Provided By Cowan-Harper-Madikizela By Neil Coetzer

It is well-known that strikes in South Africa are routinely marred by violence and intimidation. It often happens that due to the violence, or the threat of violence, employees stay at home during a strike, claiming that they are too afraid to attend work. Employers often exercise leniency in such circumstances, allowing employees to return when it is safe to do so. However, the dislocation which is often created by strikes can lead to an abuse of the employer’s leniency, as evidenced in the recent case of Association of Mineworkers and Construction Union and Another v The Metal and Engineering Bargaining Council and Others (JR729/16) [2018] ZALCJHB 420 (13 December 2018)

In this case, the Union, AMCU, referred an unfair labour practice dispute on behalf of one of its members to the Bargaining Council. The dispute alleged that the employer’s decision to issue the employee, Mr Mashologo, with a final written warning for participation in the unprotected strike was unfair. The Union also contended that it was unfair for the employer to require him to sign a so-called Peace Agreement following the resolution of the strike.

The dispute arose from an unprotected strike which unfolded on 25 March 2015 in support of, inter alia, bonuses and food allowances. Apparently, in response to the strike, the employer required the employees to not attend work from 28 March 2015 to 7 April 2015. Upon their return to work on 8 April 2015, the unprotected strike resumed and incidents of violence and intimidation were reported. In addition, the strikers blocked the route leading to the workplace.

The employer sent SMS messages to all employees on 9 April 2015, notifying them that the bus service transporting the employees would not be operational due to the blockading of the road and the continued violence and intimidation.

The employer then approached the Labour Court in order to obtain an urgent interdict on 17 April 2015. The Order was granted which had the effect of requiring employees to return to work. The employer then notified its employees, including Mr. Mashologo, of the Order and where a copy could be obtained.

The interdict, however, had little to no effect as none of the employees, including Mr Mashologo, returned to work. The employer then sent an ultimatum to all employees by way of SMS, requiring them to report for induction between 22 and 28 April 2015. Buses were arranged to collect the employees from their hostels. It is not clear from the Judgment how many employees returned to work, but it is evident that Mr Mashologo did not attend the induction.

While certain employees had reported for work during the strike, they were still required to sign a Peace Agreement at the conclusion of the strike. Disciplinary proceedings were instituted against those employees who refused to sign the Peace Agreement, including Mr Mashologo. Other employees who had participated in the unprotected strike and/or failed to comply with the Court Order were also disciplined by the employer. Mr Mashologo was also charged with these offences as he had not reported working during certain periods of the strike.

Mr Mashologo’s defence was that he had not participated in the strike and that he had been at home during the relevant period. He also contended that he was in any event not able to get to work because the employer had suspended the bus services due to the violence and intimidation. He was found guilty of all charges and was issued with a final written warning and he was required to sign the Peace Agreement.

The Bargaining Council arbitrator considered the evidence before him and found that the employer had not committed an unfair labour practice and dismissed Mr Mashologo’s claim. Dissatisfied, the Union and Mr Mashologo approached the Labour Court to review the arbitrator’s decision.

The Labour Court evaluated the facts before it and concluded, inter alia, as follows: –

  • While Mr Mashologo had been at work on 25, 27 and 28 March 2015, as well as 8 April 2015, he had not reported for duty from 9 April 2015 to 17 April 2015. It was apparent that he had made no attempt to arrange alternative transport, knowing that the other employees who wished to attend work had done so and were thus able to attend work;
  • Mr Mashologo confirmed that he did not attempt to return to work after he became aware that the bus services were suspended due to the violence and intimidation. His failure to attend work arose from a fear which was informed by what he was told by the employer regarding the violence and intimidation. As a result, he ignored the subsequent SMS messages sent to him about the interdict obtain and the ultimatum to return to work;
  • There were numerous contradictions in Mr Mashologo’s testimony, thus making it untrustworthy. For example, he blamed the employer for the suspension of the bus service, but at the same time indicated that the would in any event not have used the buses as he was afraid to wear his protective clothing. He also claimed that he did not know the venue where the buses would be stationed.

The Court reasoned that if Mr. Mashologo did not participate in the unprotected strike, and the only reason for not being at work was the lack of transport, he should’ve been the first employee to avail himself for work when the buses were made available for the induction. Mr Mashologo had accordingly taken no steps to dissociate himself from the strike. Importantly, the Court stated as follows:

“It will be an arduous burden to expect employers faced with an unprotected strike to deal with minute details of each employee who did not report for duty. It is incumbent upon an individual employee to dissociate him/herself from the striking employees and communicate that decision to the employer in no uncertain terms. In the present case, the arbitrator correctly found that Mr Mashologo failed to demonstrate an intention to return to work.”

The Court concluded that it was fair to expect Mr. Mashologo to sign the Peace Agreement because all the employees had to sign it, whether they had participated in the strike or not. With regards to the essence of the Peace Agreement, the Court found that there was nothing controversial about it. Mr. Mashologo had already been found guilty of participating in an unprotected strike. The Court accepted the fact that this agreement was a condition imposed by the client of the employer which sought to ensure commitment from the employees to comply with the terms of their employment contracts.

In conclusion, the Court stated that it was satisfied that the award of the arbitrator was reasonable. The judgment indicates an important shift in the thinking of the Labour Court, seeking to hold recalcitrant employees to account for their actions. A particularly positive aspect of the judgment is the Court’s endorsement of the notion that an employee who seeks to show that they were not part of a strike must take active steps to show their disassociation thereof and must at least attempt to attend work.