DETERMINING FAIRNESS
IN STRIKE RELATED
DISMISSALS
2010 CCMA COMMISSIONERS INDABA
“Against all Odds”
Ritz Hotel
2 – 4 December 2010
BACKGROUND

Section 23 (1) (c) of the Bill of Rights guarantees the right to strike and
Section 64 (1) of the LRA gives effect to this Constitutional provision.

Section 67 of the LRA dealing with strikes or lockout complying with
the provisions of the LRA states at Sec. (4) An employer may not
dismiss an employee for participating in a protected strike or for
conduct in furtherance of a protected strike

However Subsection 5 provides that an employer is NOT precluded
from dismissing an employee for reasons related to that employee
CONDUCT during the strike as well for a reason based on Operational
Requirements
CAUSES OF MISCONDUCT
DURING STRIKES

Violence is not a recent phenomenon in a strike action
 During the white miners strike in 1922, more than 600 workers
were killed.
 The Pick and Pay Strike in the 1980’s there was a significant loss
of lives though the outcome of the strike was a precedent setting
agreement in collective agreements in South Africa.

Neither is this a unique South African issue. During the Weimar
Republic thousands of workers were killed during strikes. Strike
violence was worse in certain instances as the state was likely to
employ its machinery to suppress the strikes
CAUSES OF MISCONDUCT
DURING STRIKES (cont)

Principles governing capitalist economy still apply: On the employer
side; maximize profit and on the employee side maximize benefit

Strikes take too long to resolve and this leads to frustration and
violence is a way of ensuring speedy resolution

The changed and changing nature of the workplace. Employers can
afford long strikes due to the employment of alternative labour, i.e.
army of reserved labour force, and technological changes to the
workplace, globalization where production can be shifted immediately
to another country and the employer does not feel the impact of the
strike.
CAUSES OF MISCONDUCT
DURING STRIKES (cont)

Outdated negotiation strategies from both the employer and the trade
unions’ side. Ideologues and bourgeois labour law/relations
intellectuals advising employers that horse-trading is the primary and
effective mode of negotiation and if you put your best position forward
then it means you are creating a perception that you have capacity to
more on the table.

Trade unions leaders not communicating reality but rhetoric to
members, evoking emotions and unable to control those emotions at a
later stage

Failure to strategise and plan for the strikes by the leaders of the
working classes, i.e.when is the strategic time to strike, analyzing the
balance of forces, for how long will the strike ensue and when and
how to beat a strategic retreats.
CAUSES OF MISCONDUCT
DURING STRIKES (cont)

Using wage negotiations to resolve other unresolved issues including
amongst other issues workplace issues as well as internal union
power struggles

Inter/ intra-union rivalry and scramble for membership and power
HOW DOES THE LABOUR COURT DEAL WITH
SOME OF THE ASPECTS RELATED TO
MISCONDUCT ARISING OUT OF STRIKES

FAWU obo Kapesi and 31 others vs Premier Foods Limited T/a
Blue Ribbon Salt River (2010)
 A protected strike by FAWU marred by violent conduct by the
striking workers.
 Threats of physical harm and death made to management and
non-striking workers. Money collected to kill one of the Regional
Directors
 Upon return to work, employees whom management believed to
have been involved in the violent acts and shopstewards, were
served with notices of suspension pending disciplinary hearings
 No witnesses willing to testify, employer abandoned the hearings
and evoked s189
 The suspended employees dismissed on account of operational
requirements
HOW DOES THE LABOUR COURT DEAL WITH
SOME OF THE ASPECTS RELATED TO
MISCONDUCT ARISING OUT OF STRIKES (Cont)

National union of Mineworkers and others and Black Mountain
Mining (Pty) Ltd (2010) 31 ILJ 387 (LC)
 Dismissal of a Shopsteward for alleged misconduct during a
protected strike
 Two shopstewards, one chairperson of the branch committee and
a full time shopsteward. Chairperson allegedly distributed
pamphlets during the strike and this was considered racist and
inflammatory. Also incited to have violence against management
by saying the union could not guarantee the safety of the
employers’ General Manager
 The alleged racist words include him saying is that “management
acted “soos diewe in die nag” and that management thought “swart
mense hooligans is and that management moet “ophou om vir
hulle soos kaffers te behandel.” He was also dismissed for
attending an SACP meeting during the strike while permission had
been denied.
HOW DOES THE LABOUR COURT DEAL WITH
SOME OF THE ASPECTS RELATED TO
MISCONDUCT ARISING OUT OF STRIKES (Cont)
The full time shopstewards is allegedly to have said that “my
mense raak kwaad en gaan brand”
The Labour Court upheld the dismissal of one and reinstated the
other
The court emphasized that while the functions of a shopsteward
have to be recognized, the Shopsteward still owe a duty of
respect to the organization and is subject to organizational
discipline.
POINTS ARBITRATORS NEED TO CONSIDER


