Strikes and misconduct
VIOLENCE AND INTIMIDATION
ASSOCIATED WITH INDUSTRIAL ACTION
By Brett Abraham , Partner and Nonjabulo Mthembu , Associate from Webber Wentzel
This article looks at whether employers can rely on the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace ( Code ) in managing strike-related misconduct and , in particular , engagements with trade unions in seeking to quell such conduct .
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Employers trying to tackle violence related to industrial action have traditionally reacted with court proceedings and disciplinary action once such action has taken place . Employers should consider taking more proactive steps , including agreeing on picketing rules incorporating the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace
Violence and unlawful conduct in the context of industrial action is a reality in South Africa . Increasingly , there appears to be nowhere for employers to turn as they seek to manage violent industrial action .
As South Africa reels from the economic and human cost of the protracted Transnet strike that ended in mid-October 2022 , we discuss whether employers can rely on the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace ( Code ) in managing strike-related misconduct and , in particular , engagements with trade unions in seeking to quell such conduct .
Various trade unions have welcomed the introduction of the Code and have expressed their commitment to its objectives . Industrial action in South Africa , however , continues to be characterised by intimidation and violence by union members . It is often instigated by trade union leadership or , at least , not actively discouraged . Support for , or apathy towards , violent and unlawful conduct by trade union members is irreconcilable
RACA Journal I May 2023
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1 . Brett Abraham , partner at Webber Wentzel . 2 . Nonjabulo Mthembu , associate at Webber Wentzel . with the stated objective of the Code to eliminate all forms of harassment in the workplace and in any activity linked to or arising out of work .
The Code , issued in terms of the Employment Equity Act ( EEA ), requires employers to take steps to prevent and eliminate harassment . It describes harassment as unwanted conduct which impairs dignity and creates a hostile or intimidating work environment for one or more employees or is calculated to , or has the effect of , inducing submission by actual or threatened adverse consequences and is related to one or more of the grounds in respect of which discrimination is prohibited .
“ When the violent conduct is or could amount to harassment , reactive steps may not go far enough , given the Code ’ s emphasis on preventing and eliminating harassment in the workplace .”
Throwing stones , carrying dangerous weapons , blocking workplace entrances , making death threats to management or members of rival trade union members and any threats to or intimidation of non-striking employees from attending to normal business operations could all fall into this category , which is wider than the Code ’ s predecessor ( that only dealt with sexual harassment ). Even strike-related conduct that does not amount to ‘ physical harassment ’ as described in the Code could still be regarded as bullying , mobbing or ‘ intimidation ’, which is described as " intentional behaviour that would cause a person of ordinary sensibilities to fear injury or harm ".
The Code does not place obligations on trade unions that are enforceable under the Code or the EEA but it does accept that trade union representatives could be the perpetrators ( or victims )
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