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Johanette Rheeder
In this first part of our discussion on union misconduct we looked at the individual conduct of shop stewards in the workplace as part of their functions to represent the employees on the shop floor. In this second part of the discussion we will be looking at what protection unions and employees have in terms of labour legislation and its liability, if any, in the event of protected or unprotected strike action.
Protected strike action
Since the inception of the 1995 Labour Relations Act, (LRA) we do not have legal and illegal strikes any more. Therefore, strike action must comply with the stipulations of section 64 of the LRA, to be a protected strike. In terms of section 67(2) and (6), a person does not commit a defect or a breach of contract by taking part in a protected strike, protected lock-out or any conduct (which may not be an offence) in contemplation or in furtherance of a protected strike or lock-out, nor may an employer institute civil proceedings against such an employee.
An employee may also not be dismissed for taking part in a protected strike; however, an employer may dismiss an employee for misconduct committed during a protected strike or for operational requirements. A dismissal for participation in a protected strike is an automatic unfair dismissal. Therefore, employees participating in a protected strike are immune from civil and delictual liability and their conduct also does not constitute a breach of the employment contract. Similarly, unions are indemnified from civil liability for their conduct in contemplation of or furtherance of a protected strike in order to enable the union to carry out its legitimate functions.
However, this protection does not indemnify employees and the union from liability for unlawful acts committed during and arising out of a protected strike, for example, criminal offences. A union can be held liable for the acts of its members, if the employer can prove that there was a wrongful act committed by the employees (union members) and that the union was legally liable for its member's actions (vicarious liability). The wrongful act must constitute an offence and must have caused a loss to the employer. The employer will also have to prove that the union (or its shop stewards) authorized, instigated or ratified the commission of the wrongful act, before the union could be held liable.
Apart from the exception of certain payments in kind, the general rule of "no work, no pay" applies in the case of protected strikes.
Unprotected strike action
In terms of section 68, any strike action not complying with section 64 is unprotected, therefore, allowing the employer to interdict further participation or to discipline or dismiss the striking employees, after following a fair procedure. The labour court has exclusive jurisdiction to order just and equitable compensation for any loss attributable to the strike, lock-out or conduct, after having regard to certain factors. The purpose of this is not punitive but to compensate the employer for losses actually suffered. The employer will have to prove the extent of the loss.
In Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union [2002] 1 BLLR 84 (LC) the union was ordered to pay compensation to the employer for the employees' participation in an unprotected strike after union officials were video taped urging the employees not to return to work. Only after the union was threatened with disciplinary action did they urge their members to return to work.
Therefore, a trade union or its members, or both, can be held liable for losses occasioned by the unprotected strike. The employees can be held liable because they participated in the unprotected strike and the union can be held liable if it calls for an unprotected strike or fails to take steps to bring the strike to an end and losses are incurred as a result thereof.
In the event of a collective bargaining relationship between the union and the employer, this relationship presupposes a duty on the part of the union to ensure that its members comply with the provisions of the LRA. If the union or the shop stewards fail to intervene in an unprotected strike then the union can be held liable for the losses suffered.
In Manguang Local Municipality v SAMWU [2003] 3 BLLR 268 (LC) the Court held that where a trade union has a collective bargaining relationship with an employer and the union's members embark on unprotected strike action of which the union is aware of and fails to intervene without just cause, the union is liable in terms of s 68(1) (b) to compensate the employer for any losses incurred as a result. Similarly, if a trade union delegates its responsibility to resolve the strike to shop stewards employed by the employer and they fail to discharge this obligation, the trade union is liable to compensate the employer for losses incurred.
In order to avoid liability unions must take prompt and clear action to distance itself from and to repudiate unauthorised actions of shop stewards or its members. It must also take immediate steps to bring the strike to an end and communicate it clearly to its shop stewards and employee members[1].
In the next article we will be looking at the circumstances that might warrant a cost order against the union and the employee members.
For more information contact Johanette Rheeder on
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[1] With recognition to the Butterworths IRnet website and articles.
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