The hard-fought right to strike is enshrined in section 23 of the constitution. The right to withhold labour is seen as integral to our collective bargaining process. As the adage goes “collective bargaining without the right to strike is nothing but collective begging”.
But where does that leave employees who do not associate themselves with the goals or objects of organised labour? In this dark era where the word “strike” is often preceded with “violent”, those workers may be forgiven for thinking that they are left to fend for themselves. What, after all, can one or two non-striking employees do when a group of armed thugs threaten them for not participating in the strike?
Without derogating the right of any individual to report unlawful activity to the police, in the situation described above, perhaps employers should play a more active role in seeking to protect their workers who do not participate.
Employers, after all, are in a better financial position to take legal action against culprits, to lobby the government to adopt a tougher stance against such unlawful conduct, or – importantly – to dismiss those employees who commit unlawful acts like intimidation, assault, causing damage to property or even sabotage.
When trying to identify and expose the wrongdoers responsible, employers should consider the role played by their own employees during the strike. It stands to reason that the intimidation of non-striking workers, the damage caused to replacement employees’ vehicles or the sabotage of the employer’s processes or plants is likely to be committed by striking employees. Who better than the striking workers will know the identity of non-striking workers? Who will know better than the striking workers how to sabotage the assembly line, the sub-station, the vehicles?
Retort
While the common retort from trade unions is that criminal elements unrelated to the trade union or striking workers use the opportunity to cause mayhem, should this be accepted as a get-out-of-jail card in the hands of trade union leadership or striking workers?
Employers seeking to restore the equilibrium in the employee relations climate should consider such a response with more than the proverbial bag of salt.
What action can a concerned employer undertake? First, employers should clearly communicate their attitude in respect of unlawful conduct to their employees. This should not be limited to a communique from the chief executive advising that the company will not tolerate any unlawful conduct committed by its employees, whether under the guise of performing their functions or participating in industrial action.
While such a communique is a good start, the true test is the conduct of the company when it uncovers unlawful conduct.
The employer should create a culture where every employee knows that the employer will not tolerate unlawful conduct.
Having communicated its attitude regarding unlawful conduct, an employer should ensure that it has the appropriate resources to gather evidence of unlawful conduct when committed by its employees.
This could range from simple initiatives such as installing cameras in high-risk areas to establishing a whistle-blowing line to allow employees to provide details of unlawful conduct.
Where claims can be substantiated, the employer should take the necessary disciplinary action against employees committing unlawful acts. Employees who abuse the sanctity of a protected strike in order to assault, damage property, steal or sabotage should be brought to book.
Employers should ensure that employees know that action will be taken against wrongdoers. It is in the interest of everybody concerned that we get to a point where striking workers rely on well-reasoned demands and strategic action to achieve their goals, and employees can vote with their feet if they feel that strike action is inopportune.
Only where non-strikers receive as much protection for their election as strikers, will we get to a point where sound argument and motivated needs trump criminal conduct masquerading as legitimate strike action.
Johan Botes is the director for employment law at Cliffe Dekker Hofmeyr.