When is a Gathering of Workers Not a Strike? Understanding Unprotected Strikes and Employee Rights
In the case of Legend Logistics (Pty) Ltd v SATAWU and Others (JR1373/21) [2024] ZALCJHB 417 (24 October 2024) the Labour Court dealt with the dismissal of a group of employees for allegedly orchestrating an unprotected strike. The employees had gathered outside of work hours to discuss their work schedule for the next day. The employer viewed this as an illegal strike and dismissed the workers.The CCMA initially found the dismissals unfair and ordered reinstatement, but the Labour Court overturned this decision.
When is a Gathering Considered a Strike?
While employees have a right to assemble and discuss work-related matters, there is a line that can be crossed into unprotected strike territory. Generally, a gathering can be considered a strike if it involves a concerted stoppage of work or withdrawal of labour with the intent to force the employer to accede to certain demands. The context, timing, and actions of the employees during the gathering are all relevant factors in determining whether it constitutes a strike.
Commentary:
This case highlights the delicate balance between employee rights and employer prerogatives. While employers have the right to discipline employees for misconduct, they must exercise this right fairly and with due regard for employees' rights.The judgment also emphasises the importance of clear and convincing evidence in disciplinary matters. Employers should not jump to conclusions based on assumptions or hearsay. A thorough investigation is essential before taking disciplinary action.
Key Takeaways for Employers:
Unprotected Strikes Remain Illegal: This case reaffirms that unprotected strikes are prohibited and can result in dismissal.
Not All Gatherings Are Strikes: However, not every gathering or meeting of employees constitutes a strike. The context and purpose of the gathering are crucial.
Burden of Proof: The employer carries the burden of proving that a gathering was indeed an unprotected strike.
Respect Employee Rights: Employees have the right to assemble and discuss work-related issues, even outside of work hours. However, this right must be balanced with the employer's right to maintain discipline and productivity.
Key Takeaways for Employees:
Right to Assemble: You have the right to gather and discuss work-related issues.
Unprotected Strikes are Risky: Participating in an unprotected strike can lead to dismissal.
Know Your Rights: Understand the difference between a lawful gathering and an unprotected strike.
