FGWU & Others v Minister of Safety and Security & Others [1999] 4 BLLR 332(LC)

Principle

A dismissal of a protected striker is automatically unfair under section 187(1)(a) of the LRA.

Facts

A strike resulted from the employer’s refusal to bargain, which subsequently led to the strikers being dismissed. The strikers then sought an interdict against the police, to prevent the police from interfering with their actions. During these interdict proceedings, the Labour Court’s jurisdiction to intervene was challenged.  At issue was whether the dismissal of the strikers terminated the employment relationship and brought to an end their right to strike. The Court found that the dismissal of protected strikers did not terminate the employment relationship or their right to strike. The Court confirmed that the purpose of strike action is to enable workers to bring pressure to bear on their employers.  To facilitate this, the LRA has limited the employer's common law right to terminate an employee’s employment for withholding labour.  Any dismissal of a protected striker is considered to be automatically unfair as defined in the LRA.

Extract from the judgement

[18]   There are several reasons why the legislature should seek to ensure that the employment relationship between an employer and its workers who are on strike should in appropriate circumstances endure beyond the formal termination of the contract by the employer. I have already mentioned some of the jurisdictional anomalies that could arise were this not to be the case. Further considerations are the very purpose of strike action, and the manner in which the exercise of the constitutional right to strike, and the countervailing common-law right to lock-out, have been regulated in the Act. The purpose of strike action is to enable workers to bring pressure to bear on their employers by the withdrawal of their labour in order to induce them to comply with some work-related demand. To facilitate the achievement of this purpose, the Act has limited the employer’s common-law right to terminate on the basis of what would otherwise be a breach of contract and the legislature has created the concept of a protected strike. Once protection is acquired by compliance with the Act, the employer is precluded from dismissing the strikers for the Act of striking per se (see section 67(4)). Such a dismissal is rendered “automatically unfair” (see section 187(1)(a)). It is further provided that participation in a protected strike does not constitute a delict or a breach of contract (see section 67(2)). To equalise the power balance, the employer’s common-law right to withhold payment of remuneration for the duration of the strike is confirmed (see section 67(3)). So also, by implication, is its right to take on replacement labour (see section 76). The employer is also given the right to lock the strikers out, provided that it may not dismiss them pursuant to such lock-out (see section 64(1), read with section 187(1)(c)).