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Employees engaged in strike action who carry dangerous weapons during a strike run the risk of dismissal, says Jacques van Wyk, director and labour law specialist at Werksmans Attorneys.
Citing recent case law, van Wyk said that the act of carrying weapons exposes others to the risk of injury and also serves to threaten and intimidate others. This kind of conduct is not protected by the right to strike, he said.
“In the matter of Pailprint v Lyster, the Labour Appeal Court (LAC) had to consider the above issue. “On 1 July 2014 a number of Pailprint (Pty) Ltd (employer) employees participated in a national strike called by their union, the National Union of Metalworkers of South Africa (NUMSA).
“The employees were employed in various positions at the employer’s factory. The employer’s disciplinary code provided, among others, that the ‘[b]randishing or wielding of dangerous weapons’ was a dismissible offence. ”
Van Wyk said that the employer’s picketing policy also specifically stated that employees may not ‘engage in unlawful or violent actions’ and that ‘no weapons of any kind are to be carried or wielded by the picketers’.
“During the strike, the employees were seen carrying sticks, a sjambok and lengths of piping,” he said.
“They were also in the presence of employees who carried a golf club and an axe. These acts were regarded by the employer as being in contravention of the employer’s picketing rules and the employees were called to disciplinary hearings.
“Following disciplinary hearings, the employees were dismissed for the brandishing or wielding of dangerous weapons during the strike.”
Ruling
After first being heard in the CCMA and the Labour Court, the issue was dealt with by the Labour Appeal Court.
The LAC held that it was common cause that the employees carried the sticks and piping and were in the presence of individuals carrying a golf club and an axe and that the conduct was clearly in breach of the employer’s policy and disciplinary code, Van Wyk said.
In addition, there was no dispute that this rule was valid and reasonable and its purpose was clear.
Given the seriousness of this breach – and the fact that it was expressly prohibited by the employer – it held that the dismissal of the employees was substantively fair.
“The right to strike, like most rights, is not absolute and it does not allow for the encroachment of another’s right to safety,” van Wyk said.
“The LAC held that carrying dangerous weapons on a picket line, by its very nature, exposes others to the risk of injury and also serves to threaten and intimidate.
This was not the intention of the legislature when it provided for the right to picket.
“It is worth noting that the over formalistic phrasing of the charge against the employees as ‘brandishing or wielding’ weapons was to the detriment of the employer. Employers are advised that charges against employees need not resemble formal criminal charges and it is permissible for an employer to state and describe the employee’s offence in plain language.
“It is nonetheless important to have policies and procedures in place (as was the case in the present instance) that make it clear such conduct will not be tolerated.”
New Code of Good Practice
Van Wyk added that this dispute arose before the introduction of the new Code of Good Practice: Collective bargaining, industrial action and picketing (“code“) which came into force on 19 December 2018.
The code regulates, among others, the use of dangerous weapons, he said.
“The code makes express reference to the Dangerous Weapons Act 15 of 2013 which defines a ‘dangerous weapon’ as ‘any object, other than a firearm, designed as a weapon and capable of producing death or serious bodily harm, if it were used for an unlawful purpose’.
“The code provides that the police may intervene if a person is carrying or believed to be carrying a dangerous weapon and that in the context of a picket and/or industrial action, there is no justifiable reason for the possession or display of such an object.”