The strike notice: does it assist the employer?

Gavin Stansfield is a director os the employment practice at Cliffe Dekker Hofmeyr.

The respondents were the liquidators of Equity Aviation Services (Pty) Ltd, which rendered services to various airports within South Africa. The majority of its employees were members of the South African Transport and Allied Workers Union (SATAWU).

SATAWU issued a strike notice after the parties had failed to resolve a wage dispute through conciliation. The aforementioned notice was issued on a SATAWU letterhead and referred to its members only. Minority trade unions confirmed that they were not party to the dispute. Despite this, employees who were not members of SATAWU participated in the strike notwithstanding their failure to comply with the provisions of the Labour Relations Act, No 66 of 1995, relating to protected strike action. Accordingly, those employees who did not give the required notice were subsequently dismissed for their unauthorised absence from the workplace.

The dismissed strikers referred a dispute to the Commission for Conciliation Mediation and Arbitration (CCMA) challenging the lawfulness of their dismissal. When conciliation did not succeed, they referred the dispute to the Labour Court on the basis that their dismissal was automatically unfair in terms of s187(1)(a) of the Labour Relations Act. The Labour Court found that the dismissed strikers were covered by SATAWU's strike notice as they were its affiliates. Equity Aviation Services appealed this decision and its appeal was dismissed by the Labour Appeal Court. The matter then progressed to the Supreme Court of Appeal where the appeal was upheld. In the Supreme Court of Appeal the court reiterated that the purpose of the strike notice is to warn the employer of the "the impending power play to enable it to make informed decisions".

Supreme Court incorrect

Accordingly, the Constitutional Court had to decide whether the non-unionised members were in fact covered by SATAWU's notice of strike. The Constitutional Court held that the Supreme Court of Appeal had prescribed the incorrect meaning to s4(1)(b) of the LRA. In terms of s64(1)(b) every employee has the right to strike and every employer has recourse to lock-out if in the case of a proposed strike, at least 48 hours' notice of the commencement of the strike has been given to the employer in writing.

The purposive interpretation that was followed by the Supreme Court of Appeal was challenged in the Constitutional Court. The majority of the Constitutional Court reiterated that parties should be cautious not to limit fundamental rights with implied limitations as opposed to those expressly stated. In this regard the Constitutional Court held that: "In our view there really is no contest. Interpreting the section to mean what it expressly says is less intrusive of the right to strike; creates greater certainty than an interpretation that requires more information in the notice; serves the purpose of the Act - specifically that of orderly collective bargaining - better; and gives proper expression to the underlying rationale of the right to strike, namely, the balancing of social and economic power."

According to the Constitutional Court the right to strike must "be seen in the context of a right protected in order to redress the inequality in social and economic power in employer/employee relations".

In contrast to the above, the minority had difficulty in understanding how the employer would be in a position properly to prepare for a strike if it does not know on behalf of whom the notice was issued. Furthermore, the minority were of the view that disorder would ensue if employees are entitled to strike even if a notice of strike makes no mention of their intention to do so.

The effect of the Constitutional Court's decision is that other trade unions' members or non-union employees are entitled to piggyback on a strike notice that was not issued on their behalf. In light of the above, employers may find it difficult adequately to prepare for an impending strike.