Article 59/2022

To what extent may an employer pay non-striking employees a bonus during a strike?

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The original position is reflected in SACCAWU v OK Bazaars (1929) Ltd (1995) 16 ILJ 1031 (A) where Grosskopf JA held the following:

  • measures to discourage strikes are encouraged and legally permissible (e.g. the offering of financial inducement to non-strikers)
  • the threat of withholding a bonus from strikers or the actual withholding of such a bonus does not affect workers’ freedom to strike
  • it is unreasonable to deprive non-striking workers of a bonus merely because others are engaged in a strike with which the non-strikers have no sympathy

(The above approach is followed in National Union of Mineworkers v Cullinan Diamond Mine, a division of Petra Diamond Mines (Pty) Ltd (2019) 30 SALLR 184 (LC); (2019) 40 ILJ 1826 (LC) (‘Petra Diamonds (LC)’) and National Union of Mineworkers v Petra Diamonds t/a Cullinan Diamond Mine (2021) 32 SALLR 9 (LAC); (2021) 42 ILJ 785 (LAC) (‘Petra Diamonds (LAC)’)

The industrial court, in Chemical Workers Industrial Union v BP South Africa (1991) 12 ILJ 599 (LC), held the viewpoint that there were good and compelling economic reasons to differentiate between striking and non-striking workers for the duration of a strike (see also East Rand Gold and Uranium Co Ltd v NUM (1989) 10 ILJ 683 (LAC)) – this approach was followed in Petra Diamonds (LC) and Petra Diamonds (LAC)

The following labour court judgments, however, adopted a different approach, as that set out above:

  • in National Union of Mineworkers v Namakwa Sands – a division of Anglo Operations Ltd (2008) 29 ILJ 698 (LC), it was held that the payment of a so-called redeployment allowance and free meals per se amounted to a breach of s5(3) of the LRA
  • in Food & Allied Workers Union and Others v Pets Products (Pty) Ltd (2000) 21 ILJ 1100 (LC), it was held that a R200 voucher paid to non-striking employees for hard work performed during a strike and going the extra mile, so to speak, per se amounted to a breach of s5(1) of the LRA

(The above approach was not followed in Petra Diamonds (LC) and Petra Diamonds (LAC).)

In Petra Diamonds (LAC), the following approach was adopted:

  • the question to be answered is whether a differentiation between non-striking employees and striking employees is justified in the circumstances
  • economic sanctions underwrite the collective bargaining process
  • the countervailing power of an employer to a strike is not the prerogative to lockout but indeed the prerogative to act unilaterally
  • consequently, what must be determined is whether or not the unilateral offer to pay a bonus, extra pay, etc, is:
  • suitable and
  • necessary (proportional)
  • to protect property and business
  • the above is, in essence, a factual question
  • in casu, it was found that such unilateral offer was justified, seeing that it was proportional and protected the business of the employer

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.