Employees participating in an unprotected strike – Employers should communicate with their employees

Jun 29, 2010

Articles

In SACTWU & Others v Mediterranean Textiles Mills (Pty) Ltd
the applicant’s members (‘the employees’) claimed that they
had been unfairly dismissed on the basis of their participation in
an unprotected strike.

On 29 November 2007, the employer held a meeting with the
union during which the latter was informed that the employer
would not be paying any annual bonus for 2007, which was due
to be paid two weeks later. The employer also informed the
union that it would apply to the relevant bargaining council for
an exemption from its obligation to pay bonuses in terms of the
main agreement of the bargaining council.

After the meeting, on the same day, the employer placed a
notice on the company’s notice board confirming and advising
employees of the non-payment of bonuses and the fact that it
would apply for an exemption. On 4 December, just before
07h00, employees gathered at the company’s premises and
requested to speak to management.

The employer’s position was that there was no need to meet with employees as the
notice issued on 29 November was clear and needed no explanation. At 07h30 written
warnings were handed to the employees. At the same time the shop stewards were
handed a letter, which was also sent to the union, asking why a final ultimatum should
not be issued to the employees.

The shop stewards informed the employer that they were unable to persuade the
employees to return to work and the employees were requesting that management
speak to them directly. At 09h30 an ultimatum was handed to employees warning them
that if they did not return to work by 11h00 they would face dismissal. The ultimatum
was read aloud, but the employees refused to accept copies thereof. The employees
were dismissed at 11h15.

The court held that the determination of whether participation in an unprotected strike
constituted a fair reason for dismissal required a weighing up of all facts, with particular
regard to the cause, nature, objectives and extent of the strike; its timing and duration;
the conduct of the employees; and the consequences of the strike.

It was however trite that participation in an unprotected strike might constitute a fair
reason for dismissal. Item 6 of the Code of Good Practice: Dismissal provides that the
fairness of any dismissal pursuant to an unprotected strike has to be determined in light
of the facts of each case, including, whether or not the strike was in response to
unjustified conduct by the employer.

The court noted that it was important that an employer did not act in an overhasty
manner. It has to give a fair warning or ultimatum that it intends to dismiss employees,
so that the employees involved are offered a proper opportunity of obtaining advice and
taking a rational decision as to what course to follow. Both parties must have sufficient
time to cool off so that the effect of anger on their decisions was eliminated or limited.
On the evidence the court was convinced that the employer had known long before
November 2007 that it would face difficulties in paying employees their bonuses for
2007. It was reckless of the employer to have done nothing about the bonuses until
almost at the end of 2007, which was unfair to the employees.

The employer was, therefore, partly to blame for the strike. Merely referring the
employees to the notice on the notice board was irresponsible under the circumstances.
Had management attended a meeting as the employees had requested, the potential
was there that the strike could have been resolved. While the strike might have been
unlawful, its objectives were not. The employer had acted with unnecessary haste in
dismissing the employees. When weighing up all the factors the court was of the view
that the participation of the employees in the strike did not constitute a fair reason for
dismissal. In the result, the employer was ordered to re-instate the employees with no
loss of income and benefits, no order as to costs.

June 2010

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