Pick your battle

In the recent case of Jacob Mele and 51 others v Chainpack Ltd (Pty) Ltd and 2 others (JS940/13) [2016] ZALCJHB 191 (5 April 2016), employees embarked on an unprotected strike after learning that their union concluded an agreement with the employer without first obtaining a mandate from its members.

The employer instructed the employees to return to work. The employees were handed final written warnings, giving them an ultimatum that they would be dismissed if they failed to comply with the employer’s instructions and that disciplinary inquiries would be instituted against all employees who participated in the unprotected strike. The employees failed to return to work and were subsequently dismissed.

The employees challenged their dismissal. The Court upheld their dismissal and took into account the fact that the employees complaint was against the union and not the employer.

Where employees are aggrieved by the conduct of their union officials and the employer has acted in good faith, the employees should raise their concerns directly with the union officials and not resort to unprotected strike action, as this may result in employees being exposed to disciplinary action, and even dismissal.

In recent judgments, it is evident that Courts will not come to the aid of parties who try to enforce their rights by holding the wrong party accountable. This is clear in the case of National Union of Food Beverage Wine Spirits and Allied Workers (NUFBWSAW) and others v Universal Product Network (Pty) Ltd [2016] 4 BLLR 408 (LC), where the employer sought to interdict its employees from striking after a political party intervened. The Court ruled that it could not find that the strike was no longer functional to collective bargaining because it had assumed a political hue.

Written by Aadil Patel and Stephanie Goncalves