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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. Given recent events, strike related activities again feature strongly in this month's newsletter. It includes a case study on a violent strike, that took place some years ago, but the ramifications of which have recently been considered by both the LAC and the LC. In addition, we look at three new cases. The first case deals with a recent Constitutional Court decision on whether a separate strike notice has to be given by minority union and non-union members. The second case asks whether full time shop stewards are entitled to be paid during a strike. The third case looks at those circumstances which might constitute misrepresentation, allowing an employee to declare a settlement reached 'in full and final settlement' to be invalid.
This public newsletter is a free edited version of the subscriber newsletter.
Strike notice: who has to give it?
SATAWU referred a wage dispute with Equity Aviation Services to the CCMA for conciliation which failed, and the CCMA issued a certificate to that effect. On the same day SATAWU issued a strike notice to the employer (Equity); the notice was written on SATAWU's letterhead and stated that ""....we intend to embark on strike action...." at a specified date and time. SATAWU members commenced the strike as planned. Equity accepted that their strike action was "protected" because SATAWU had given the requisite notice on their behalf.
Other workers who were not members of SATAWU also took part in the strike, despite Equity's repeated warnings to them to return to work as it considered their participation in the strike action unlawful for lack of a strike action notice. As a result Equity dismissed them for unauthorised absence from work during the strike. None of the dismissed strikers, or anyone acting on their behalf, had issued a separate strike notice to Equity. Equity had been assured by minority trade unions at its workplace that they, the minority unions, were not party to the dispute.
This case concerned the proper interpretation of section 64(1)(b) of the LRA. The section provides that in the case of a proposed strike "at least 48 hours' notice [in writing] of the commencement of the strike" must be given to the employer. The LC found in SATAWU and Others v Equity Aviation Services (Pty) Ltd 2006 27 ILJ 2411 (LC) that employees who are non-union members may participate in a lawful strike called by a union, without giving their own strike notice.
The case wound its way through the LAC and on to the SCA in Equity Aviation v SATAWU (478/09)  232 ZASCA (30 November 2011), where the court effectively overturned the earlier judgment and ruled that employees who do not belong to the union that has given the strike notice must, in order lawfully to embark on strike action, give notice that they too intend to strike.
In the recent Constitutional Court decision in SATAWU & others v Moloto N O and another CCT 128/11  ZACC 19, the judges were split 5/4. The minority judgment held that it is essential to determine who a strike notice covers and that there was no reason to interfere with the decision of the SCA, where 5 judges had given a unanimous judgment. The majority judgment in the Constitutional Court - effectively 5 judges overruling the judgment of 9 other senior judges - held that the factual context of the case (there was an agency shop agreement and a recognition agreement recognising the union as negotiating on behalf of all employees), the fundamental importance of the right to strike, the general purpose of the LRA, the specific purpose of section 64(1)(b) and the lack of any express provision requiring more than mere notice of the time when a strike will commence, all weigh against reading implied requirements into section 64(1)(b).
The majority CC judgment held that the employees who had been dismissed for striking without giving notice to the employer of their intention to strike, were not required to give strike notices in addition to that given by the union. The judgment also held that the strike notice was not required to indicate the number of employees who were going to participate in the strike.
Payment for full-time shop stewards during a strike
In SA Municipal Workers Union v Ekurhuleni Metropolitan Municipality (LC J1120/11; 31 May 2012, SAMWU approached the Labour Court on behalf of three full time shop stewards for an order that the Ekurhuleni Metropolitan Municipality be interdicted from deducting amounts from their salaries and for an order directing the Municipality to repay deductions made from their salaries. At issue was whether these three full-time shop stewards were entitled to be paid during a strike, in circumstances where the principle of 'no-work-no-pay' was applied to the rest of the striking workforce.
The Labour Court, in looking at the collective agreement which established full-time shop stewards, said that it is clear that a full-time shop steward no longer renders work to the employer for the benefit of the employer. The task of the full-time shop steward is to act for the benefit of the union and its members on a full time basis, and in doing so will usually liaise with the employer whenever necessary.
The anomaly of the position of the full-time shop steward is the fact that although he/she remains employed by the employer and as such is subject to the same conditions of service as other employees, the full-time shop steward will not render a service to, or work for the employer for the benefit of that employer: The full-time shop steward works for the union and for the benefit of the union.
The further anomaly of this position as full-time shop steward is the fact that the shop steward, by virtue of his/her position, will often engage in conflict with the employer over union related matters. As such, full-time shop stewards and employers are 'natural adversaries'. It is true that shop stewards must report to a designated member of the employer for 'administrative' purposes, but the full-time shop steward is accountable to the trade union for the satisfactory performance of shop steward duties.
'No-work-no-pay' arises from the principle that an employee is to tender services to the employer in return for payment of a salary. If an employee does not tender services during a strike, the employee will not be entitled to be paid. But as long as the full-time shop steward tenders and/or engages in the duties and obligations of a full-time shop steward, he/she is therefore entitled to the payment of his/her salary.
The court held that this principle extends to full-time shop stewards who participate in a strike, in the sense that they fulfill their union obligations whilst the strike is continuing. The principle of 'no-work-no-pay' therefore does not apply to a full-time shop steward during the course of a strike, provided that the full-time shop steward engages in trade union activities to the satisfaction of the union and reports to the union structures during the strike.
Whether there are general lessons to be drawn from this case depends on the nature of each collective agreement which establishes the post of full time shop steward. But for municipalities this case has provided a firm ruling. We do however wonder how this decision will be regarded by striking workers feeling the pain of the 'no work no pay' principle, when they hear that their full time shop stewards are still being paid during this period.
Misrepresentation & settlements 'in full & final settlement'
Confronted with possible dismissal for operational requirements, the applicant entered into an agreement in full and final settlement with the employer. In terms of that agreement, the applicant was paid severance pay; one month's notice pay; and an ex gratia payment. He waived any claim that he might have regarding the termination of his service.
Subsequently, the applicant learnt that the employer had commenced a new building project at Saldanha. He claimed that he entered into the settlement agreement based on a misrepresentation by the employer and that the agreement was null and void. He claimed that he was therefore dismissed, that it was substantively and procedurally unfair, and that he was entitled to compensation equivalent to 12 months' remuneration.
The pertinent question to be decided was whether the parties entered into a valid agreement in full and final settlement of the termination of the employee's services. If, however, he was induced to enter into the agreement by misrepresentation, the question arises whether the agreement was void or voidable. If so, and the agreement was set aside, the questions that then arose were whether he had been dismissed, and if so, whether the dismissal was fair.
The court in Ferguson v Basil Read (Pty) Ltd (LC C 708/10, 29 August 2012) noted that the employer's operational requirements necessitated, at the very least, that it consult with the employee on the possibility of his dismissal for operational requirements, but the employee elected to enter into a mutual separation agreement instead. The consultation process envisaged by s189 of the LRA is meant to be a joint consensus-seeking exercise. The employee elected not to take part in such an exercise.
The court held that, given the evidence and the probabilities, he entered into the full and final settlement agreement with 'open eyes'. It was not based upon misrepresentation and the employer did not dismiss him; the question of fairness, therefore, did not arise.
The lesson of this case is this: Where an employee voluntarily enters into a termination agreement with the employer in full and final settlement of any disputes arising from his employment, and waives the opportunity to engage in a consultation process, the employee may not later claim that s/he was induced to enter into the agreement by misrepresentation. Legally, there is no dismissal in these circumstances.
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