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01 Dec 2020
BY Peter le Roux AND Themba Maduna

Does an employer have an obligation to contact a trade union official prior to dismissing unprotected strikers?

In the recent case of Roberts Brothers Construction v NUM obo Stimele and Others, the Labour Appeal Court dealt with an aspect of item 6(2) of the Code of Good Practice: Dismissal (the “Code”), namely the requirement to consult a trade union official that represents the striking employees prior to issuing an ultimatum.

Item 6(2) of the Code

Item 6(2) of the Code provides guidelines for the procedures to be followed prior to dismissing employees for participation in an unprotected strike. It requires that an employer, prior to dismissal and at the earliest opportunity, contact a trade union official to discuss the action it intends to adopt. If this interaction between the union and the employer fails to resolve the strike, the employer should then issue an ultimatum in clear and unambiguous terms. The ultimatum should state what is required of the employees and the sanction that will be imposed if the employees fail to comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and to respond to it by either accepting or rejecting it.

In this case, the employees of the two employers concerned were engaged in the construction of a bridge in the rural area of Lady Frere in the Eastern Cape. They were residing in huts on the site and embarked on an unprotected strike in protest against their living conditions. The intermittent and inadequate supply of electricity resulted in their not having heating, lighting and the means to prepare food. After failing to comply with an ultimatum, the employees were dismissed. They then challenged the fairness of their dismissal. 

The Labour Court

The Labour Court held that the dismissal of the strikers had been substantively fair. It found that, although the strike was in response to a legitimate demand, it had not been provoked by unreasonable management conduct. The employers concerned did not have the ability to provide the kind of electricity supply sought by the employees and were constrained by factors not entirely within their control. The strike was not in response to the employer’s implacability. The trade union, of which the employees concerned were members, had failed to engage the senior managers before the commencement of the strike, despite having had the opportunity to do so. The grievance procedures had not been invoked and the striking employees had not sought the union’s advice before embarking on the strike.

The court nevertheless found that the dismissals had been procedurally unfair because the employers concerned failed to contact the union officials as required by the Code, prior to issuing the ultimatum. The employers were given leave to appeal to the Labour Appeal Court.

The Labour Appeal Court decision

The Labour Appeal Court upheld the appeal. Its reasoning was that item 6(2) should be interpreted to give effect to the primary object of the Labour Relations Act, 1995 (“LRA”), namely to promote orderly collective bargaining. In furtherance of this objective, Chapter III of the LRA grants representative trade unions organisational rights such as access to the employer’s premises, stop-order facilities and the right to be provided with relevant information. These rights are only conferred upon unions that represent a majority of employees in a workplace or that are “sufficiently representative”. The trade union contemplated in item 6(2) of the Code is a union of this kind. The duty of an employer to contact a trade union in terms of item 6(2) of the Code is restricted to contacting a trade union that has been granted organisational rights under Chapter III of the LRA, or that enjoys contractual rights under a recognition agreement concluded with the employer.

The union in this matter was not sufficiently representative as it only had a handful of members amounting to some 7% of the workforce and did not enjoy any recognition or organisational rights envisaged in the LRA. Thus, there was no duty on the employers to contact the trade union in this regard.

Reviewed by Peter le Roux, an Executive Consultant in ENSafrica’s Employment department.

Themba Maduna

Employment | Candidate Attorney

tmaduna@ENSafrica.com

+27 67 415 8059