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Strike action is increasingly marred with a high incidence of violent conduct by strikers causing damage to property and thus considerable financial losses to the employer.

May an aggrieved employer pursue a claim for compensation for loss attributable respectively to a strike?

Unprotected strikes

Section 68(1)(b) of the Labour Relations Act, 1995 (“LRA“) provides that, if an employer has suffered loss as a result of an unprotected strike or conduct in furtherance of such a strike, it may claim compensation that is “just and equitable” from the responsible party.

Either the trade union or its members involved in the unprotected strike/conduct or both can be held liable for compensation awarded under Section 68(1)(b) of the LRA. Employees can be liable because they participated in the unprotected strike and are, to that extent, the direct cause of the losses suffered by the employer. The trade union can be liable if it called for a strike that is unprotected and then leads to the employer suffering losses.

Assuming that the requirements can be met, Section 68(1)(b) obliges the Court to consider various factors under Section 68(1)(b)(i) to (iv) in deciding whether compensation should be awarded and, if so, what the fair quantum should be. The factors that are taken into account include:

  • whether attempts were made to comply with the provisions of the act (in relation to the requirements for a protected strike) and the extent of those attempts;
  • whether the strike or conduct in furtherance thereof was premeditated;
  • whether the strike or conduct in furtherance thereof was in response to unjustified conduct by another party to the dispute;
  • whether there was compliance with any order of the Labour Court interdicting the strike;
  • the interests of orderly collective bargaining;
  • the duration of the strike or conduct in furtherance thereof; and
  • the financial position of the employer, trade union or employees respectively.

Protected strikes

The following sections of the LRA confer immunity to employees engaged in protected strike action:

  • Section 67(2) of the LRA provides that a person taking part in a protected strike or protected lockout, or any conduct in contemplation or furtherance of a protected strike or a protected lockout, does not commit a delict or a breach of contract.
  • Section 67(6) provides that civil legal proceedings may not be instituted against any person for participating in a protected strike or lockout, or any conduct in contemplation or in furtherance of a protected strike or a protected lockout.
  • However, the immunity is not absolute in that section 67(8) of the LRA provides that the provisions of the subsections ‘do not apply to any act in contemplation or in furtherance of a strike or lockout, if that act is an offence’.

In Massmart Holdings Ltd & others v South African Commercial Catering and Allied Workers Union the Labour Court examined the issue of whether an employer may claim compensation for conduct committed during a protected strike.

In this matter, the Massmart Holdings Group (“Massmart”) instituted a claim for compensation in terms of section 68(1)(b) of the LRA, against the South African Commercial Catering and Allied Workers Union (“SACCAWU”) arising from the losses which Massmart suffered during the course of a protected strike called by SACCAWU. Massmart averred that, during the strike, SACCAWU’s members committed various offences.

The Labour Court held that it may consider claims for compensation in terms of section 68(1)(b) if the strike is protected on the basis that:

  • Section 68(1)(b) states that the court has jurisdiction to order the payment of just and equitable compensation for any loss attributable to an unprotected strike “or conduct”. The term “conduct” is not explicitly linked to an unprotected strike nor qualified as being conduct in furtherance of an unprotected strike.
  • The immunity afforded in terms of section 67(6) of the LRA does not apply to unlawful conduct in contemplation or furtherance of a protected strike.

Conclusion

The immunity for striking employees and unions engaged in a protected strike does not apply to conduct during a protected strike that constitutes an offence.

Employers may rely upon section 68(1)(b) of the LRA as a remedy to claim compensation for losses attributed to a strike that have subsequently turned violent and resulted in various offences. 

Should you require any more information, please contact Melanie Hart at melanie@bv-inc.co.za.