In 2014 workers were dismissed by their employer for misconduct during a strike. Five of these workers challenged their dismissals in the CCMA.
Five years and several hundreds of thousands of Rands later, three judges in the Labour Appeal Court finally decided that the workers had indeed committed misconduct:
So, what had the workers done that was so bad?
They had carried sticks, a sjambok and an old piece of a pipe, during the strike demonstrations. They had not hit anyone or anything with these items. They carried them.
The Labour Appeal Court judgment
The judges decided that the workers had committed misconduct by merely carrying the sticks, sjambok and piping because the picketing rules did in fact prohibit 'weapons' being carried on the picket line, and that this was a justifiable or reasonable rule to have in place.
The judges then decided that in this context, these items were weapons (at least to the extent that they were 'threatening') , saying:
'The decision to have a sjambok, PVC pipe and sticks at a protest, at which others were in possession of a golf club and axe, was not only a clear breach but, viewed objectively, was aimed at sending a message which, at the very least, was threatening to others.'
Were the judges correct?
The three Labour Appeal Court judges in this case were Judges Savage, Musi and Murphy - three very accomplished and balanced judges.
So a judgment like this from these judges is surprising - on the face of it.
Even DA MP and labour lawyer Michael Bagraim has commented that, 'The brandishing of sticks and sjamboks would in a western context mean that the crowd is ready for violence. However, in South Africa it has been traditional for people to dance with the sticks and sjamboks and invariably does not lead to violence. I believe the Labour Appeal Court was incorrect and [should] have taken the local custom into account.'
Bearing in mind the general scrupulousness of these judges, their usual concerns with fairness and reality, and their experience in labour law, we suspect that this issue of 'local custom' was not actually placed before them in evidence or in legal argument. So, it is possible that the court was not technically wrong, and that, faced with more evidence on why sticks are carried, the judges would have judged the five workers' differently.
What we do know - the effects of this decision
The LAC's judgment is being interpreted by employers' lawyers to say that sticks are weapons or are threatening, and that workers carrying sticks at strikes may be dismissed.
This means that the judgment could be mobilised by employers to facilitate dismissals of striking workers for merely carrying sticks and similar items. Given how common the practice of protesting with sticks in South Africa is, we are looking at a lot of dismissed workers.
We are seeing it already in one of our cases: The judgment is being relied on to justify the dismissal of an entire striking workforce at a Gauteng factory - that's 181 workers!
Here is some of the evidence that was placed before the CCMA against our clients:
Litigation on behalf of the 181 dismissed workers
Our case concerning 181 workers is still being heard in the CCMA, and we have filed a notice of our intention to bring evidence that carrying sticks at a demonstration is not for the purpose of threatening and intimidating employers and other people, and that this kind of general interpretation of the gesture is based on colonial-style fears of black people.
Wish us luck, we're dusting off our Frantz Fanons for this one.
Three asides before we go
1. R100,000 plus on litigation is not an exaggeration. Just the photocopying expenses involved in taking a case on appeal would set an ordinary worker back several generations - at least at current wage rates. Fortunately, the Pailprint workers were represented by a large well-resourced trade union.
2. Whether the Labour Appeal Court applied the correct legal test in this kind of case is a separate issue, which we are not dealing with right now, because we recognise how boring that would be.
3. NUMSA applied to the Constitutional Court, asking it to overturn the judgment of the Labour Appeal Court. NUMSA's application was dismissed by the Constitutional Court without a hearing, so we do not yet know what the Constitutional Court's thoughts would be on the issue.
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