Employees strike for many reasons.
In the matter of De Heus (Pty) Ltd v South African Commercial and Catering Workers Union (SACCAWU) and Others the strike was precipitated by revelations that an employee in the administrative office displayed symptoms of Covid-19.
The employer instructed her to leave its offices, undergo testing, and arranged to have her office as well as the rest of the premises deep cleaned, in accordance with the normal Covid-19 protocols.
After confirming on WhatsApp that she was positive, some of the employees went on an unprotected strike despite the fact that the employer had assured them that all the necessary measures had been taken to mitigate the possibility of the spread of the virus.
The strike was accompanied by acts of violence and misconduct, including the lighting of fires next to the main entrance, and hindering and blocking the delivery of raw materials and the collection of the employer’s products at its premises. Threats were made that the diesel tanks and bunkers where the raw material was kept would be set alight; management received threatening text messages; and petrol bombs were thrown into the premises. Non-striking employees were prevented from reporting for work despite the fact that the investigation conducted by officials from Department of Employment and Labour found that the employer had complied with the health and safety protocols pertaining to Covid-19.
SACCAWU submitted that the employees’ conduct did not amount to a strike, and further that they had a right to refuse to undertake their duties if they had any reason to believe that they might be exposed to a risk of being infected by the virus. The union further denied that there was any form of violent conduct, claiming that “members of the South African police services were always present where the employees had gathered” [10].
Having considered all the facts, the Labour Court per Tlhotlhalemaje, J, held that when the employees finally returned to work they refused to comply with the safety protocols prior to entering the premises. Their refusal to comply meant that they could not enter the premises.
This, in turn, meant that the employees failed to report for duty. Consequently, the court held that “the Employees’ overall conduct fell within the confines of the definition of a strike as contemplated in section 213 of the Labour Relations Act (LRA)” [14].
While the court confirmed that the health and safety of employees in the “current climate of Covid-19 are paramount, and that the safety of employees at all workplaces should not be compromised”, it further held that this did “not entitle employees to embark on industrial action at a whim” [15].
The court rejected SACCAWU’s submissions that the conduct of its members did not constitute a strike when it asked the following question: “If their ‘gathering’ as they called it was peaceful, why then was there a need for members of the SAPS to be present throughout from 9 to 14 July 2020 …, and furthermore, what would have been the reason for the Applicant to source the services of a private security company (TSU Protection Services (Pty) Ltd) at a cost of R15 525.00 a day, unless there were threats to property and limb?” [17]
The Court therefore found that there was a strike, that it was an unprotected strike, and that it was such a violent strike that not only the SAPS had to be called, but that the employer was compelled to engage the services of a private security company at quite a financial cost.
The importance of this judgment is that the court has made the following clear: If it becomes necessary to call the SAPS to maintain law and order and/or to employ members of a private security company to protect the premises and to ensure the safety of non-striking employees, it is apparent that the strike is not peaceful.
