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Who has to prove that the employee did not participate in an unprotected strike?

 In Ubuntu News

Sephai v Barloworld Transport (Pty) Ltd (LC) (unreported case no JS411/16, 14-12-2021) (Mabaso AJ)

In terms of Labour Relations Act 66 of 1995 (LRA), a strike action must comply with substantive and procedural requirements.

The LRA makes a distinction between a protected and unprotected strike action. Certain rights are afforded to employees who participate in a protected strike.

In terms of s 67 of the LRA, the participating employees are protected in that

they may not be dismissed;
they may not face criminal charges or civil action; and
they may be paid in kind.

The LRA does not prohibit employers from taking other measures against employees participating in a protected strike. The employer may reward non-striking employees or seek replacement labour.

In most cases, strikes do not comply with the requirements set out in the LRA and, therefore, the employees participating in such strikes find themselves facing possible dismissals.

A strike is a collective conduct, which requires more than one employee.

It often happens that no employee wants to take accountability for the strike and they all deny participation.

The Sephai case has shown us that the onus is on the employees to prove that they did not participate in the unprotected strike.

Background of the facts

In Sephai, the employee failed to report for duty on the days where all drivers were involved in an unprotected strike.

The employer charged and dismissed the employee for participation in the unprotected strike.

The employee stated that he did not take part in the unprotected strike and indicated that his manager allowed him to be absent from work on the said days.

Therefore, he sought an order from the Labour Court (LC) declaring his dismissal to be both substantively and procedurally unfair and asked for maximum compensation.

Collective action

As indicated that a strike action is a collective conduct, a mass disciplinary inquiry preceded the dismissal, where approximately 82 drivers, including the employee, were found guilty by the chairperson.

All the employees were represented by the South African Transport and Allied Workers Union (SATAWU). An interpreter was utilised to interpret the proceedings from English to isiZulu and Setswana.

The employee indicated that he did not agree to be represented by SATAWU and further that he did not know what was happening in the inquiry because the proceedings were interpreted from English to isiZulu.

The LC found that the employer presented uncontested evidence that all the employees had a meeting and agreed to be presented by SATAWU.

It was also common cause that the employee did not raise the issue of representation during the disciplinary inquiry.

Under cross-examination, the employee changed his version and stated that the proceedings were interpreted from English to isiZulu and Setswana but alleged that the interpreter was poor in Setswana. The LC rejected the employee’s version.

Dismissal for participation

In terms of s 192(2) of the LRA, the employer is required to prove that the dismissal of a particular employee is fair.

The LC indicated that it was common cause that the employee did not tender services on the said dates and that the dismissal was as a result of such failure.

The employee’s representative argued that the employer had the onus to prove that the employee did not get authority to be absent from work.

The representative indicated the employer should have called the manager, who the employee allegedly reported to, to testify.

The LC indicated that there is a difference between the onus of proof and evidential burden.

The employee had the evidential burden to the issue of being absent from work on the said dates and the employer had the onus to prove that the dismissal was fair.

The LC stated that in a dispute where the dismissal relates to the failure of tendering services, it is the employee who must furnish reasons for the failure to tender services.

The employer indicated that it kept a strike diary where calls from employees who report challenges about coming to work were noted and the employee’s call to his manager would have also been noted.

Although, the LC did not deny that there might be a possibility that the employee called the manager, it found that the balance of probabilities favoured the employer.

It concurred with the employer’s representative that the employee had a valid defence, which he could have raised in the disciplinary inquiry and furthermore, he is the one who should have called his manager to come and testify.

It further indicated that in terms of r 6 of Rules for the conduct of proceedings in the Labour Court, an applicant must indicate the background of facts to be relied on in a statement of case.

The employee did not indicate in his statement of case that he was authorised not to report for duty and the only reasonably inference is that the defence is an afterthought.

Conclusion

The court provided the following principles

once the employee shows that they were dismissed, the employer bears the onus to prove that the dismissal is fair;
employees bear the evidential burden to prove their failure to render services; and
litigants are bound by what is set out in their pleadings.
The key lessons from this judgment are that
strike actions are collective conducts, and the employer can charge participants collectively, hold a mass disciplinary hearing if necessary; and
employees must not only communicate with their employer about their intentions to work during strike but also keep records of such communications.

In essence, explanations such as ‘I was not there’ or ‘I did not strike’ is not good enough for the damages or losses that the employer incur or suffer as a result of the unprotected strike.

As far as it is possible, employees should refrain from engaging in an unprotected strike action.

Pule Shaku

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