Striking workers who sabotage employer property during strike action should face dismissal. This is according to Johan Botes, Director in the Employment Practice at Cliffe Dekker Hofmeyr.
Botes says that employers should ensure that they collect as much evidence of such misconduct when striking workers act unlawfully in pursuit of their demands. Where strikers are dismissed as result of having sabotaged their employer's business or operations, they can expect scant sympathy from the Commission for Conciliation, mediation and Arbitration ( CCMA) or the Labour Court.
“Recent strikes have been pock-marked with violence and sabotage (or threats thereof). In 2010, railway workers reportedly removed screws from railway sleepers that resulted in the derailment of a diesel tender. News reports contribute power outages experienced by Johannesburg residents last week to disgruntled striking workers sabotaging sub-stations or other facilities. The employer responded strongly by stating that it will take action against employees caught in such misconduct,” Botes notes.
“While the level of frustration amongst trade union members is palpable, sabotaging the employer's business is akin to a crewmember blasting a hole in the hull of the Titanic because he dislike the crew meals served. The employee will probably get his fingers burned, the meals are unlikely to improve, with the employer's attitude hardening as it sees its prize possessions or business going under,” he explains.
Botes says that employees should not labour under any misapprehension that acts of sabotage attract any protection under the guise of protected industrial action. Protected strike action includes employees downing tools, refusing to work overtime or otherwise work to rule (provided the requirements of the Labour Relations Act, No 66 of 1995 are met).
“However,” he says, “the LRA is unequivocal in its stance on unlawful conduct during strikes. Whilst employees may generally not be dismissed for participating in a protected strike, in terms of section 67(8) of the LRA, this protection does not extend to any conduct that constitutes an offence. Sabotage is an offence.”
“Employers seeking to restore order during strikes should ensure that they deploy resources to gather as much evidence as possible about misconduct committed during strikes. Such evidence could then be used during internal disciplinary hearings and even criminal proceedings against the wrongdoers. Employers should make use of this avenue open to them to recalibrate the industrial relations climate during and following violent strikes.
“Employees who do not wish to participate in strikes, but are otherwise intimidated into staying away from work or participating in strike action, are largely reliant on their employers to rid the organisation of those who intimidate, sabotage or assault. Employees often lack the resources or strength to stand up against those who act unlawfully in the workplace. If employers do not take action against striking workers who destroy property, sabotage operations or assault fellow workers, the message to the wrongdoers is as encouraging, as it is demotivating, to those willing to continue working in the face of adversity.”
Botes adds that the right to strike is a fundamental cornerstone of our democracy. We should never allowed it to degenerate into a right to violence, vigilantism or anarchy.