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STRIKING MISCONDUCT

STRIKING MISCONDUCT. OVERVIEW OF THE RIGHT TO STRIKE Section 64 of the LRA (The right to strike and recourse to lockout) Section 67 of the LRA (Strike or lockout in compliance with the LRA)

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STRIKING MISCONDUCT

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  1. STRIKING MISCONDUCT OVERVIEW OF THE RIGHT TO STRIKE • Section 64 of the LRA (The right to strike and recourse to lockout) • Section 67 of the LRA (Strike or lockout in compliance with the LRA) • Section 68 of the LRA & Item 6 of the Code on Dismissals (Strike or lockout not in compliance with the LRA and Dismissals and Industrial Action) • The realities of a strike - power play • License for misconduct? • The bargaining situation - employee vis-à-vis negotiator • Borderline situations – value judgment required NUM v Black Mountain Mining (Pty) Ltd (2010) 3 BLLR 281 (LC) CEPPWAWU & Others v Metrofile (Pty) Ltd (2004) 2 BLLR 103 (LAC) Adcock Ingram Critical Care v CCMA and others (2001)22 ILJ 1799 (LAC)

  2. STRIKING MISCONDUCT SHOP STEWARDS • The position of the shop steward – Company employee or Union official? • The test to be used to determine how to treat conduct by shop stewards • Fairness to the employer NUM v Black Mountain Mining (Pty) Ltd (2010) 3 BLLR 281 (LC) Mondi Paper Co. Ltd v PPWAWU & Another (1994) 15 ILJ 778 (LAC)

  3. STRIKING MISCONDUCT WHEN TO INSTITUTE DISCIPLINARY ACTION • Unwarranted advantage in the process of power play • Employees’ election and consequences CEPPWAWU & Others v Metrofile (Pty) Ltd (2004) 2 BLLR 103 (LAC)

  4. STRIKING MISCONDUCT POSSIBLE SHORTCOMINGS IN DEALING WITH STRIKE MISCONDUCT • Absence of direct evidence • Parity • Sections 5 and 187 challenges • The strike strategy FAWU obo Kapesi & others v Premier Foods Ltd t/a Blue Ribbon Avril Elizabeth Home for the Mentally Handicapped v CCMA and others [2006] 9 BLLR 833 (LC)

  5. STRIKING MISCONDUCT INVESTIGATION AND PROSECUTION • Proper investigation • Disciplinary proceedings - Section 3 Law of Evidence Amendment Act 45 of 1998 - fairness is the overall test - Interest of justice not dependant on declarant’s testimony - Avril Elizabeth: investigation and opportunity to respond - Rule of thumb: relevant, reliable and logically probative?

  6. STRIKING MISCONDUCT • Operational requirements - Economic viability of the enterprise - Misconduct caused economic rationale for dismissals - Solution to avoid dismissals = disclose perpetrators - Test: Violence posed risk to management, life and/or sustainability of business FAWU obo Kapesi & Others v Premier Foods Ltd t/a Blue Ribbon Salt River 2010 (9) BLLR 903 (LC) V Tiger Food Brands t/a Albany Bakeries v Levy No & Others (Pty) Ltd (2007) 28 BLLR 1827 (LC)

  7. STRIKING MISCONDUCT THE RIGHT TO STRIKE AND THE CONSTITUTION • Jacqueline Garvis & Others v SATAWU [2010] JOL 26115 (WCC) • Section 17 of the Constitution protects only peaceful and unarmed assemblies and demonstrations • Armed and non-peaceful gatherings not protected by the Bill of Rights • Directorate Serious Economic Offences & Others v Hyundai Motor Distributors (Pty) Ltd and Others 2001 (1) SA 545 (CC) • Courts enjoined to read down legislation where possible • Preservation of meaning which places provisions within constitutional bounds

  8. STRIKING MISCONDUCT • Section 67(7) LRA • Undemocratic and poses risk to non-striking members • Interdict on the grounds of violence • Duty to bargain in good faith

  9. STRIKING MISCONDUCT • QUESTIONS?

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