Court rules striking workers carrying sjamboks, clubs deserved to be dismissed
Pretoria - The Labour Appeal Court has ruled that striking workers who carried weapons such as sticks and golf clubs during a picket, knowing it was against their company’s rules, deserved to be dismissed.
A company called Pailpac turned to the court after it had dismissed several of their workers for taking part in a strike while being “armed”.
There are clear signs on the company’s premises stating that it was illegal to strike while armed.
Initially, an arbitrator of the bargaining council had found that the dismissal of the workers – all members of the Numsa – was unfair and ordered their reinstatement.
The union embarked on a strike in the metal and engineering industry in July 2014. The employees, employed by Pailpac at its factory in New Germany, KwaZulu-Natal, participated in the strike.
They were dismissed for misconduct relating to the carrying of weapons such as sticks, PVC rods, sjamboks and golf clubs.
Pailpac charged them in terms of its revised Breaches of Discipline document for “brandishing and wielding weapons during a strike”. The dismissed employees were found guilty as charged at individual disciplinary hearings and dismissal was recommended.
Pailpac dismissed all of them.
After they turned to the bargaining council in a bid to be reinstated, the arbitrator said their dismissals were unfair, as she reasoned it could not be said the workers knew of the rule that they may not carry weapons during a strike.
Pailpac challenged this finding on review. It argued that the arbitrator’s award was reviewable as the outcome reached was not one that could reasonably have been reached on the evidence and other material before the arbitrator.
The Labour Court dismissed the review, after which the company took the matter to the Labour Appeal Court. The company said it was clear that it had a rule stating that picketers “shall at all times conduct themselves in a peaceful manner”.
They may carry placards, chant slogans, sing and dance, but they may not physically prevent members of the public, other employees or service providers from entering or leaving the premises, nor may they disrupt the normal functioning of the company or engage in unlawful or violent actions.
The company also made it clear that no weapons of any kind were to be carried or wielded by the picketers.
Judge Fayeeza Kathree-Setiloane said that according to the evidence, the rules were displayed on the notice board at the main entrance to the factory, close to the clocking-in station.
She said if other striking employees had managed to approach the wall (next to the gates) to read the picketing rule, then the dismissed employees should have been able to do so as well as it was purportedly posted there calling on all striking employees to return to work.
“The evidence reveals that they had, in fact, approached the wall to read the message.
She added that, therefore, on the probabilities, the dismissed employees would have been aware of the rule or could reasonably have been expected to be aware of the rule.
The judge said any reasonable employee would know that bringing a dangerous weapon to work would not be tolerated.
To do so was in flagrant disregard of a clear workplace rule which prohibits such conduct during a picket or strike, and expressly warns that the consequences of the breach is the sanction of dismissal.
Numsa said they would appeal the court ruling at the Constitutional Court.
General secretary Irvin Jim said for now they would discourage workers from carrying weapons during protests until the final outcome on the matter.