As strike season approaches, a recent decision handed down by South Africa’s Constitutional Court shows why it’s important for employers to identify (as far as possible) specific employees who engage in violent or destructive strike action when looking to obtain an urgent interdict.
Commercial Stevedoring Agricultural and Allied Workers' Union and Others v Oak Valley Estates (Pty) Ltd and Another.
In 2019, Oak Valley Estates (Pty) Ltd was confronted with a protected strike by its employees who were members of the Commercial Stevedoring Agricultural and Allied Workers' Union (“CSAAWU”). During the strike, acts of violence and intimidation, as well as damage to property, were committed.
Oak Valley approached the Labour Court for an order prohibiting these acts. The respondents cited by Oak Valley were CSAAWU itself, 364 people listed in annexures A and B to the notice of motion (ie, CSAAWU’s members employed by Oak Valley); and other people described as the “unidentifiable respondents”. The unidentifiable respondents appear to have been members of the public who had, in some form or manner, supported the strikers.
The Labour Court granted interim relief against all the respondents.
By the time Oak Valley approached the Labour Court for final relief, many employees had returned to work, and the number of people listed in annexures A and B had been reduced. The Labour Court refused to grant final relief in respect of the unidentifiable respondents but granted final relief against CSAAWU and 174 of its members mentioned in annexures A and B. However, there was little evidence to show that the employees listed had committed acts of misconduct.
In the Labour Court, CSAAWU argued that Oak Valley had failed to link the unlawful conduct to the individual respondent employees listed in the annexures. There was no evidence to show that they had committed the actions complained of. The Labour Court rejected this argument and granted Oak Valley relief in respect of these employees.
On appeal, the Labour Appeal Court (“LAC”) upheld the decision of the Labour Court. It stated that it was “a bridge too far” to hold that an employer can only gain relief against those employees it can specifically name from a group that was involved in unlawful activity.
On appeal, the Constitutional Court refused to uphold the decision of the LAC. Its argument can be summarised as follows:
- To be granted a final interdict, the applicant must show that if the interdict is not granted, there is reasonable apprehension that it will suffer harm. If an employer is unable to establish a link between a respondent/s and the actual or threatened actions, there cannot be a reasonable apprehension of injury.
- A pertinent question is whether mere participation in a strike, during the course of which unlawful conduct takes place, suffices to show that there is such a link. If this is the case, it is inevitable that innocent participants in a strike will sometimes be caught in the net of an interdict. The Constitutional Court rejected the LAC’s argument that an innocent person would not be prejudiced by such an interdict because only those who have been identified as having deliberately failed to comply with the interdict could be held in contempt of court. The imputation that an innocent bystander is guilty of unlawful activity is a serious one and will cause prejudice to them. In addition, such an approach could have a “chilling effect” on the exercise of a person’s constitutional rights in that it may serve to deter lawful strike action.
- After a detailed analysis of court decisions dealing with the question, the court found that mere participation in a strike during the course of which unlawful conduct occurs does not constitute a sufficient link between an employee and the unlawful action.
- However, the Constitutional Court did state one important qualification to this approach: a link could be established where the strikers or protesters commit the unlawful conduct as a “cohesive group”. The court provided the following examples:
“[42] Where, for instance, unlawful conduct during protest action is ongoing, widespread, and manifest, individual protesters or strikers will usually have to disassociate themselves from the conduct, to escape the inference that it is reasonably apprehended that they will cause injury to the applicant. By contrast, where a protest or strike is substantially peaceful, but there are isolated and sporadic instances of unlawful conduct, only those protesters who associate with those acts of unlawfulness can permissibly be placed under interdict. In addition, where a strike is beset by unlawful conduct and large numbers of protesters or strikers deliberately conceal their identities – for instance, through the wearing of masks – a Court may be entitled to more readily conclude that an applicant has a reasonable apprehension that the participants in the strike will cause it injury.” - While the Constitutional Court accepted that strike-related misconduct constituted a blight on the South African industrial relations landscape, it also pointed out that the use of interdicts is susceptible to abuse by employers with ulterior motives and that granting relief against striking employees can undermine collective action. The court also argued that this does not mean that an employer must lead direct evidence to show a link. This can be inferred from circumstantial evidence provided by the employer. The court also commented that this “is not beyond the ingenuities of employers” given the modern technologies available to them.
- The court analysed the evidence provided by Oak Valley to establish whether the required link had been established in respect of the applicants. It found that only one individual respondent could be linked to unlawful conduct. Interestingly, the court found that a link between CSAAWU itself and the unlawful conduct had been established on the basis of the actions of its National Organising Secretary.
What does this mean for employers?
The Constitutional Court has now adopted a fairly strict approach to the citing of respondents, at least in the context of final interdicts seeking to prevent violence during a protected strike.
But this decision may persuade the Labour Court to take a stricter approach in the context of interim interdicts as well, especially in those cases where the court, (rightly or wrongly), suspects that the employer has no intention to seek final relief. It is also possible that a union upset by a particular decision would want to have its “day in court” and insist that the court should consider whether the order should be made final.
An employer should seek, as far as is possible, to identify the employees against whom it seeks an interdict prohibiting strike misconduct.
Some steps that employers steps can take which will serve them well, particularly upon the return day of an interim interdict and for any subsequent damages actions include:
- a contemporaneous strike diary;
- letters to the union calling upon it to stop unlawful action by identified individuals;
- reserving the right to take disciplinary action against identified individuals if and when they return to work; and
- photographic and video evidence.
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Read the original publication at ENSafrica.