Kamini Padayachee
DURBAN: There is no protection in remaining silent while others commit violent acts during strikes, and snitching on your colleagues may be the best policy to keep your job.
This was the upshot of a recent ruling in the Durban Labour Court, which found that workers who were fired for failing to report their colleagues involved in the violence had been fairly dismissed.
The case, before Judge David Gush, involved an incident at Dunlop in Howick, when workers went on strike in August 2012.
The workers were represented by the National Union of Metalworkers (NUM) during the court case.
The company went to court to review an arbitrator’s decision that 65 workers had been unfairly dismissed
It found that the dismissals had been lawful as the trust relationship between the company and workers had broken down.
The protected strike, over a wage dispute, involved violent acts in which striking workers threw stones and sticks at vehicles entering and leaving the premises.
According to the judgment, the company had to call in private security to protect its premises, and video footage painted a picture of a “dangerous, volatile situation” during the strike.
An interdict to prevent the violence was obtained by the company, but the chaos continued. The company then made repeated calls for workers to report the perpetrators of the violence, but this was not done.
This led to the company dismissing 65 workers for derivative misconduct for failing to report those involved in the violence, and the matter went to arbitration.
The company had not identified the workers who had been present during the strike, and the workers relied on that to state that they had no obligation to report the perpetrators or exonerate themselves.
The judge said the workers were given an opportunity to identify the perpetrators or exonerate themselves before their dismissals and at the arbitration, but failed to do so.
At the arbitration, two workers testified that they had no knowledge of any violence, and NUM denied that any misconduct had occurred.
Judge Gush said it was not unreasonable to infer – based on the company’s evidence related to the strike and the denials of two workers who participated during the arbitration – that all striking workers were engaged in and participated in the strike, and had been present when the violence occurred.
“If they were not present or had no information regarding the perpetrators, they would have said so. They, despite the opportunities afforded them, did not.”
Judge Gush said while violence often occurred during strikes, this was no justification for it and the workers had a duty to report the perpetrators to the company, but had failed to do so.
“The essentials of trust and confidence demanded that they do more than simply remain silent.”
He also said that given the serious nature of the misconduct, the failure of an explanation by the workers justified the disciplinary action taken by the company.