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Ivan Israelstam
Winter is almost over but the ongoing series of strikes are leaving many employers shivering from economic chills. For employers the most painful of strikes are those implemented without warning, often called wildcat strikes. A wildcat strike, officially known as an unprocedural or unprotected strike, is one where the strikers have not complied with the requirements of the Labour Relations Act (LRA) before going on strike.
This removes the employer's opportunity to develop contingency plans for running the business during the strike. The question then arises as to what an employer is to do if it becomes the victim of a wildcat or unprocedural strike. Do they hire replacement labour (scab workers) and fire the strikers? The law allows employers to withhold payment of wages of strikers and bring in replacement labour, but many employers are not aware of this.
On the other hand the law is perilous when it comes to firing wildcat strikers. The LRA in combination with case law does allow employers to fire wildcat strikers. However, there are so many conditions and provisos attached to this right to fire that dismissed wildcat strikers have frequently been reinstated by the courts. The only procedural step required of employers by item 6 (2) of the Code of Good Practice: Dismissal, is to give an ultimatum before dismissing employees on a wildcat strike.
However, employers that have followed this procedure to the letter have nevertheless been severely punished by the courts for a variety of reasons. For example, in Modise and others v Steve's Spar Blackheath (2000, 5 BLLR 496) the Spar fired employees who had embarked on a wildcat strike. Before the dismissal the Spar issued an ultimatum giving the strikers a chance to halt the strike as a means of avoiding dismissal.
Despite this the Labour Appeal Court found the dismissals to be unfair because there had been no hearings. The court said that, irrespective of an ultimatum, no employee should be fired before he has had a chance to be heard in terms of the universal principle of audi alteram partem.
The court did not comment on:
- Why the Code of Good Practice requires an ultimatum but makes no mention of the requirement for a hearing in a strike context
- The fact that the requirement to hold hearings could cause the employer to lose a great deal of money due to the delay.
Instead the court reinstated the dismissed strikers. This finding was reinforced by the Labour Appeal Court in the case of Karras v Sastawu and others (2001, 1 BLLR 1). In Fawu & others v Earlybird Farm (2003, 1 BLLR 20) the labour court found the dismissal of wildcat strikers to be unfair because the employees believed that the strike was legal and because they had not been given a hearing.
The employer was ordered to reinstate the strikers and to pay each of them 12 months' wages. In Numsa and Others v Pro Roof Cape (Pty) Ltd (2005, 11 BLLR 1126) the employees who went on an unprotected strike received ultimatums and were given hearings but the court still ordered the employer to reinstate strikers.
This was because of selective re-employment, the employer's failure to honour an agreement, the peaceful nature of the strike and the short duration of the strike. In Nulaw and others v Bader Bop Ltd and others (2004, 8 BLLR 799) the dismissal of wildcat strikers was upheld.
This was because:
- The employer gave the trade union the opportunity to state reasons why the strikers should not be dismissed.
- The court found that this was as good as giving the employees a hearing.
However, the joy of employers was short-lived because in MM & G Engineering v Numsa & Others (2005, 9 BLLR 918) the wildcat strikers were dismissed at hearings after they complied with an ultimatum. The court found this to be unfair because the ultimatum did not include a statement reserving the employer's rights to dismiss strikers who complied with the ultimatum. In my personal experience the secret of dealing with strikes lies in the expertise in solving this very special type of crisis. This is the ability to balance urgent operational needs with labour law compliance.
Therefore, when confronted with a wildcat strike, in order to avoid the chilling judgments of our courts:
- Consult a reputable labour law expert who is up to date with case law and has hands-on experience with strikes, before taking any other action.
- Bring in replacement labour as soon as possible.
- Work with the police in controlling strikers who may try to attack replacement employees
Ivan Israelstam is chief executive of Labour Law Management Consulting. Contact him on 011-888-7944 or via e-mail:
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Our appreciation to Ivan and The Star newspaper for permission to publish this article.
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