Many employers have experienced strike action, protected or otherwise, which resulted in unacceptable striker behaviour such as intimidation and malicious damage to property. The employer then trundles off to the Labour Court to secure an interdict to restrain the strikers and, on occasion, their picketing rights.
One question that arises is whether an employer is entitled to discipline and ultimately dismiss a striker for apparently acting in breach of the court interdict? This precise question was answered in a January 21, 2020 Labour Court judgment in Panorama Park Retirement Village v Commission for Conciliation Mediation & Arbitration (CCMA) & 1 other (Case number JR2472/2015).
At the outset, the judgment informs us that: “The question that arises in this review application is whether it is substantively fair to dismiss an employee on allegations of being in contempt of a court order.”
The background to this case was one with which employers will be familiar. The union had embarked on a protected strike, after which the parties agreed picketing rules at the CCMA.
As is all too common, the strikers misbehaved and the employer approached the Labour Court and obtained an interim order “interdicting and restraining the first respondent as union and the second to 49th respondents from striking and/or picketing closer than 100m from each side, left or right, and within 50m in front of each of the entrances (Green and Reg gates) in Best Street, Klerksdorp, to the Applicant’s property”. Except it did not have the desired effect. Instead, at approximately 4pm, after the interdict had been obtained, management observed one of the strikers “cycling from town on his way home in Best Street close to the employer’s premises in contravention of the terms of the court order”.
The employer was of the opinion that it had the authority to discipline the striker in question for his contravention of the court order interdicting the strikers from picketing within 100m of the entrances of the employer’s premises. The employee had also allegedly come across and spoken to two replacement workers.
The employer then initiated a disciplinary process, charging the employee with “contempt of court on July 23, 2015 at approximately 4pm you were observed by the assistant manager of Panorama Aftree Dorp riding up and down Best Street, Oudorp, passing the Red gate, which is one of the entrances to Panorama Park Aftree Dorp.Your action is contravention of the ruling of the honourable Justice Whitcher’s Court order on July 2, 2015, Case No. J1309/15, paragraphs 2.2 and 2.3, in that you harassed and threatened replacement labour and were striking closer than 100m from each side left or right and within 50m in front of each gate of the entrances (Green and red gates). Your behaviour amounts to contempt of a Labour Court order.”
Once the disciplinary hearing commenced, the employer abandoned the charges related to allegations of intimidation and threatening violence, and only focused on the contempt of court misconduct allegation. The employee was found guilty and dismissed.
Unsurprisingly, he appealed against the fairness of his dismissal at the CCMA.
The commissioner held that the dismissal of the employee was unfair, noting that:
“(1) Only the courts were empowered to determine whether there was contempt of its orders and if so, what sanction to impose. A court order, however, could not be said to be an instruction issued by an employer and that disobedience of a court order cannot amount to insubordination within the employment context.
(2) The employer failed to prove on a balance of probabilities that a workplace rule existed in respect of which it had the power to discipline and dismiss the employee. In the absence of such a rule related to contempt of court, it could not be said that the employee was guilty of a breach of a rule.
(3) Even if such a rule existed, it could not be said that the employee had breached that rule since the court order did not restrain or prohibit employees from being in the area when they were not picketing and on strike. The employee as observed in the area was not ‘striking or picketing’, but was on his way home from town, which was his usual route. He had stopped to speak to the two other employees at the end of their shift and there was nothing wrong with what he did.”
The Labour Court agreed. It ruled that: “The commissioner in this case had regard to the essence of the charge of contempt of court and correctly concluded that it is only the court that could pronounce on whether there was contempt of its orders or not.”
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 0861 115 375, email [email protected] or visit www.tonyhealy.co.za.