Cape Town – Be it sticks, pipes, sjamboks, or golf clubs used during protest action, they qualify as "dangerous weapons” and, if listed as a company contravention, it constitutes a dismissible offence, the Labour Appeal Court (LAC) has ruled.
The ruling follows National Union of Metalworkers of SA (Numsa) members employed by Pailpac (Pty) Ltd, who participated in a protected strike during which they carried weapons (sticks, PVC rods, sjamboks and golf clubs), were charged under a company rule for “brandishing and wielding weapons during a strike”.
The employees referred an unfair dismissal dispute to the Metal and Engineering Industry Bargaining Council for arbitration, where their dismissals were found to be unfair.
Pailpac had applied to the Labour Court to review the arbitration award, but the Labour Court upheld it. Pailpac then appealed to the LAC, where it was successful, with costs.
“We are still in the process of studying the judgment,” Numsa spokesperson Phakamile Hlubi-Majola said.
The primary issue for determination was whether the employees knew or could reasonably have been expected to be aware of the rule, which was placed on a notice board at the entrance of the factory.
The dismissed employees contended that there was no acceptable evidence before the arbitrator that they had actual knowledge of the rule prohibiting the carrying of weapons, and the sanction for contravening it.
“Pailpac’s central argument is that the evidence shows that the dismissed employees had knowledge of the rule preventing them from, effectively, carrying sticks, sjamboks and golf clubs in a hostile fashion during the strike, but the arbitrator ignored this evidence, which was material to the outcome of the dispute,” Judge Fayeeza Kathree-Setiloane said.
“Viewed objectively, the breach of the rule by the dismissed employees coupled with the ensuing harm to, and intimidation of, non-striking employees rendered their continued employment intolerable and made dismissal an appropriate sanction. The sanction of dismissal was fair and appropriate in the circumstances.”
Labour lawyer and partner at Webber Wentzel Lizle Louw said the judgment would apply to instances where employees said they were not aware of the rules.
“The practical relevance of this judgment is the test to be applied when employees claim that they were not aware of workplace rules. The correct test is not only whether the employees were aware of the rule, but also whether they could reasonably be expected to be aware of it.
’’It is also relevant that the LAC confirmed that sticks, pipes, sjamboks and golf clubs are ’dangerous weapons’, a term which is usually found in picketing rules,” she said.
Pailpac had not responded to requests for comment by deadline.
Cape Times