Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting.
The way South African labour legislation is written makes it is extremely difficult to decide when the courts will judge an act by an employer to be unfair.
An excellent example of this difficulty is evidenced in the case of Modise and others vs Steve’s Spar Blackheath (2000 5 BLLR 496). In this case there was no doubt at all that the strike in question was an illegal one and was therefore unprotected from dismissal. The employer therefore, after giving the requisite ultimatum, dismissed the employees who had failed to heed the ultimatum to return to work.
Two of the three Labour Appeal Court judges found that the “audi alteram partem” rule applied in all cases of dismissal and consequently that even illegal strikers were entitled to a hearing before being dismissed. The fact that one of the three judges (Conradie) dissented with this finding illustrates the contentious nature of the Court’s decision.
The Court pointed out that Schedule 8 of the Labour Relations Act (LRA) requires employers to call in the trade union and discuss the unprotected strike. The Court believed that it is implied that, where there is no union, the discussion should take place between the employer and strikers. The court said that, even if, due to the strike circumstances, it was not practical to hold a formal hearing, the employer should find a way of giving the employees a chance to be heard.
As this had not happened the Court found the dismissal to be unfair and ordered the employer to reinstate the employees with six months back pay.
This is a case where the employer believed it had done all the right things and that it was on firm ground, only to have the rug pulled out from under it.
The result of these cases has been that many employers have been reluctant to dismiss strikers even if it is evident that the strike is unprotected. This has given employees and trade unions the upper hand.
However, companies cannot be properly managed by employers who are scared of the law and who therefore meekly accept unprocedural strikes. Employers who want to avoid being intimidated by the law and who want to stop being controlled by trade unions and striking workers need to revisit their strategies for dealing with industrial action. This includes:
- Understanding that the legal definition of strikes includes more subtle forms of industrial action including go slows
- Understanding how to prove that unprocedural strike action is occurring
- Ensuring that replacement labour is available in case of a strike
- Acquiring the specialist expertise necessary to know how to go about dismissing unprocedural strikers so that they stay dismissed.
Details:
(011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za. Website address: www.labourlawadvice.co.za.
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