Oct 3,2012 / News / Legal Brief

Despite the spate of illegal strikes and reports of strike-related violence sweeping South Africa, employers should not lose faith in the rule of law. There is ample evidence that the legal system continues to provide protection and that the authorities are willing and able to enforce the law, says Jacques van Wyk, employment law director at Werksmans Attorneys.

“Employers have understandably been rattled by the outbreak of wildcat strikes since the Marikana debacle and subsequent Lonmin wage settlement. Some commentators are even saying that the settlement created a precedent and could encourage other unions to take the route of violence,” he says.

“While I can’t speculate on that, I believe an unfair connection has been made between violence and the Lonmin settlement. What we mustn’t lose sight of is that negotiations were taking place throughout. It is in neither party’s interests to be on strike and so a settlement could have been reached at any time. I believe it is unfair and far too simplistic to say that the violent nature of the strike caused the employer to cave in.”

SA WORKPLACE IS NOT LAWLESS

Van Wyk says he disagrees with the perception that labour relations in South Africa may be degenerating into lawlessness.

“I do not think we are at the stage where lawlessness is the rule. For one, our Labour Court judges do not tolerate unlawful strike action – and there are no ‘ifs and buts’. If there is misbehaviour during a strike, the judges are unflinching in upholding the law and, when appropriate, dismissals.”

He says it is also evident that the police and government are willing to step in to stamp out strike-related violence and maintain the rule of law. “There is a clear willingness to enforce the law and there are countless examples of strikes being peacefully concluded through the reaching of agreements that are mutually beneficial.”

One issue of concern, however, is the inability of some trade unions to control their members. “We do need a greater degree of discipline among unions and it is not appropriate for them to deny liability for the behaviour of their members.”

NEW UNIONS CANNOT REWRITE THE LAW

Commenting on the emergence of new union formations that do not have employer recognition, van Wyk says these unions have two options under the Labour Relations Act.

“Either these unions can recruit sufficient numbers of members to qualify for recognition, or they can go on a lawful strike to force employers to recognise them for bargaining purposes. However, it is not appropriate for any union to want to rewrite the law.”

Touching on the topic of dismissing workers who embark on wildcat strikes, he says that while the Labour Relations Act does provide for such dismissals, these are not automatic.

DISMISSALS IN UNPROTECTED STRIKES

“The act is very clear that an unprotected strike is a form of misconduct and that employers can dismiss workers – provided that the employer has engaged the workers and given them the opportunity to reflect on their conduct and the circumstances of the misconduct indicate a total breakdown in the trust relationship between the employer and employees.”

Van Wyk says wildcat strikes often erupt in the heat of the moment, and so the courts require the employer to engage the employees or their representatives, usually by issuing ultimatums to go back to work or else. “The employer must try to persuade the employees to return to work,” he says.

“Furthermore, before dismissing employees who have gone on an unprotected strike, the employer must hold disciplinary hearings where they face charges of misconduct and have the opportunity to defend themselves.”

Before taking a decision, the employer would then take a whole range of factors into account, such as whether the employees were provoked, damage done to property, disruption caused to the business and the public, and so on.

“If the trust relationship has broken down irretrievably, the employer could well decide to dismiss the employees concerned,” van Wyk says. “However, it is important to remember there is no provision for automatic dismissals just because a strike is unprotected.”