I’ve recently been involved on behalf of an employer who had to face an incredibly destructive, illegal and unprotected strike at the workplace.  This strike was damaging to both the business and the employees and it will take many years for both parties to recover.  Despite warning the unions insisted in pursuing this illegal action knowing full well that they did not have the legal permission for the strike to continue.  The unions fully understood that the employees were being used as “cannon fodder” and that employees would be vulnerable when action for a disciplinary nature was taken against them.  The union was fully warned on all the consequences and despite this refused to back down.  Unfortunately in South Africa today a strike ballot is not necessary and unfortunately intimidation in situations of this nature is rife.  Eventually the strike action and its repercussions was adjudicated upon at the Labour Court.  The labour Judge heard all the arguments from both sides and both sides were represented by senior advocates.  The judgment was clear.  The strike was both illegal, unprocedural and non functional.  The Judge ordered legal costs against the union and the union despite a very clear rational and solid judgment decided to appeal.  Again the appeal was unsuccessful and again legal costs were ordered against the union.

Now the union has said that the legal costs will cripple it because they could not afford to pay the costs and it was unfair to have got costs against them.  This despite the fact that the union was represented by senior counsel throughout the ordeal.  At no stage during the court case did the union raise the issue that it might not be able to afford legal costs and no evidence was proffered to show that they could not afford those costs.  The reckless behaviour of the union throughout these events has been absolutely gross and almost breathtaking.  This story has been repeated on many occasions in many businesses.  The story is not only destructive to our economy but is incredibly debilitating for each and every worker.  The story will be repeated many times in the future and it appears that no trade union has ever learnt from its history.

We all understand the necessity for the trade union movement and we all know how functional trade unions can be when representing employees who have been unfairly treated or downtrodden.  When the trade union movement goes back to the basics and actually represents employees we might not see these horrific judgments and will certainly start understanding that a trade union could act as some form of insurance for a worker who has been badly treated or unfairly dismissed.

MICHAEL BAGRAIM
BAGRAIMS ATTORNEYS

15 JULY 2015