IN THE
INDUSTRIAL COURT OF SWAZILAND
HELD AT MBABANE
CASE NO. 419/04
In the matter
between:
SWAZILAND ELECTRICITY
BOARD………APPLICANT
And
SWAZILAND ELECTRICITY
SUPPLY
MAINTENANCE AND ALLIED
WORKERS UNION & 7
OTHERS……………RESPONDENT
CORAM
N. NKONYANE:
ACTING JUDGE
G. NDZINISA :
MEMBER
D. MANGO: MEMBER
FOR APPLICANT:
MR. M. SIBANDZE
FOR RESPONDENT:
MR. P. DUNSEITH
JUDGEMENT
14.11.2005
This matter came
before the court as an urgent application. It was argued on 09.03.05
after which the court reserved its judgement.
The matter
involved a strike action by the workers of the applicant who are
members of the 1st respondent. By the time the matter was
argued in court the strike had long ended. The delay in handing down
the judgement was therefore deliberate as there was no longer any
urgency, and the court wanted to dispose of other matters before it.
There were
preliminary objections raised on behalf of the respondents. The first
objection related to the citation of the office bearers of the union.
It was argued that their legal status did not appear from the
citation and that their citation was unnecessary and wrong. The court
was referred to HEBSTEIN AND VAN WINSEN: "THE CIVIL PRACTICE
OF THE SUPREME COURT OF SOUTH AFRICA (1997) 4th
EDITION AT PAGE 130 where it is stated that if a person is being
sued in a representative capacity, that should be made clear and it
the words in his capacity as should be added after that person's
name.
Section 11 (1) of the
Industrial Relations Act No.l of 2000, however states that, "The
court shall not be strictly bound by the rules of evidence or
procedure which apply in civil proceedings and may disregard any
technical irregularity which does not or is not likely to result in a
miscarriage of justice."
It is the
conclusion of the court that the failure to state that the 2nd-8th
respondents are cited in their representative capacities is a
technical irregularity, which does not or is not likely to result in
a miscarriage of justice. This objection is accordingly dismissed.
The second
objection related to new evidence introduced by the applicant's
replying affidavit. It was argued that the applicant was not entitled
to introduce new evidence in its replying affidavit, as the
respondents will not have a chance to respond. It was further argued
that the applicant must establish its case in its founding affidavit.
This objection will be upheld by the court, as the respondents will
be clearly prejudiced by the introduction of the new evidence in the
applicant's replying and supplementary affidavits. Accordingly
paragraphs 25-35 will be struck out together with annexure "PG2".
Further, the
parties also agreed that paragraphs 19.2 and 19.3 of the replying
affidavit be struck out.
On the merits of
the application, what remains for the court to decide is whether the
conduct of the workers amounted to a strike, and if so, was it a
protected/lawful strike.
BACKGROUND FACTS:-
On 22 December
2004 a number of the applicant's workers congregated at the
applicant's head office in Mbabane with the intention of having
audience with management. The workers were accusing the management of
failing to buy work materials on time or at all. They said this was
impacting on the delivery of services to customers. The second
grievance that they wanted to address was the announcement by
management that the workers were not going to be paid bonus.
These two issues
were discussed by the workers in their meeting held on 18 December
2004. It was in that meeting that they resolved to go to the head
office and request the acting Managing Director to give them an
explanation on those two issues.
The issue of the
bonus had earlier been referred to the Conciliation, Mediation and
Arbitration Commission (CMAC). CMAC made a ruling that the applicant
was not obliged to pay any bonus, and that the applicant had a
discretion to do so after having assessed its financial position.
After the acting
Managing Director had addressed the workers and told them that the
company was bankrupt and could not afford to pay any bonus that year
the workers did not leave the premises. The acting Managing Director
asked them to leave and come back on the following day as he said he
was going to consult with the Board. The applicant denied that it
told the workers to return on the following day. The court will
accept the applicant's version that it did not tell the workers to
return. The court will take the view that it was highly unlikely that
the applicant would encourage the workers to unlawfully abandon their
work.
On the following
day the workers converged again. The union executive members were on
that day served with the urgent application. The workers thereafter
dispersed as the executive had to attend court at 2.30 p.m.
