Jun 6,2013 / News / Legal Brief

ISSUE IN DISPUTE

Whether an employer can dismiss employees who engage in unlawful strike action after issuing an ultimatum calling on employees to desist with their conduct or face dismissal.

COURT’S DECISION

In the case of TGWU & Others v Coin Security Group (Pty) Ltd
[2001] 4 BLLR 458 (LC) the court had to consider this question. In this case security guards embarked upon a lawful strike. Upon the strike being called off and the employees returning to work they were informed that the company would not be providing them transport as the vehicles normally used for that purpose had allegedly been tampered with. The employees would therefore be obliged to find their own way to their posts. In response the employees once again embarked on strike action by refusing to attend at their posts alleging a unilateral amendment to their terms and conditions of employment.

The employer issued an ultimatum to the employees indicating that the strike was illegal. They were notified that in the event that they failed to return to work they may be dismissed. After issuing a final ultimatum and upon the employees failing to return to work they were dismissed accordingly. During the course of the proceedings the employer initially met with shop stewards. They however refused to attend a further meeting requested by the trade union.

The court found that even in the event of the strike being unlawful the employer still had to comply with the requirements of the law for a fair dismissal. In finding the dismissal of the employees unfair the court made the following important conclusions:

  1. The employer is obliged to contact the employee’s trade union to discuss the course of action it intends taking notwithstanding past conduct of the union unless exceptional circumstances justify otherwise;
  2.  In addition, it is essential that employees be given the right to be heard prior to being dismissed; and
  3.  The unfairness of the dismissal was particularly evident as a number of striking employees had not even received the ultimatums. The ultimatum also failed to distinguish between striking and non-striking employees. Lastly, the strikers had a valid cause of complaint in embarking upon the strike.

IMPORTANCE

This case confirmed that, even in the face of an unlawful strike, the employer has to ensure procedural fairness.  In this regard, the employer is required to adequately engage with employees and their trade unions.  In addition, employees must be given an opportunity to make representations prior to any decision to dismiss them being made.

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