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DETERMINING FAIRNESS IN STRIKE RELATED DISMISSALS 2010 CCMA COMMISSIONERS INDABA “Against all Odds” Ritz Hotel 2 – 4 December 2010.

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Presentation on theme: "DETERMINING FAIRNESS IN STRIKE RELATED DISMISSALS 2010 CCMA COMMISSIONERS INDABA “Against all Odds” Ritz Hotel 2 – 4 December 2010."— Presentation transcript:

1 DETERMINING FAIRNESS IN STRIKE RELATED DISMISSALS 2010 CCMA COMMISSIONERS INDABA “Against all Odds” Ritz Hotel 2 – 4 December 2010

2 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

3 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

4 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.

5 CAUSES OF MISCONDUCT DURING STRIKES (cont)  Outdated negotiation strategies from both the employer and the trade unions’ side.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.

6 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

7 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

8 HOW DOES THE LABOUR COURT DEAL WITH SOME OF THE ASPECTS RELATED TO MISCONDUCT ARISING OUT OF STRIKES (Cont)  The LC disagreed with this approach and held that the employer could have held the enquiries using written statements and hearsay evidence and not entitled to invoke s189  The question of whether it is appropriate to in certain circumstances to rely on s189 to dismiss employees allegedly involved in misconduct was left open. This principle can be criticized as it may be open to arbitrary retrenchment criteria by the employer as to who should be retrenched.  Not reinstated but compensated (12 months)

9 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.

10 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.

11 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”

12 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.

13 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

14 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”

15 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.”

16 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.”


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