In a recent South African Labour Court decision in the City of Johannesburg, an employer sought to interdict collective action undertaken by members of the Democratic Municipal and Allied Workers Union ("DEMAWUSA") on the basis that the members provided an essential service as defined in the Labour Relations Act, 1995 ("LRA") and that their strike was in contravention of the LRA. DEMAWUSA accepted that its members were essential services workers but raised the unusual defence that their actions did not constitute a strike as defined in the LRA.
City of Johannesburg v Democratic Municipal and Allied Workers Union of SA and Others: background
The members of DEMAWUSA relevant to this matter were employed by the City of Johannesburg to provide medical and emergency services to residents of the City, including ambulance and fire-fighting duties. In October 2016, DEMAWUSA referred a dispute to the South Africa Local Government Bargaining Council alleging non-compliance by the City with legislative provisions regulating how emergency service personnel should respond to emergency incidents. It sought relief to the effect that no ambulance should respond to any emergency incident with only basic ambulance attendants in attendance and without either an ambulance emergency assistant or an advanced life support practitioner. The dispute was settled on the basis that DEMAWUSA would withdraw the dispute and that independently facilitated negotiations with the City of Johannesburg would continue in an attempt to resolve the dispute. It appears that these facilitated negotiation or discussions did not achieve the desired outcome.
Unprotected strike
Some three years later, in July 2019, the City discovered that a number of fire stations were not responding to emergency calls. The employees located at the fire stations concerned confirmed that they were not attending to calls because they required the City to respond to certain demands they had made. Further negotiations failed to resolve the dispute and the City issued an ultimatum and advised the employees that they were on strike and that this was unprotected because they provided essential services. The employees were also instructed to return to work immediately and to respond to emergency calls and duties.
The City applied to the Labour Court for an order declaring that DEMAWUSA's members were participating in an unprotected strike and interdicting them from participating in the strike. An interim order to this effect was granted. On the return date, DEMAWUSA opposed an application by the City to have the interim order confirmed.
Definition of a strike
In determining whether a final relief was warranted, the court conducted an assessment to establish whether there was a clear right justifying the granting of a final relief. The only real issue in dispute was whether the DEMAWUSA members were on strike. It was common cause that, if the members were found to be participating in a strike, their strike would be unprotected because they were engaged in the provision of essential services. Accordingly, the City would be entitled to the final relief.
In considering this issue, the court referred to the definition of a "strike" contained in the LRA. The court also referred to the analysis of this definition in the Constitutional Court judgment in Transport and Allied Workers Union of SA obo Ngedle and others v Unitrans Fuel and Chemical Co (Pty) Ltd. The Constitutional Court accepted that the definition had four elements. These are:
- a partial or complete concerted refusal to work or the retardation or obstruction of work,
- by persons who are or have been employed by the same employers or by different employers,
- for the purpose of remedying a grievance or resolving a dispute,
- in respect of a matter of mutual interest between employer and employee.
DEMAWUSA's argument
DEMAWUSA contended that its members were not obliged to render services and that, in the absence of any obligation to work, there could be no strike. It had two main arguments in this regard. The first was that DEMAWUSA's members' refusal to work was because the instructions to work issued by the City contravened applicable regulatory measures. Its members were entitled to refuse to carry out duties that would amount to a contravention of those measures. This argument was based on a contention that the City was not providing supervision for the basic ambulance attendants that manned the ambulances, that an independent practitioner had to be physically present, and that this was not the case. The second was that its members feared for their safety. DEMAWUSA contended that the City was not providing its members with security when they attended to their duties.
Labour Court ruling
The Labour Court rejected both these arguments. As far as the first argument was concerned, it was not in dispute that DEMAWUSA's members' refusal to work impacted on their contractual duties and that the obligation to respond to call-outs was at the core of their employment contracts. It then applied the principle established in the National Union of Mineworkers obo employees v Commission for Conciliation, Mediation and Arbitration & others that:
" ... where the work forms part of employees' contractual duties, a refusal to perform it will fall within the definition of a 'strike' even if the refusal is a response to what is contended to be unlawful conduct (in the form of a breach of contract) by the employer".
The members' refusal to work fell within the definition of a strike. The other elements of the definition of a strike were also present. On their own version, the members' refusal to perform their duties was causally linked to the grievance lodged mid-2016 and the refusal to work was in pursuit of this grievance. The actions of the members were also concerted. Because the DEMAWUSA members were engaged in the provision of an essential service, the strike was unprotected. The interim order was confirmed.
The second argument was rejected on the basis that steps had been taken to ensure the safety of employees. None of the other unions that represented the applicant's employees, nor the non-unionised employees, had contested the adequacy of these arrangements.
Comment
This decision is of some relevance to the Coronavirus (COVID-19) pandemic, in the situation where employees who are permitted to work in terms of the Regulations published in terms of the Disaster Management Act, 2002 ("DMA") refuse to do so. The fact that an employer is failing to comply with regulations or directives issued in terms of the DMA and is in breach of contract will not necessarily mean that a refusal to work in reaction to such employer conduct cannot constitute a strike. This will primarily depend on whether the other elements of the definition of a strike are present. If the conduct does constitute a strike it can possibly be interdicted if the legal requirements for a protected strike have not been met.
Another point is what the legal position will be if the employer has complied with all legal regulations relating to health and safety, and employees nevertheless refuse to work because they fear for their safety? If they simply refuse to work for this reason, make no demand and express no grievance, all the elements of a strike as defined will not be met. Whether the employees' actions are justified will depend on the facts of the case and the safety of the workplace.
Reviewed by Peter le Roux, an Executive Consultant in ENSafrica's Employment department.
Originally published 8 June 2020
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