Algoa Bus Company v SATAWU & others (2009) 18 LC 9.5.5

Principle:

The Labour Court’s jurisdiction under section 68(1)(b) of the LRA to order the payment of  “just and equitable” compensation for any loss attributable to an unlawful strike or lockout, means no more than that compensation awarded must be fair. This was designed to compensate an aggrieved party for losses actually suffered. However, compensation need not necessarily do so

Facts:

The employer sued two unions and its employees for compensation under section 68(1) of the LRA, for losses caused by an unlawful strike. Section 68(1) gives the Labour Court the power to grant just and equitable compensation for any loss attributable to an unlawful strike after considering -

• whether attempts were made to comply with the Act;
• whether the strike was premeditated;
• whether the strike was in response to unjustified conduct by the employer;
• whether the union complied with any interdict granted;
• the interests of orderly collective bargaining;
• the duration of the strike;
• and importantly, the financial positions of the parties.

The court said that just and equitable compensation was designed to compensate an aggrieved party for losses actually suffered, but that the court was not obliged to compensate for all losses sustained. Taking the above factors into account, the compensation had to be fair. The employer had quantified the loss caused by the strike by comparing the figures of tickets sales and kilometers travelled in the corresponding days of the previous week, and set off savings in unpaid wages and on wear and tear and fuel. The employees disputed the amount of damages claimed by the employer. Whilst the employer claimed R465,000, the court awarded R100 000 payable in monthly instalments of R50. On our calculations, this will take over 160 years to be paid off, which seems utterly futile.

Extract from the judgment

[38]   Therefore the total loss of revenue arising from the strike was R465 001,34.

[39]   However, the strike did not endure for a full two days. If endured for nine hours on 30 January 2008 and for seven hours on 31 January 2008, I cannot therefore, accept the applicant’s submission that it is immaterial that the strike lasted less than two days.

[40]   I submit that in the absence of any explanation by the employees, the Court is with respect obliged to find that:

40.1.   The strike was premeditated, that neither the employees nor the union made any attempts whatsoever to comply with the provisions of the LRA, that the strike was not in the interests of orderly collective bargaining and that the strike was not in response to unjustified conduct by the applicant.

40.2.   The strike was not only unprocedural but for a reason prescribed by the LRA.

40.3.   While the strike was for a relatively brief duration, it caused loss to the applicant and inconvenience to the public.

[41]   The court must also consider that the applicant applied the principles of “no work no pay” during the strike.

[42]   In Mangaung Local Municipality v SAMWU [2000] JOL 10582 (LC), the applicant claimed the amount of R272 541, 84 as a result of loss suffered as a result of a strike. The court awarded the applicant compensation in the sum of R25 000.

[43]   In Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union [2002] 1 BLLR 84 (LC), the applicant claimed that it suffered losses of at least R15 million as a result of a strike. However, the applicant subsequently reduced its claim to R100 000.

[44]   In my view, the words “just and equitable” in the Act means no more than that compensation awarded must be fair. Section 68(1)(b) providing for compensation for unprotected strike action was designed to compensate an aggrieved party for losses actually suffered. However, compensation need not necessarily do so.

[45]   In totality, the strike lasted for sixteen hours and not for two days as submitted by the applicant.

Order:

In the result, I make the following order:

[1]   The application is dismissed as against the second respondent.

[2]   The condonation application by the third and fourth respondent is dismissed.

[3]   The second respondent and the third and further respondents must pay the applicant the sum of R100 000 in monthly instalment of R50 jointly and severally, the one paying the other to be absolved.

[4]   Payment of the instalment referred to in paragraph (3) shall commence on the 2 November 2009 and shall thereafter be paid consecutively on the second of each succeeding month.

[5]   The second respondent and the third and further respondent's shall pay the applicant’s cost of suit.