Employers Beware: Constitutional Court places greater responsibility on employers faced with striking employees
Every employer always hopes that when they are faced with a strike, it does not deteriorate and become violent, however, employers are not always that lucky and there are instances when unlawful conduct is committed during a strike. When such instances arise, the recourse available to employers could be an interdict against the striking employees. Previously, an employer could interdict employees from participating in a strike without linking each employee to the unlawful conduct committed. The position has now changed since the landmark Constitutional Court case of Commercial Stevedoring Agricultural and Allied Workers’ Union and others v Oak Valley Estates (Pty) Limited and another  JOL 52364 (CC).
The facts of this case that led to the Constitutional Court are briefly as follows: : the union had called a protected strike at the Oak Valley premises in response to Oak Valley’s alleged racially based allocation of employee housing and its refusal to recognise seasonal workers as permanent employees. The strike resulted in incidents of violence and breaches of Picketing Rules by the strikers which had been set by the CCMA. The Union and Oak Valley did not see eye to eye regarding the incidents of violence during the strike and this led to Oak Valley instituting an urgent application to interdict the union and each of the 364 “individual respondents” who had initially participated in the strike. Oak Valley also sought an interdict against “unidentifiable respondents” described as “people who associate themselves with the individual respondents in the criminal and unlawful conduct”.
The Labour Court granted the interim interdict against the Union, the individual identified respondents and unidentifiable respondents. When it came to a final interdict, Oak Valley only sought to interdict the union, unidentifiable Respondents and workers still on strike. The argument against Oak Valley was that it sought an interdict that was too broad and it had failed to link any unlawful conduct to the respondents cited. This argument was accepted by the Labour Court and the matter went on appeal. The Labour Appeal Court (“LAC”) agreed with the Labour Court in that Oak Valley was not required to link every individual interdicted to the unlawful conduct complained of. The LAC thus granted the final interdict because Oak Valley was able to name certain individuals who were involved in the unlawful conduct.
Finally, in the apex court the argument against Oak Valley was that the final interdict against those cited was not competently granted because Oak Valley did not establish a link between the individuals and the unlawful conduct. The Court considered the question of whether mere participation in a strike in which there is unlawful conduct, suffices to establish the link. The Court’s answer was ‘no’ – participation in a strike is “insufficient to link an impugned respondent to the unlawful conduct in the matter required for interdictory relief”, however, the link may be established where strikers commit unlawful conduct as a cohesive group.
What does this mean? Viewing the case from an employee’s perspective, this case affirms the right to strike, however, it should not be seen as a hall pass condoning unlawful conduct such as damage to property or intimidation.
This case is particularly important for employers seeking injunctive relief against actual or threatened unlawful conduct, a greater responsibility is now placed on them to identify striking individuals as opposed to relying on citing the individuals as a mass group. Employers may utilise means such as video footage and photographic evidence to bolster their case, but again, they need to ensure that such evidence identifies the individuals that the relief is sought against. The question is whether it is fair for employers to have to shoulder this responsibility – the Constitutional Court thinks so.
In light of the often fraught nature of strike action, it is going to be quite interesting to see how far the sympathy of our courts will extend when dealing with employers who are exposed to strike action that involves unlawful conduct.