Procedural Fairness
The employer is required as a matter of principle to hold a disciplinary
enquiry related to misconduct arising from strikes
Modise and others v Steve’s Spar Blackheath(2000) 9 LAC
If employer cannot be reasonably expected to take steps to
hold disciplinary enquiries (crisis zone situation) to stop
violence and bloodbath, the employer dispense with the
requirement to hold the disciplinary enquiry
In CEPPWAWU and others v Metrofile (2003) 12 LAC, the court
criticized the court a quo’ finding that dismissals for misconduct were
procedurally unfair as the enquiries were held during the course of the
strike. The court a quo had decided that the employer should have
waited until the end of the strike. The LAC disagreed with this and
held that “fairness demands an employer should not wait for a strike to
end to institute disciplinary action for strike related misconduct”
POINTS ARBITRATORS NEED TO CONSIDER
(Cont)




The admissibility of hearsay evidence hearsay evidence may be more
accepted in these situations as witnesses may feel intimidated to
come forward
The same applies to “in camera” evidence
Reason for dismissal
Dismissing employees based on section 189
 In the FAWU obo Kapesi and 31 others vs Premier Foods
Limited T/a Blue Ribbon Salt River the court seem to suggest
that this is a possibility that can be considered and left this open
The above matter also highlights the possibility that Shopstewards
may be vulnerable in these instances where the employer is
frustrated by the inability of identifying those responsible.
POINTS ARBITRATORS NEED TO CONSIDER
(Cont)


This case also highlights the role and how shopstewards need to carry
themselves during strikes. The following should always be borne in
mind.
 Shopstewards should not be victimized for performing
legitimate union activities
 Have an obligation to the employer to conduct themselves
in a responsible, orderly and respectful manner
 Conduct falling outside the realm of fair and acceptable
bargaining conduct and not reasonably related to the
functions of the shopsteward not protected
In the CEPPWAWU v Metrofile case, it was held that an employer
dismissing some employees for misconduct during a strike and issuing
final written warning to others constituted an unfair dismissal. This was
referred to the “parity principle” rule. This rule was enunciated in
NUMSA and others v Henred Fruehauf Trailers (Pty) Ltd (1994) 15
ILJ
POINTS ARBITRATORS NEED TO CONSIDER
(Cont)

In the LC matter of TAWUSA obo Tau & others v Barplats Mine Ltd
(Crocodile River Mine) (2009) 18 the court stated that “The
principle of “collective guilt” was examined as long ago as 1987 by
the then Industrial Court in
NUM & others v Durban Roodepoort Deep Ltd (1987) 8 ILJ 156
(IC) at 162H–I in which, in the judgment of the court, the following
was stated:
“The concept of ‘collective’ guilt is wholly repugnant to our law and
any policy in terms of which all members of any group . . . must bear
collective punishment for the wrongdoings of some of the members is
unacceptable to this Court because it runs counter to the tenets of
natural justice and is a violation of the well-known principle that a
person is presumed to be innocent until proved guilty. There is a
failure of justice even if a single person is presumed to be guilty and
made to suffer with the rest”
POINTS ARBITRATORS NEED TO CONSIDER
(Cont)
The court further stated that “that principle was endorsed in NSCAWU &
others v Coin Security Group (Pty) Ltd t/a Coin Security [1997] 1
BLLR 85 (IC). The court quoted:
“In casu the respondent was relying not on the doctrine of common
purpose but on collective guilt, which rested on the assumption that
where some wrong was perpetrated by an individual member of the
group, the entire group could be punished. This notion was wholly
foreign to our legal system and repugnant to the requirements of natural
justice. In casu, the whole workforce was dismissed for the acts of
misconduct of a few of them. It was possible that some of them did not
associate themselves with the acts of the perpetrators.”
POINTS ARBITRATORS NEED TO CONSIDER
(Cont)

However, in Chauke & others v Lee Service Centre CC t/a Leeson
Motors (1999) 8 LAC the found it appropriate to apply the concept of
collective misconduct in circumstances where the employer was faced
with a group of employees, and is not able to pinpoint an isolated
perpetrator of misconduct.The employer in the business of panel
beating and there was a significant damage to customer cars over a
period of four months and this was a response to the employer’s
dismissal of a shopsteward. The court stated that this approach
involves a derived justification, stemming from an employee's failure to
offer reasonable assistance in the detection of those actually
responsible for the misconduct. Though the dismissal is designed to
target the perpetrators of the original misconduct, the justification is
wide enough to encompass those innocent of it, but who through their
silence make themselves guilty of a derivative violation of trust and
confidence.”