Violence during industrial action is a scourge that has blemished industrial relations in South Africa. The Constitution of South Africa and the Labour Relations Act are premised on the principle of peaceful demonstration where workers communicate their grievances to the employer through nonviolent means. Violence during strikes have reached endemic proportions. Violence during strikes are the norm rather than the exception.
Employers have become desperate to maintain the safety of their workers and property approaching the courts for remedy and protection. Due to the large scale of violent strikes it is difficult to identify the perpetrators. Disingenuous Trade unions often distance themselves from the illegal activities of their members claiming that unknown third parties cause violence during strikes. As improbable as this may be unions have escaped liability on numerous occasions.
The tide has turned on trade unions that monger violence and destruction. In a string of recent Labour Court decisions unions have been held to account for their members illegal actions. Upholding the rule of law, courts are now holding employees in contempt for not complying with its orders. This reflects a significant policy change in the way the judiciary views strike related violence. Holding trade unions and their members accountable for violence and destruction leaves employers with a sense of comfort.
If a trade union or its members do not comply with an order of court, typically to desist from violence and misconduct it will be held that they are in contempt of court and can face a fine, imprisonment or both. A recent case that consolidates the legal principles relating to contempt of court is KPMM Road and Earthworks (Pty) Ltd v Association of Mine Workers and Construction Union (J1520/2016). In this case due to the level of violence and intimidation the court found that the trade union and employees blatantly disregarded an order of court to desist from ‘clandestine acts’ of violence.
The legal development in this case is that a union cannot wash their hands of the disgraceful conduct of their members. Unions will be held liable if they cannot show that they took every single precaution that is reasonably expected of them when organising a strike. This is a victory for employers who have often sustained huge losses to human resources and property due to nefarious strikers.
In this particular case the court ordered that the union receive a suspended fine of R 1000 000.00 on condition that the trade union is not held in contempt of court for three years. In a bold step the court fined employees R 1000.00 each to be deducted from their salaries. The rule of law strikes back and hits workers and their unions where it hurts the most, in their pocket.
Article by: Shakti Jainarain
CEO Dispute Resolution Official – Durban