Protected strikes
Unprotected strikes
Comment


This year, national and regional strike action has seen a high incidence of violent conduct by strikers, causing damage to property and physical harm. This abuse of the legitimate right to strike has resulted in renewed calls for legislation to be changed in order to provide innocent employers, which are the victims of such behaviour, with proper legal protection and remedies. However, legislative change in this area is likely to be a long time coming – if it ever comes at all. So, what existing remedies are available to employers that suffer such conduct?

Protected strikes

Striking employees and unions engaged in a protected strike are immunised from civil claims for damages under Sections 67(2) to (6) of the Labour Relations Act, which provide (among other things) that a protected strike or conduct in furtherance thereof is not a delict (ie, a civil wrong) or a breach of contract. Thus, civil proceedings may not be instituted against participants because of their involvement in the strike.

This immunity does not apply, however, to conduct during a protected strike that constitutes an offence. Strikers who rampage through the employer's premises and damage equipment, warehoused goods, furniture or offices as they go along (an all-too-common occurrence in protected strikes nowadays), commit an offence and thus such conduct does not enjoy protection. In addition to seeking urgent orders from the Labour Court interdicting such behaviour and laying complaints of criminal conduct with the South African Police Service, employers can also seek to hold strikers civilly liable for losses suffered. The employer can institute civil claims against the culprits to recover contractual or delictual damages. The problem is that strikers will often be unable – due to a lack of means – to pay any meaningful contribution towards the usually substantial losses suffered. Obtaining civil judgments against offending strikers is therefore usually more of a symbolic exercise than one which is aimed at securing real recompense for the employer. Also, holding the union liable is often difficult as there may be no evidence that the union itself (through its officials) instigated, encouraged or participated in the unlawful behaviour.

Unprotected strikes

The position is the same in relation to such behaviour during an unprotected strike, save that an additional statutory remedy is available to employers under Section 68: employers can recover losses suffered as a consequence of an unprotected strike or conduct in the furtherance or contemplation thereof. This remedy provides for just and equitable statutory compensation for any loss attributable to the unprotected strike or conduct. Three key requirements must first be satisfied in order to make a claim under Section 68:

  • The strike in question must be unprotected;
  • The employer must establish that it has sustained a loss in consequence of the unprotected strike.
  • Where liability is sought to be attached to the union (as opposed to the individual strikers), it must be demonstrated that the union participated in the unprotected strike or committed acts in contemplation or in furtherance thereof.

It is possible that either the trade union or its members involved in the unprotected strike/conduct or both can be held liable for compensation awarded under Section 68. Employees can be liable because they participated in the unprotected strike and are, to that extent, the direct cause of the losses suffered by the employer. The trade union can be liable if it called for a strike that is unprotected and then leads to the employer suffering losses.

Assuming that the requirements can be met, Section 68(1)(b) also then obliges the court to consider various factors under Section 68(1)(b)(i) to (iv), all of which affect the question of whether compensation should be awarded. The factors that are taken into account are:

  • whether attempts were made to comply with the provisions of the act (in relation to the requirements for a protected strike) and the extent of those attempts;
  • whether the strike or conduct in furtherance thereof was premeditated;
  • whether the strike or conduct in furtherance thereof was in response to unjustified conduct by another party to the dispute;
  • whether there was compliance with any order of the Labour Court interdicting the strike;
  • the interests of orderly collective bargaining;
  • the duration of the strike or conduct in furtherance thereof; and
  • the financial position of the employer, trade union or employees respectively.

The Labour Court takes the above factors into account in deciding whether it would be just and equitable for compensation to be awarded and, if so, what the fair quantum should be. The court exercises discretion in this regard and does not simply apply a mechanical calculation of losses actually suffered. There are few reported cases of employers pursuing this statutory remedy – in all those cases, the quantum of the compensation that the court has awarded has been low relative to the losses suffered. In Mangaung Municipality v SAMWU,(1) the employer had sued for losses of approximately R270,000, but the court discounted part of those losses for technical reasons and ultimately awarded the employer an amount of only R25,000. In Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union,(2) the employer started out by seeking damages of approximately R15 million in respect of an unprotected strike. However, by the end of the trial and before judgment was given, the employer (for reasons that are not disclosed in the judgment) limited its claim to just R100,000. The court ultimately ordered that the sum should be paid by the union to the employer in instalments of R5,000 per month – the judge did say, however, that this "fell well within the upper limit of what [he] would have considered fair in all the circumstances". The only other reported case for which an award of compensation has been made is Algoa Bus Company v SATAWU.(3) The employer sought an award of R465,000, but was awarded only R100,000 – the court appears to have been influenced by the fact that the strike lasted only 16 hours and not two days, as the employer had claimed. The court also ordered that the R100,000 be repaid in instalments of R50 per month. Having regard to such reduced level of compensation awarded and the likely high cost of litigation, it is unsurprising that few employers have pursued relief under this remedy.

Given the prospect of a reduced quantum of compensation award under a Section 68 statutory claim, consideration could be given to pursuing a civil, delictual claim. In the ordinary course, a person who has been subjected to a delict by another has a claim under the common law against the wrongdoer for damages, which are calculated to be the amount required to place the innocent party in the position it would have been had the delict not been committed. The computation of damages in this regard would not suffer from the same problems of the consideration of the just and equitable factors as would arise in a Section 68 claim. Such a claim would usually be pursued in the common law courts (ie, the High Court). However, there appears to be no reported case of such a claim by an employer succeeding ever since Section 68(1)(b) has been applicable. Section 68(1) also reserves exclusive jurisdiction for the Labour Court to order payment for any loss incurred as a result of an unprotected strike or conduct in furtherance thereof; a defendant union may try to argue that this means that only a Section 68(1)(b) claim is possible, to the exclusion of a delictual claim in the common law courts.

Comment

Employers are left in an unsatisfactory position in relation to obtaining real recompense for losses suffered from unlawful conduct relating to a strike. Obtaining urgent interdictory relief to stop ongoing damage remains the best remedy to limit losses. However, in respect of losses already suffered, it seems that employers will have difficulty in recovering anything meaningful, unless the Labour Court takes a harder line with Section 68 compensation awards against the wrongdoers or delictual claims are pursued successfully, or there is legislative change.

For further information on this topic please contact Stuart Harrison at ENS- Edward Nathan Sonnenbergs by telephone (+27 21 410 2500), fax (+27 21 410 2555) or email (sharrison@problemsolved.co.za).

Endnotes

(1) 2003, JOL 10582 (LC).

(2) 2002, 1 BLLR 84 (LC).

(3) 2010, 2 BLLR 149 (LC).

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