STRIKING MISCONDUCT
OVERVIEW OF THE RIGHT TO STRIKE
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Section 64 of the LRA (The right to strike and recourse to lockout)
Section 67 of the LRA (Strike or lockout in compliance with the LRA)
Section 68 of the LRA & Item 6 of the Code on Dismissals (Strike or lockout not in compliance
with the LRA and Dismissals and Industrial Action)
The realities of a strike - power play
License for misconduct?
The bargaining situation - employee vis-à-vis negotiator
Borderline situations – value judgment required
NUM v Black Mountain Mining (Pty) Ltd (2010) 3 BLLR 281 (LC)
CEPPWAWU & Others v Metrofile (Pty) Ltd (2004) 2 BLLR 103 (LAC)
Adcock Ingram Critical Care v CCMA and others (2001)22 ILJ 1799 (LAC)
STRIKING MISCONDUCT
SHOP STEWARDS
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The position of the shop steward – Company employee or Union official?
The test to be used to determine how to treat conduct by shop stewards
Fairness to the employer
NUM v Black Mountain Mining (Pty) Ltd (2010) 3 BLLR 281 (LC)
Mondi Paper Co. Ltd v PPWAWU & Another (1994) 15 ILJ 778 (LAC)
STRIKING MISCONDUCT
WHEN TO INSTITUTE DISCIPLINARY ACTION
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Unwarranted advantage in the process of power play
Employees’ election and consequences
CEPPWAWU & Others v Metrofile (Pty) Ltd (2004) 2 BLLR 103 (LAC)
STRIKING MISCONDUCT
POSSIBLE SHORTCOMINGS IN DEALING
WITH STRIKE MISCONDUCT
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Absence of direct evidence
Parity
Sections 5 and 187 challenges
The strike strategy
FAWU obo Kapesi & others v Premier Foods Ltd t/a Blue Ribbon
Avril Elizabeth Home for the Mentally Handicapped v CCMA and others [2006] 9 BLLR 833 (LC)
STRIKING MISCONDUCT
INVESTIGATION AND PROSECUTION
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Proper investigation
Disciplinary proceedings
Section 3 Law of Evidence Amendment Act 45 of 1998
fairness is the overall test
Interest of justice not dependant on declarant’s testimony
Avril Elizabeth: investigation and opportunity to respond
Rule of thumb: relevant, reliable and logically probative?
STRIKING MISCONDUCT
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Operational requirements
Economic viability of the enterprise
Misconduct caused economic rationale for dismissals
Solution to avoid dismissals = disclose perpetrators
Test: Violence posed risk to management, life and/or sustainability of business
FAWU obo Kapesi & Others v Premier Foods Ltd t/a Blue Ribbon Salt River 2010 (9) BLLR 903 (LC)
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Tiger Food Brands t/a Albany Bakeries v Levy No & Others (Pty) Ltd (2007) 28 BLLR 1827 (LC)
STRIKING MISCONDUCT
THE RIGHT TO STRIKE AND THE
CONSTITUTION
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Jacqueline Garvis & Others v SATAWU [2010] JOL 26115 (WCC)
- Section 17 of the Constitution protects only peaceful and unarmed assemblies and
demonstrations
- Armed and non-peaceful gatherings not protected by the Bill of Rights
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Directorate Serious Economic Offences & Others v Hyundai Motor Distributors (Pty) Ltd and
Others 2001 (1) SA 545 (CC)
- Courts enjoined to read down legislation where possible
- Preservation of meaning which places provisions within constitutional bounds
STRIKING MISCONDUCT
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Section 67(7) LRA
- Undemocratic and poses risk to non-striking members
- Interdict on the grounds of violence
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Duty to bargain in good faith
STRIKING MISCONDUCT
• QUESTIONS?