Where employees take part in a strike, albeit protected, they run the risk of being held in contempt of court and being held personally liable for a fine or even imprisonment. This is if they step outside the realm of acceptable conduct that has been sanctioned by a court order. This applies even if employees cannot be individually identified and linked to particular acts or omissions. Similarly, unions may be held in contempt of court and liable for a fine where they do not take reasonable steps to monitor and control their members’ behaviour during strikes.

In KPMM Road & Earthworks (Pty) Ltd v Association of Mineworkers & Construction Union & others (2018) 39 ILJ 609 (LC), employee-members of the Association of Mineworkers & Construction Union (AMCU) embarked on a protected strike against their employer. The strike soon turned violent as striking employees intimidated and forcibly removed non-striking employees and subcontractors from site and prevented further access to the site by blockading a section of the N11.

The employer approached the Labour Court for an order interdicting the employees’ unlawful conduct. The order was granted on 18 July 2016 and required the striking employees to stop threatening, intimidating, harming or assaulting non-striking employees and subcontractors. They were also interdicted from assembling or congregating within 2 000 meters of the site.

AMCU was also called upon to “… take all reasonable steps within its power to persuade the striking employees not to engage in the unlawful behaviour associated with the strike.” In spite of this order and correspondences to the union’s attorneys, the unlawful conduct and violence continued. The employer therefore approached the Court for a contempt of court order against the union and the striking employees.

In deciding whether or not the employees and the union were in contempt of court, the Court considered the test as set out in Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA), which sets out that the Court (1) must be satisfied beyond a reasonable doubt that there was a refusal to comply with the order, (2) this refusal was wilful and (3) this deliberate refusal to comply was in the complete absence of bona fides.

It was found that the conduct of the employees breached the court order. The fact that individual perpetrators were not identified was of no consequence, as it was found that the employees had “… associate[ed] themselves with one another to act as a group, with a common purpose, to commit unlawful conduct in support of their strike, and persist[ed] with this conduct despite the existence of the order.” However, the Court noted the safeguard for innocent employees in that even if the doctrine of common purpose is applied, employees can exonerate themselves, as several did, by providing an explanation to the court by way of affidavit.

With regards to the union’s liability, it was held that it had not acted reasonably or taken reasonable steps to guard against the unlawful conduct of employees. The Court found that the union needed to act reasonably by pro-actively intervening where transgressions by its members occur, and ensuring it had responsible personnel on the ground to address errant employees. Only in these circumstances can the union legitimately say it took reasonable measures within its power.

The union was subjected to a fine of R1 mil suspended for three years and the employees subjected to a fine of R1 000, which the employer could immediately deduct from their salaries.

This article was written by Robin Vers, Associate,  Norton Rose Fulbright South Africa Inc

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