Introduction
In the matter between Pailprint (Pty) Ltd v Lyster N.O and Others[1] the Labour Appeal Court confirmed that the presence of weapons of any kind, whether carried, brandished or wielded during a picket, will be construed as undermining the peaceful support of the strike and will render the picketers unprotected against disciplinary action.
Background
From 1 July 2014, the Employees of Pailprint took part in a national strike. Pailprint’s disciplinary code made the brandishing or wielding of dangerous weapons a dismissible offence. Pailprint’s picketing policy, which was communicated to the striking employees, stated that picketers may not engage in unlawful or violent actions, no weapons of ANY kind are to be carried or wielded by the picketers and the company may take disciplinary action where an employee’s actions during a picket are in breach of the organisation’s disciplinary code.
During the strike, some employees were seen carrying sticks, one carried a PVC pipe, one carried a sjambok, one employee carried a golf club and another an axe. They were charged with brandishing or wielding of dangerous weapons during the strike and were dismissed.
The dismissed employees referred an unfair dismissal dispute to the CCMA, and the arbitrator found the dismissals to be substantively unfair.
Pailprint reviewed the decision of the arbitrator, but the Labour Court found there to be no reason to interfere with the arbitration award since it was not unreasonable and the review application was accordingly dismissed with costs.
The Labour Appeal Court’s findings
The LAC specifically looked at the four reasons provided by the arbitrator for finding the dismissals unfair –
Dismissals can be justified for more than one reason
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BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: This email address is being protected from spambots. You need JavaScript enabled to view it..
Item 7(b)(iv) of the Code of Good Practice: Dismissal (the Code) provides that, in deciding if a dismissal was fair, a person is to consider a number of factors. One of these factors is whether dismissal was the appropriate sanction in the particular circumstances. Item 3(4) of the Code says that dismissal is only appropriate for those serious offences that make the “a continued employment relationship intolerable”. Such serious offences could include, for example, gross insubordination, endangering the safety of others, wilful damage to the employer’s property, gross dishonesty and assault.
While these examples are not the only potential justifications for dismissal, even these gross offences will not automatically give the employer the right to dismiss. This is because, in addition to looking at the seriousness of the offence itself, the person imposing the sanction is obliged to consider:
- Mitigating circumstances such as the employee’s length of service, previous disciplinary record, personal circumstances and others.
- The nature of the job – For example, while sleeping on the job might be most serious for a security guard it may not merit dismissal for a back room clerk.
- Other circumstances attached to the case. For example, if the security guard fell asleep because he had to work a double shift without a break, this could render dismissal too harsh a penalty.
However, the concept of ‘intolerability’ is not an objective one.
Retrenchment, mutual temination not the same thing
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Where a voluntary separation package is accepted by an employee the parties might agree that the payment will be calculated in the same way to that used for calculating a statutory retrenchment package. That is, the calculation might be based on the number of years of service of the employee.
However, this does not mean that the employee has been retrenched in terms of section 189 of the Labour Relations Act (LRA). In terms of that section, if the employer has operational requirements that might necessitate terminations, the employer is required to consult with the employees who may be affected or with their representatives. Section 189 allows the employer to retrench employees if there is a good enough basis for this and if the consultation process has been conducted properly.
In a section 189 retrenchment the employer does not have to get the agreement of the employees to carry out the retrenchment. Instead,
