employment ENSight | 21 November 2018

Be careful (and clear) what you wish for

by Naailah Abader

When faced with acts of violence and other forms of misconduct committed during the course of a strike, employers often approach the Labour Court for an order requiring striking employees not to commit these acts and requiring the union concerned to take certain steps to persuade or require its members not to continue with the acts of misconduct. If, notwithstanding the court order, the misconduct continues, the employer may seek to hold the employees and the union in contempt of the court order. If this application is successful, the employees and the union involved will be regarded as committing the criminal offence of being in contempt of a court order. 

In its recent decision in AMCU V KPMM Road and Earthworks, the Labour Appeal Court (the “LAC”) considered two issues of importance within the context of contempt proceedings. The first is the utilisation of the doctrine of common purpose when an employer seeks to hold employees in contempt of court. The second is how to proceed where relief is sought against a trade union, which we address in this article. 

In this case, certain of KPMM’s employees embarked on a protected strike on 15 July 2016. On same day, the individual appellants (members of the Association of Miners and Construction Union (“AMCU”)) engaged in various unlawful acts. AMCU thereafter provided KPMM with an undertaking that it would take reasonable steps to ensure that, during the course of the strike, its members would conduct themselves in a peaceful manner and would refrain from any acts of violence and/or intimidation and misconduct. Notwithstanding this undertaking, KPMM alleged that further incidents of unlawful action took place and launched an urgent application in the Labour Court for relief. The Labour Court granted an order interdicting AMCU members from committing these acts and directing AMCU “to take all reasonable steps within its power to persuade the second to further respondents not to engage in unlawful action associated with the strike…” This order appears to have been based on the relief sought by KPMM in its notice of motion to the urgent application. 

KPMM formed the view that, notwithstanding the court order, the unlawful conduct and intimidation continued. It then launched a second application in the Labour Court in which it sought an order holding certain employees and AMCU to be in contempt of court for not complying with the previous court order.

As far as the contempt of court application against AMCU itself was concerned, AMCU argued that it had complied with the court order in that it did what could reasonably be expected of it. It had signed a memorandum of understanding with five of KPMM’s subcontractors confirming that no acts of intimidation or violence had been committed by AMCU’s members against employees of these subcontractors. Further, AMCU’s regional organiser had communicated the court order to AMCU’s members and meetings had been held on a daily basis where employees were informed of the status of the strike and the need to comply with the court order. 

The Labour Court found AMCU to be in contempt of the court order on the basis that all AMCU did was “to convey the order to its members, tell them to comply, and then washed its hands of what may happen thereafter” and it found that “In short, the attitude of the first respondent was that of what was taking place was the applicant’s problem.” The court stated that AMCU had been required to take a more active approach to ensure compliance with the court order by its members. This included the continuous marshalling of strikers and the presence of union officials “on the ground” in order to deal with violations of the court order. 

AMCU was granted leave to appeal against this order. The LAC pointed out that, in a contempt of court application, the applicant is required to prove that: the court order has been served on the respondent; the order has not been complied with; and that this non-compliance was wilful and mala fide. Once this has been established, the evidentiary burden shifts to the respondent to establish a reasonable doubt as to whether non-compliance was wilful and mala fide. The LAC reiterated that the criminal standard of proof, ie, proof beyond a reasonable doubt, applied. 

The Labour Appeal Court stated that the relief sought against AMCU to take “all reasonable steps within its power to persuade” was capable of more than one interpretation. It was on this basis that the LAC found that the relief sought by KPMM in these circumstances was too vague. It held that to contend on the basis of such an “open-textured” order that KPMM had proved beyond a reasonable doubt that AMCU was wilful and mala fide in its non-compliance with the court order, could not be upheld in these circumstances. 

The LAC stated, however, that its finding should not be interpreted as “giving succour to any form of conduct by union members or other employees which constitutes violence, intimidation or other unlawful behaviour pursuant to a strike”. But, if an employer wishes to obtain relief against a union, such as that sought in this case, it behoved its legal advisers to draft a notice of motion which gave clear content to the obligations the employer wished to impose upon the trade union through a court order. 

The LAC also indicated that a notice of motion seeking orders along the lines of the way in which the Labour Court drafted its order could have been crafted into an order that imposed obligations on a union which are clear to all concerned and which enabled a court to engage in a dialogue with the parties in order to craft a clear order. However this was not done in this case. 

The appeal was accordingly upheld with costs. 

Lesson to be learnt for employers 

When drafting applications for urgent relief in the context of strike action, the focus is often primarily on the drafting of an affidavit that sets out the facts on which to base the application. This judgment illustrates the importance of clearly stating the relief in some detail sought by an employer. The order must set out in clear terms what is expected of a union and its officials in the context of a strike. While the relief sought may be granted in an urgent application for the purpose of interdicting a strike or conduct in relation thereto, it may be of little benefit to an employer in subsequent contempt of court proceedings where the burden of proof is on the employer to prove, beyond a reasonable doubt, that a union has acted in breach of a court order. 

Reviewed by Peter le Roux, an executive in ENSafrica’s employment department. 

No information provided herein may in any way be construed as legal advice from ENSafrica and/or any of its personnel. Professional advice must be sought from ENSafrica before any action is taken based on the information provided herein, and consent must be obtained from ENSafrica before the information provided herein is reproduced in any way. ENSafrica disclaims any responsibility for positions taken without due consultation and/or information reproduced without due consent, and no person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against ENSafrica and/or any of its personnel. Any values, such as currency (and their indicators), and/or dates provided herein are indicative and for information purposes only, and ENSafrica does not warrant the correctness, completeness or accuracy of the information provided herein in any way.



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