In South Africa, participating in an unprotected strike constitutes misconduct, warranting disciplinary action. However, item 6 of the Code of Good Practice: Dismissal makes it clear that this does not mean that dismissal will necessarily be justified. The Code lists several factors that may be considered in deciding whether dismissals will be fair. One of these factors is whether the strike was “provoked” by the employer's conduct. If this is the case, dismissals may be deemed unfair. But what constitutes “provocation”?
“Provocation” as a defence
In some cases, employees have argued that their employer provoked the strike by unilaterally changing their terms and conditions of employment. This possibility was accepted by Zondo J in the Constitutional Court decision in Transport and Allied Workers Union of South Africa obo Ngedle and others v Unitrans Fuel and Chemical (Pty) Ltd. Similarly, in Transport & General Workers Union & others v Coin Security Group (Pty) Ltd, the court accepted that the strike had been provoked by the employer when it withdrew the transport it provided to employees to enable them to get to and from work.
In Mlondo and Others v Electrowave (Pty) Ltd, the dismissed employees argued that the strike had been provoked by the employer's introduction of short-time work without consultation and the unilateral implementation of a job grading system in breach of a collective agreement. However, the Labour Court found that, on the facts, there had been no provocation in this case. It commented that sometimes employees hide behind provocation as a defence in their attempt to avoid the repercussions of infringing established procedures aimed at maintaining industrial peace. Although South African courts should consider an employer's behaviour that might condone employees embarking on an unprotected strike, the standards are strict. To succeed with this defence, the conduct of the employer must be egregious, and there must be some substantial justification proffered to excuse a failure to comply with the applicable procedures.
Provocation through non-payment
Similarly, the courts have also accepted that provocation can exist where the employer has failed to pay its employees their salary or some other form of benefit. For example, in the National Union of Metalworkers and Others v Pro Roof Cape (Pty) Ltd, the Labour Court found that the failure to pay employees an agreed bonus constituted provocation. It also found that the strike had not been calculated to maximise harm to the employer.
In contrast, in South African Clothing and Textile Workers Union and Others v Filtafelt (Pty) Ltd, the Labour Court rejected the argument that there had been provocation arising from the failure to pay a wage increase. The court also attempted to give some guidance as to what constitutes provocation. It made the following comments. Provocation requires at least some form of wrongful conduct, mala fides or a material breach of employment conditions. There must be some turpitude on the part of the employer. Furthermore, to succeed with the defence of provocation, the employees must prove that the employer took a stance that cannot be justified and behaved in a manner that was either unlawful, unacceptable or unreasonable. The employees' conduct must also have been in swift response to the employer's conduct.
Provocation through employer response and grievance handling
In some decisions, the Labour Court accepted that the employer had failed to respond adequately to grievances that the employees had raised and that this constituted provocation. For example, in Food and Allied Workers Union and others v Supreme Poultry (Pty) Ltd (Formerly known as Country Bird), the court found that the strike had been provoked by the employer's failure to adequately consider a grievance lodged against the conduct of its manager. In National Union of Metalworkers of SA and Others v Lectropower (Pty) Ltd, the court accepted that an employer's conduct in dismissing three shop stewards constituted provocation. The dismissals had been procedurally unfair and the reason for the dismissal had been that the employer regarded them as “troublemakers”.
When the provocation defence doesn't work
In NUM and Others v Power Construction (Pty) Ltd, the Labour Court rejected the argument that the strike could be excused on the grounds of provocation, stating that the employees' grievance could have been referred to the relevant bargaining council. A similar sentiment was expressed in National Union of Metalworkers of South Africa (NUMSA) and Others v CBI Electric African Cables where it was held that there had been less disruptive and non-belligerent means of resolving the grievance.
In decisions such as Filtafelt and National Union of Metalworkers of SA and Others v CBI Electric African Cables, it was accepted that it may be difficult for a union to persuade a court that a strike was provoked if it was not a spontaneous reaction to the employer's conduct but rather had been planned, especially if it was planned to take place at a time that would place maximum pressure on the employer.
Evaluating provocation
These decisions support the statement by Grogan in “Dismissal” (4th ed at 470) that an employer's conduct need not amount to provocation in the strict legal sense of the term. This seems correct; it must be interpreted and applied in an industrial relations context.
The decisions indicate that:
- The provocative conduct of the employer must be of such a nature that a reaction to instigate a strike is “excusable”. The decisions in Electrowave and Filtafelt indicate that this hurdle may be difficult to overcome.
- The strike must be a spontaneous reaction to the employer's provocative conduct. The strike should not have been a planned one.
- The employees must have had no immediate path to remedy the dispute available to them (for instance referring their dispute to the CCMA or the relevant bargaining council for adjudication); and
- Employers must give due regard to grievances raised by their employees.
Reviewed by Peter le Roux, an Executive Consultant in ENS' Employment practice.
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