Employers beware!
It has become critical for employers to properly identify perpetrators when seeking final relief to interdict unlawful conduct during the course of a strike. This was made clear by the Constitutional Court in a recent judgment involving the Commercial Stevedoring Agricultural and Allied Workers’ Union and Oak Valley Estates (Pty) Ltd.
What happened
During May 2019, a protected strike began at the premises of Oak Valley Estates (Oak Valley). The strike arose out of allegations of racism in Oak Valley’s allocation of employee housing and its refusal to recognise “seasonal workers” as permanent employees.
Picketing rules were determined by the CCMA and it was not in dispute that instances of intimidation, damage to property and unlawful interference with Oak Valley’s business operations occurred during the course of the strike (all of which were breaches of the picketing rules).
Oak Valley tried unsuccessfully to obtain an undertaking from CSAAWU that its members would comply with the picketing rules and would desist from any unlawful conduct. However, CSAAWU alleged that the unlawful conduct complained of, had been perpetrated by members of the local community over whom CSAAWU had no control. Turning to the Labour Court, Oak Valley managed to obtain an interim order interdicting CSAAWU and 306 workers. It also sought to interdict certain “unidentifiable respondents” who it alleged were “people who associate themselves with the individual respondents in the criminal and unlawful conduct”.
When Oak Valley sought to have its interim order made final, it abandoned its case against 191 workers who were no longer participating in the strike but proceeded against the remaining respondents. To this, CSAAWU and its members raised the following three defences:
the Labour Court lacked jurisdiction regarding the alleged breaches of the picketing rules as the dispute should have been referred to the CCMA in terms of Sections 69(8) or (9) of the Labour Relations Act;
the interdict was too broad and restricted striking workers from accessing their homes situated on the Oak Valley property;
there was no link between the alleged unlawful conduct and the respondents in question.
The Labour Court accepted that it could not interdict the unidentifiable members of the public but rejected the remainder of the defences raised. The final interdict was granted.
In the Labour Appeal Court, CSAAWU and its members were successful in relation to the first two defences but the Labour Appeal Court accepted the Labour Court’s finding that it was unnecessary to establish a link between the alleged unlawful conduct and the respondents. Accordingly, the Labour Appeal Court upheld the final interdict as Oak Valley has been able to name certain individuals who participated in what it considered to be unlawful acts together with a group of unnamed but clearly identifiable individuals.
The Labour Appeal Court reasoned that “[t]o insist in the fraught context of an industrial relations dispute that an employer can only gain relief against those employees it can specifically name from a group which was involved in unlawful activity is surely a bridge too far”.
The matter duly found its way to the Constitutional Court where CSAAWU argued that a final interdict can only be granted if a rational factual connection can be drawn between the unlawful conduct and the workers they seek to interdict. They submitted that there was no such link and that neither the Labour Court nor the Labour Appeal Court had found that there was such a link. In determining whether there was a link between the striking workers and the unlawful conduct, the Constitutional Court was required to determine whether mere participation in a strike, protest or assembly in which there is unlawful conduct, is sufficient to establish the required link.
The Constitutional Court noted that “if mere participation in a strike or protest carries the risk of being placed under an interdict, this might well serve to deter lawful strike and protest action.”
The Constitutional Court noted the following two principals that arise from our jurisprudence:
mere participation in a strike, protest, or assembly in which there is unlawful conduct, is insufficient to link a participant to the unlawful conduct;
the necessary link can be established where participants commit unlawful conduct as a cohesive group.
In this regard, if found that where unlawful conduct in strike action is widespread and ongoing, or protesters try to conceal their identities by, for example, wearing masks, individual protesters will have to disassociate themselves from such unlawful conduct in order to escape the inference “that it is reasonably apprehended” that they will cause damage to the employer. In contrast, where there are isolated incidences of unlawful conduct, only those individual protesters that associate with such conduct can be placed under interdict.
The Constitutional Court found that whilst Oak Valley set out instances of unlawful conduct, it lacked specificity and it did not identify any person or group of people who were responsible for such conduct, who had associated with such conduct or who had failed to disassociate with such conduct. The Constitutional Court concluded that the allegations made by Oak Valley amounted to:
certain unlawful conduct that took place; and
the individual respondents together with unidentified members of the public were responsible.
The Court found that, “save for CSAAWU and the 23rd applicant, Oak Valley had failed to draw the required link between the applicants and the unlawful conduct. It therefore had failed to show that “it had a reasonable apprehension that it would suffer injury at the hands of those applicants if they were not placed under interdict”.
From this case it is clear that in order to prove the link and obtain relief, employers need to either:
positively identify culprits of unlawful conduct in strike action;
put up facts from which an inference can be drawn that it is more probable that the protestor is engaged in the unlawful conduct
Employers will be best placed in interdict applications to submit as much evidence as possible to establish the link between the employees on strike and the unlawful conduct complained of, whether it be by identifying specific employees in instances of isolated unlawful conduct or adducing facts from which an inference can be drawn that it is more probable that the employees have engaged in unlawful conduct. Sweeping allegations that employees are acting unlawfully in concert will not be sufficient in the absence of proper evidence.
It must be noted that the proper identification of culprits of unlawful conduct will not only satisfy the requirement that there must be a link but will assist employers in successfully disciplining employees who have embarked upon such unlawful conduct.
What is clear from this judgment is that employers will now find themselves having to play “Where is Wally”.
