CONSTITUTIONAL COURT RULES ON REQUIREMENTS IN ORDER TO OBTAIN A FINAL INTERDICT ON STRIKING EMPLOYEES

What effect does the Constitutional Court case of?Commercial Stevedoring Agricultural and Allied Workers Union and Others versus Oak Valley Estates (Pty) Limited and Another [2022] ZACC 7 have on employers' interests where a strike is unprotected or protected, and there are breaches of the picketing rules.

Some lessons for the employer from the highest Court of the land.

• 364 Workers embarked on a protected strike due to claims of alleged discrimination relating to the allocation of employee housing and failure to convert temporary employment service employees to permanent employees.
• Picketing rules could not be agreed and therefore the CCMA issued rules for the strikers
• ?Notwithstanding the rules, violence, intimidation, destruction of property, and obstruction of the N2 followed, which prompted the employer to approach the Labour Court (LC) for an interdict.?
• An interim interdict was granted by the LC.

?On the return date to Court, the union raised 3 (three) defences, namely:

(a) the Court lacked jurisdiction regarding the alleged non-compliance with the Picketing Rules because the employer did not refer a dispute regarding this alleged non-compliance to the CCMA,

(b) the interdict sought by the employer was unduly broad and effectively evicted certain of the workers from their homes by restricting access to the employer’s property,

(c) the employer had failed to link any of the unlawful conduct complained of to the employees that it had cited.

• The LC accepted that it could not interdict the unidentifiable members of the public, but otherwise rejected the’ defences.
• The matter was referred to the Labour Appeal Court (LAC) and the appeal was upheld in regard to the first 2 (two) defences.?
• The LAC accepted the LC’s rejection of “the requirement of establishing a link between the individuals who were interdicted and the impugned conduct”
• ?It thus upheld the final interdict on the basis that the employer “was able to name certain individuals who participated in what is considered to be unlawful acts together with a further group of unnamed but clearly identifiable individuals”
• ?The union then approached the Constitutional Court (CC).
• The CC was asked to determine whether a final interdict ought to have been granted against The Union and the remaining Individual employees.
• The Union contended that interdictory relief will only be competent if a rational factual connection can be drawn between the alleged unlawful conduct and the Individual Respondents.
• There was no dispute that the unlawful conduct took place; the main contention was that the employer failed to establish that the unlawful conduct could be linked to the Individual Respondents.
• Without proving this link, The Union contended that granting relief would be a violation of settled law on the requirements for a final interdict.
• ?The CC distinguished between identification by name and drawing a link between the strikers and the unlawful conduct.
• The CC accepted that there must be some link between the striker/s and the alleged actual or threatened injury.
• For interdictory relief to be granted, mere participation in strike action in which there is unlawful conduct is not sufficient to link an individual to the unlawful conduct; and the necessary link can be established where the strikers commit the impugned unlawful conducted as a cohesive group.
• The CC found that if mere participation in a strike or protest carries with it a risk of being interdicted, this may deter lawful strikes and protest action, and innocent participants in strike action, would find themselves as subjects of an interdict and suffer prejudice.
• The CC found that this may result in a chilling effect on the exercise of the constitutional right to strike.?
• The CC stated, however, that whether the necessary link has been established will be based on the particular facts of each case.
• ?The CC found that “The allegations made by Oak Valley in its founding affidavit were so vague that it was simply not possible for the applicants to respond to them and offer substantiated denials. While Oak Valley may have made allegations of specific instances of unlawful conduct, it did not allege that any person or sub-group within the striking workers was responsible for this conduct, had associated with it, or even failed adequately to dissociate with it. In effect, the allegations made by Oak Valley amounted to (a) certain unlawful conduct taking place and (b) the Individual Respondents together with unidentifiable members of the public were responsible.
• The CC cautioned that the requirement does not mean that an employer must lead direct evidence which establishes conclusively that an employee was responsible for specific unlawful conduct. The employer's onus may be discharged if the employer puts up facts from which an inference can be drawn on a balance of probabilities that an employee engaged or associated themselves with the unlawful conduct.
• The effect was that an employer cannot seek final interdictory relief against unnamed or unidentifiable employees during strike action. Accordingly, employers have a more onerous duty to ensure that they sufficiently link the respondent/s to the unlawful conduct and an extra effort needs to be made to identify the striking employee.
• The appeal succeeded and the interdict was overturned with the exception of the interdict against those officials that were identified.

Comments

The following lessons are important to take note of:

1. Ensure the founding affidavit used in support of an interdict contains sufficient details linking the employees to the unlawful acts and/or proving the employees acted with a common purpose.
2. Where there is video evidence and/or photographs available with clearly identifiable employees, this should be shown to the Court (the employer, in this case, failed to do so).
3. Where there is intimidation, the founding affidavit should elaborate on who was responsible for the intimidation and how it occurred.
4. Where there is a breach of the picketing rules, ensure a dispute has been referred before applying for an interdict.

Contact me, Johnny Goldberg on 083 281 9571, or email [email protected] for more information about employers' interests where a strike is unprotected or protected,