer dismissed all but four of the employees who were reinstated after providing written submissions as to why they should not be found guilty.

Findings of the court

The employees challenged the fairness of their dismissal in the Labour Court. In considering this question, the court had to consider several issues. For the purposes of this article, we will only deal with one, that being whether the strikers could be dismissed for participating in the strike. At the strike's inception, it was "protected" because it complied with the provisions of the Labour Relations Act, 1995. In such circumstances, the dismissal of employees for participation in the strike would be automatically unfair. The employer argued, however, that the strike had lost its protected status and that the strikers could be fairly dismissed.

Briefly put, the employer argued that the strike had lost its protected status because:

  • the strikers made unreasonable demands;
  • the strike was marred with high levels of violence and intimidation; and
  • the strike was protracted.

The argument that the strike had lost its protected status because of its protracted nature was dismissed in one sentence - the court found that there is no legal authority which holds that an otherwise protected strike loses its protection after a protracted duration.

The employer's argument that the strike was unprotected because the wage demands were unreasonable was also rejected as the court found that this argument did not have any basis in law. The court reiterated the principles that a demand is lawful as long as the demand relates to matters of mutual interest between the employer and employee, if it does not fall foul of sections 64(1)(a) and 65 of the LRA and finally, that it does not require the employer to act unlawfully.

The Court then dealt at some length with the argument that the strike had been rendered unprotected because it had been marred by violence and intimidation. The judge referred to various decisions of the Labour Court which contained statements which indicated that the courts may, in very exceptional cases, be willing to declare a strike unprotected if it was accompanied by serious acts of violence.

The judge also referred to academic and other publications where the argument was made that once violence replaces the refusal to work as a the focal point of the strike, then it no longer meets the definition of a "strike". If the actions of the employees no longer constitute a strike as defined, the protections granted by the LRA no longer apply.

Whilst the judge stated that these views were "compelling", she nevertheless refused to accept them. In coming to this decision, she relied on the decision of the Labour Appeal Court in NEHAWU v Minister for the Public Service and Administration and Others and the Constitutional Court decision in Commercial Stevedoring Agricultural and Allied Workers' Union and others v Oak Valley Estates (Pty) Ltd and another to conclude that "rendering the strike unprotected would impermissibly denude the constitutional right to strike of those striking employees who exercised their right peacefully".

Commentary

Interestingly, in coming to the conclusion it did, the Court did not refer to the decision of the Constitutional Court in Association of Mineworkers and Construction Union and Others v Anglo Gold Ashanti Limited t/a Anglo Gold Ashanti and Others. In this decision, which dealt with the substantive requirements for lawful secondary strikes in terms of section 66(2) of the LRA, the judge stated the following:

"...The "partial or complete concerted refusal to work, or the retardation or obstruction of work," implies that, by definition, all strikes must be peaceful exercises of power to resolve disputes. This is reinforced by section 17 of the Constitution which guarantees that "[e]veryone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions". Once strikes cease to be peaceful, they lose the protection of the law...."

This striking statement, although made in the context of secondary strikes, indicates that, in appropriate circumstances, the Constitutional Court could take an approach different to that adopted in the AMITU decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.