Is there a duty to contact the Trade Union when employees embark on an unprotected/illegal strike?
In response to economic problems the country is facing currently Companies may have to undergo few changes, these changes and processes involved may sometimes not sit well with the employees who may decide to embark on illegal strike. The Labour Appeal Court issued an interesting judgment concerning employers’ obligation to contact the Union during unprotected strike.
In the matter of Roberts Brothers Construction (Pty) Ltd and Mpumalanga Construction (Pty) Ltd vs NUMSA & Others PA LAC 08/18 the employees embarked on illegal strike without giving the employer notice as required in terms of Section 64(1)(b) of the LRA. The employees were given three ultimatums which they failed to comply with and were eventually dismissed. NUM referred unfair dismissal dispute to Labour Court, the court held that the dismissal was procedurally unfair because the employer failed to contact the Union even if the Union did not enjoy majority presence in the workplace and was not a recognised representative of the employees.
The employer referred the matter to Labour Appeal Court. The issue that was raised in that appeal was whether an employer is obliged in terms of Item 6(2) of the Code to contact the Union regardless of its representative status at the workplace.
Item 6(2) of the Code reads as follows:
‘Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it either by complying with it or rejecting.’
In this matter the Union had only 7% membership of the workforce and did not enjoy recognition and organisational rights in terms of Chapter III of the LRA.
The Labour Appeal Court held that Item 6(2) of the Code is a guideline which ought to be followed but is not strictly binding. The duty of the employer to contact the Union in terms of the Code is restricted to a Union that has been granted organisational rights under Chapter III of the LRA. Therefore, there was no duty for the employer to contact the Union.
Conclusion: Our view is that the employer is not obliged to contact the Union during unprotected strike where the Union is not sufficiently represented or granted organisational rights. Item 6(2) of the Code would favour a recognised Union with majority representation in terms of Chapter III of the LRA.
Contact iR Worx for assistance and procedural compliance in cases of strikes.