Wake-up call for minority unions

On 18 May 2020, the Labour Appeal Court (LAC) overturned a decision by the Labour Court about procedurally unfairness. The LAC concluded that the employer was not obliged to contact a minority trade union before dismissing unprotected strikers. This obligation only exists if a trade union enjoys organisational rights and/or is sufficiently represented. [See: Roberts Brothers Construction and Mpumalanga Construction and National Union of Mine Workers and Others (LAC)].

Roberts Brothers Construction and Mpumalanga Construction employed a number of construction workers to work on a rural bridge in the Lady Frere District of the Eastern Cape.

The workers who lived in huts on site, went on an unprotected strike because their respective employers were not able to provide a better electrical supply for heating, lighting and cooking needs.

The respective companies dismissed the striking workers without informing their trade union, the National Union of Mine Workers (“NUM”).

The Labour Court found that the dismissals were substantively fair but procedurally unfair “to the extent that the respondents did not take the necessary and sensible step of contacting the union to try and end the strike other than issuing the ultimatums and pleading with the strikers”.

The court awarded the employees compensation in the amount equivalent to six months remuneration.

The companies appealed.

The only substantive issue on appeal before the Labour Appeal Court (“LAC”) was the finding “that Item 6(2) of the Code required the appellants to contact the union prior to issuing ultimata or dismissing the employees, to allow the union to intervene at an early stage, and that this requirement is an element of the employees’ rights to procedural fairness” (paragraph [13]).

The LAC accordingly grappled with the question as to whether an employer is obliged in terms of item 6 (2) of the Code of Good Practice: Dismissal (Schedule 8 of the Labour Relations Act) “to contact a trade union official of any trade union regardless of its representative status at the workplace” (paragraph [16]).

The LAC concluded that the Code is merely a guideline and that the primary object of the LRA is to promote orderly collective bargaining, which means that it favours majoritarianism.

In this instance NUM “had only a handful of members, making up about 7% of the workforce, and did not enjoy recognition or organisational rights granted in terms of Chapter III of the LRA” (paragraph [16]). NUM therefore neither enjoyed any organisational rights under Chapter III of the LRA, nor was it a party to a recognition agreement with the employers.

The LAC consequently overturned the Labour Court’s decision and held instead that “there was no duty on the appellants to contact the union in terms of Item 6(2) of the Code before issuing the ultimata or dismissing the employees. It follows that the dismissal was not procedurally unfair” (paragraph [19]).