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Article 3/2024

LabourEdge

What are the requirements to be met to obtain an interdict against unlawful conduct during a protected strike where the employees against whom the employer wants to obtain this interdict did not personally commit the unlawful conduct – i e did not personally throw the stone, burn the tyre, interfere with scab labour, prevent trucks from offloading, etc?

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The requirements for a final interdict are well settled, namely:

  • a clear right
  • injury actually committed or reasonably apprehended
  • the absence of an alternative remedy (Setlogelo v Setlogelo 1914 AD 221)

Taking the above into account, it is quite clear why an employer can obtain a final interdict against an employee who actually committed the unlawful conduct – however, the problems occur when the employee did not personally commit the unlawful conduct but was present at the scene of the unlawful conduct or, alternatively, was part of the union that went out on strike.

The constitutional court, in Commercial Stevedoring Agricultural and Allied Workers’ Union v Oak Valley Estates (2022) 33 SALLR 49 (CC), formulated the following two different approaches to be applied in such environment:

 

  • Scenario 1

 

This scenario covers the factual circumstance where the unlawful conduct is ongoing, widespread and manifest – an employer will be able to obtain a final interdict against those employees who, in such circumstance, do not disassociate themselves from the unlawful conduct (this entails that, in such scenario, there is a duty on such bystanders to disassociate themselves from the unlawful conduct)

 

  • Scenario 2

 

This scenario entails the factual scene where the unlawful conduct is isolated and sporadic and the industrial action is substantially peaceful – if an employer wishes to obtain a final interdict, it has to prove (by providing direct evidence or circumstantial evidence) that the bystander wished to associate himself/herself with the unlawful conduct

From the above, it is apparent that the mere participation in a strike is not sufficient to establish the required link between an employee and the actual or threatened injury and, furthermore, that innocent bystanders are not legally caught up in the web of unlawful conduct unless they fall within the aforesaid two scenarios.  Likewise, mere membership of the union that called for the strike is not sufficient to establish the required link between the employee and the actual or threatened injury.

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Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

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How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

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In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?