Employers can dismiss only those strikers against whom it has evidence of misconduct. This was confirmed in the recent case of CEPPWAWU v National Bargaining Council for the Chemical Industry and others, where the employer was alleged to have acted unfairly in selectively dismissing certain strikers for misconduct. During a lawful strike a number of union members were alleged to have intimidated those employees who refused to take part in the strike. The company charged only those employees who were identified on photographs. It acquitted certain employees who denied they were on the photographs and where there was no other evidence against them.

The commissioner who arbitrated the case for the bargaining council had found the employer was correct in only taking disciplinary action against those employees it could identify and acquitting those whose identities were unclear and not confirmed by the employee concerned. The Labour Court declined to review this decision and the case went on appeal to the LAC. The LAC confirmed that the commissioner's decision was reasonable. In so doing it reminded us of these important principles on the issue of selective treatment:

  • While it is correct that all employees who have committed misconduct must be treated similarly (unless there is some justification to treat them differently) an employer in cases of collective misconduct can only act against those employees it can prove have committed the misconduct complained of.
  • An employer cannot simply dismiss all of its striking employees because some have committed serious misconduct. It can only charge those against whom it has evidence.
  • If an employer only charges some of its employees because it only has evidence against them this is not selective discipline. It can only be accused of selective discipline if it has evidence against a number of employees but arbitrarily selects only a few to face disciplinary action.
  • An employer is not obliged to investigate each and every employee who may have participated in wrongful activity and then proceed to take disciplinary action against all. It need only take action against those it has evidence against.

The commissioner's decision was confirmed and the union was ordered to pay costs.