APPLICANT'S CASE-
It was argued on
behalf of the applicant that the workers were engaged in a strike
action, and that such strike was unlawful. It was argued that the
strike was also unlawful because the workers were employees of an
essential service provider and therefore prohibited from engaging in
a strike action.
RESPONDENTS' CASE:-
On behalf of the
respondents it was argued that the workers were not on strike. It was
argued that the workers were only reacting to the conduct of the
applicant of failing to buy material. It was argued that the workers
conduct could, at the least, amount to a breach of contract. Mr.
Dunseith argued that in order for a work stoppage to amount to a
strike, it must be shown that the workers did not intend to resume
work until their demand was met. He pointed out that on the
applicant's papers there was no allegation or evidence of persistence
on the part of the workers.
The court was referred to
the cases of SMALL AND OTHERS V. NOELLA CREATIONS (1986), ICD (1)
264; AND MEDIA WORKERS ASSOCIATION OF S.A. AND OTHERS V. FACTS
INVESTORS GUIDE
AND ANOTHER
(1985), ICD (1) 210 as authority for the proposition that the
refusal to work must be shown to be intended to persist until the
demand is met.
THE LEGAL ISSUES:-
The Industrial
Relations Act defines a strike as;
A complete or
partial stoppage of work or slow down of work carried out in concert
by two or more employees or any other concerted action on their part
designed to restrict their output of work against their employer, if
such action is done with a view to Mucins compliance with any demand
or with a view to inducing the abandonment or modification of and
demand concerned with the employer — employee relationship "
(my underlining).
From this
definition one can extract the following criteria if a work stoppage
is to be deemed a strike; one, there must be a stoppage of work or
slow down of work; two, by two or more employees; three, done with a
view to induce compliance with a demand; four, the demand must be a
matter of mutual interest between the employer and employee.
The cases to
which the court was referred to were South African authorities. The
courts in those cases were interpreting the definition of strike in
the Labour Relations Act No.28 of 1956, which is not worded in the
same manner as the local Act.
It seems to us
that the important requirement for a work stoppage to be deemed a
strike, is that there must be a demand. The workers must have engaged
in the work stoppage with the purpose of persuading and not forcing,
the employer to comply with their demand.
It is important
to take into account that an employer also has the right to 'lock
out' his employees. This means that an employee cannot force an
employer to agree to his demand. The employer has the ultimate
sanction to shut down the plant, as it is his property and the
employee has a corresponding sanction to refuse to work.
The court will
therefore come to the conclusion that it is not a requirement in the
local Act that the refusal must be shown to be intended to persist
until the demand is met. The tenor of the definition of a strike in
the local Act is that the work stoppage must be done with a view to
persuade the employer to comply with the demand.
JOHN GROGAN:
"WORKPLACE LAW" (2005) 8th EDITION AT
PAGES 382-383 points out that "the duration or extent of the
stoppage is irrelevant; Partial strikes such as work-to-rules,
go-slows, and 'grasshopper' (intermittent) stoppages also amount to
strikes." At page 385 the author states "even a demand that
management attend a meeting is sufficient."
The evidence
before the court revealed that the union wrote a letter to the acting
Managing Director "alerting him that he was required to address
workers at Head office on the following day." (Paragraph 8.4 of
the answering affidavit). Clearly that was a demand on the part of
the workers, and the grievance that was in existence was the
non-payment of the bonus pay to the workers.
The workers held
a meeting and resolved to go and assemble at the applicant's head
office. From the evidence before court it is clear that their
intention was to persuade the applicant's Board to reconsider its
decision concerning the bonus pay.
It was not in
dispute that the applicant company was an essential service provider.
In terms of section 91 of the Industrial Relations Act, an employee
of such an establishment is prohibited from taking a strike action.
Taking into
account all the evidence before the court the court will come to the
conclusion that the conduct of the workers constituted a strike
action and that the strike action was unlawful and that is the
judgement that the court makes.
No order for
costs is made.
The members
agree.
N. NKONYANE
ACTING
JUDGE-INDUSTRIAL COURT
