LABOUR APPEAL COURT RULES THAT ILLEGAL STRIKES NOT ALWAYS GROUNDS FOR DISMISSAL

The Labour Appeal Court has delivered a precedent setting judgment, which rules that dismissal is not always justifiable in the case of unprotected (‘illegal) strikes.

In the case AHLESHA Blankets vs. SACTWU, the Labour Appeal Court ruled that the dismissed workers must be re-instated. SACTWU (Southern African Clothing & Textile Workers' Union) has welcomed the judgment.

A copy of the actual judgement is available on the SACTWU website (see here - PDF).

A summary of the case is set out below.

Issued by

Andre Kriel

SACTWU

General Secretary

Ahlesha Blankets vs. SACTWU: case summary

On 17 June 2008, 53 workers from Ahlesha Blankets in Atlantis in the Western Cape, were dismissed for participating in an unprotected strike. The workers went on strike because they were aggrieved about the fact that their company was forcing them to take two weeks' leave in June - as short time.

This meant that they would have only received one week's leave in December. For those workers with family connections in the Eastern Cape, as many of them have, this meant that they would forfeit their only chance to see their families that year.

Three shifts participated in the strike: morning, afternoon and night shift. Importantly, it lasted for eight hours. The notices of dismissal were issued on 17 and 18 June 2008.

This case initially went to the CCMA. However, on 5 August 2008, the CCMA found that it could not resolve the dispute and the case was referred to the Labour Court.

On 19 March 2010, the Labour Court found that while the actions of the workers constituted misconduct - a legally legitimate reason for dismissal - Ahlesha Blankets had acted with haste in dismissing the workers.

In terms of the dismissed day shift workers, the Court judged that since the company was experiencing slackness in its business, and since the strike was only eight hours long, and since the workers were open to negotiating a different short-time arrangement, the employer had alternative options to dismissal. This is despite the fact that the company followed due processes with regards to the dismissals.

The Court ruled that all the workers must be reinstated. However, since the workers' actions were illegal, the Court ruled that the workers should be penalized by being reinstated from a later date - 1 December 2009 - without loss of benefits from that date. 

This case was significant because it treats an unprotected strike, legally a black and white issue, as an event with some margin of flexibility.

Instead of simply dismissing workers for breaking the law, the Court has examined the context of the strike and found it to be more than simply an unlawful act but also an act of trying to negotiate with the employer in a context in which leeway might be possible.

That context - the slackness of orders which the company was experiencing - were found to justify alternatives to dismissal being sought.

On 12 April 2010, Ahlesha filed an application for leave to appeal the ruling.

The company challenged the original judgment on various grounds.

However, the gist of the company's attack was that the Court was wrong in its judgment to declare the dismissals unfair and to order re-instatement, because the employees' conduct was clearly a challenge to the management's authority, in that the workers had refused to comply with the ultimatums which management had issued, ordering them to return to work and to abandon the strike. The company argued that this amounted to gross insubordination.

The company also argued that there was commercial rational for it to implement the two week short time and that workers' conduct had undermined the management's authority to take business decisions. The company also argued that it was unfair for the court to interfere with this management discretion.

SACTWU argued that this was not the case. Our legal argument was that having regard to the short duration of the strike, the absence of violence during the strike, the slackness of business at the time and that the workers had a clean a disciplinary record. This, we argued, meant that the dismissals were unfair and that the lower court's decision to rule so was correct.

The Labour Appeal Court agreed with SACTWU, and dismissed the company's application.

The dismissal judgment was handed down in  the Labour Appeal Court on 2 March 2012.

Issued by SACTWU, April 17 2012

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