Strike case

In AFRICAN MEAT INDUSTRY AND ALLIED TRADE UNION (AMITU) AND OTHERS V SHAVE AND GIBSON PACKAGING (PTY) LTD (D 1050/2019) [2023] ZALCD 17 (17 OCTOBER 2023) the case revolved around the alleged unfair dismissal of members of the union AMITU. The Court was tasked with determining the fairness of the employer’s actions.

The dispute arose from a strike called by AMITU on June 18, 2018, in response to wage increase negotiations. While AMITU initially demanded a 10% increase, the employer offered between 4.5% and 8%. The strike resulted in a lockout, and the employer accused the striking workers of violence, intimidation, and misconduct. A Court order was subsequently issued, directing the strikers to picket 150 meters away from the premises and prohibiting violence and damage to property.

The employer filed several charges against the striking workers, including participating in unprotected industrial action, derivative misconduct, contempt of Court, and harassment.

Following a disciplinary hearing, the workers were found guilty and dismissed on 14 September 2018. The workers contested the charges, claiming that they had complied with the Court’s order by moving their picket to a sports field 700 meters away and were not involved in the alleged misconduct.

Key issues in the case included determining whether the strike had lost its protected status due to violence, whether the charges against the workers were justified, and if the dismissals were fair. The Court found that all employees had participated in the strike, but rejected the claim that the strike lost its protected status solely due to its duration or the nature of the demands.

The Court also examined whether the strike had been marred by violence and intimidation. While CCTV footage did not conclusively show violence, other evidence, such as the use of sjamboks and incidents of arson, supported claims of intimidation and violent acts.

The Court discussed the concept of derivative misconduct, which applies when employees fail to assist in identifying the perpetrators of primary misconduct. However, it ruled that the employer had not proven that the dismissed workers had actual knowledge of such misconduct, and thus the charges were not sustained.

Regarding the court order violation, the Court found that the workers did not fully comply with the instruction to maintain a 150-meter distance, but acknowledged that the order itself was contradictory, leading to confusion. Nevertheless, certain workers continued to carry weapons after the Court’s ruling, and their dismissals were deemed fair due to the potential danger posed during the strike.

In conclusion, the Court found that, apart from specific individuals, the dismissals were substantively unfair. It acknowledged the employer’s concerns about violence but pointed out the lack of direct evidence linking most employees to the misconduct.

As a result, the Court ordered the reinstatement of workers who had been unfairly dismissed and rejected the request for a costs award against the employer.