3 May 2021 by Employment Law Alert

Brandishing dangerous weapons during strike action and proving employees’ awareness of the rule prohibiting this conduct

In the recent case of Pailpac (Pty) Ltd v De Beer N.O and Others (DA 12/2018) [2021] ZALAC 3 (1 March 2021), the Labour Appeal Court (LAC) was tasked with assessing this scenario. In July 2014, NUMSA embarked on a national strike in the metal and engineering industry. The affected employees were dismissed for carrying dangerous weapons during the strike including sticks, PVC rods, sjamboks and golf clubs.

The employees challenged the fairness of their dismissals at the bargaining council. The arbitrator found that the employees were unfairly dismissed for a rule that they “did not know existed, or which was not effectively communicated to them”.

The employer took the award on review at the Labour Court (LC). The LC dismissed the review application, prompting the employer to take the matter on appeal at the LAC. The primary issue for the LAC’s determination was whether the employees knew or could reasonably have been expected to be aware of the rule (prohibiting the brandishing of dangerous weapons).

The employer’s argument had two legs in respect of what evidence it contended the arbitrator had unreasonably ignored. Firstly, the dismissed employees knew that the employer’s rules prohibited the carrying of sticks, sjamboks and golf clubs in a hostile fashion during a strike. Secondly, the material contradictions in the versions of the dismissed employees regarding their knowledge of the rules and the notice board where the rules were published.

In contrast, the dismissed employees contended that there was no evidence that they were aware of the rules. While the rules were displayed on the notice board at the main entrance of the employer’s factory, the employees disputed having read the rules. However, they conceded to reading other information previously placed on the very same notice board.

The LAC therefore found that it is “probable” that the employees were aware of the rule or could reasonably have been expected to be aware of the rule. Accordingly, the arbitrator’s finding was not one that could reasonably be reached.

The LAC also rejected the employees’ defence that they were prevented from approaching the wall where the rules could be read. Accordingly, if the dismissed employees were able to approach the wall, it is probable that they would have been able to read the rule that prohibited the brandishing of dangerous weapons. Importantly, the LAC reiterated that the test is not whether the employees had approached the wall to read the rules, but whether the dismissed employees were aware of the rule or could reasonably have been expected to be aware of the rule.

The LAC held that “the breach of the rule by the dismissed employees coupled with the ensuing harm to, and intimidation of, non-striking employees rendered their continued employment intolerable and made dismissal an appropriate sanction.” Accordingly, the dismissals were substantively fair.

This judgment provides clarity on the appropriate test to be applied when an employee’s knowledge of a rule is disputed, namely whether the employee was aware of the rule or could reasonably have been expected to be aware of the rule.

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