Employment law update – Wielding dangerous weapons during strike action

September 1st, 2021

In Pailpac (Pty) Ltd v De Beer NO and Others [2021] 6 BLLR 570 (LAC), members of National Union of Metalworkers of South Africa, employed by Pailpac (the Company), participated in a national strike. As a result of carrying sticks, PVC rods, sjamboks and golf clubs, certain of the employees were charged with ‘brandishing and wielding weapons during a strike’. The employees were found guilty and subsequently dismissed.

The dismissed employees referred an unfair dismissal dispute to the bargaining council. The arbitrator held that the dismissals were substantively unfair on the basis that the employees were not aware of the rule against wielding weapons while on strike, which rule had not effectively been communicated to the employees. The Company’s attempt to have the award reviewed and set aside was dismissed by the Labour Court (LC). The LC held that the arbitrator’s decision that the employees could not reasonably have been expected to know of the rule fell within a band of reasonable conclusions. The Company took the LC’s judgment on appeal.

The primary issue on appeal was whether the employees knew or could reasonably have been expected to be aware of the rule against brandishing and wielding weapons during a strike. In this regard, the Company relied on two sets of rules, namely –

  • a revised Breaches of Discipline (BOD) document, which prohibits the ‘brandishing or wielding of dangerous weapons’; and
  • a picketing policy, which provides that ‘no weapons of ANY kind are to be carried or wielded by the picketers’. The revised BOD rules were placed on a notice board at the entrance of the factory and the picketing policy was affixed to walls adjacent to the access gates for the employees during the strike.

The Company accordingly argued that the employees had knowledge of these rules but that the arbitrator ignored this evidence. Further, the arbitrator had ignored material contradictions in the version of the employees regarding knowledge of the rules and the area where the rules were published, yet the LC simply rubberstamped the arbitrator’s findings. The employees argued, to the contrary, that there was no evidence that any of them had actual knowledge of the rule prohibiting the carrying of weapons and the sanction for contravening it.

Considering the facts relating to the BOD rule, the Labour Appeal Court (LAC) found that –

  • the rules were placed on a prominent notice board;
  • the employees regularly read notices posted on that particular notice board; and
  • the employees were fully aware of their obligation to read the notices posted on the board.

In the circumstances, it was probable that the employees were aware of the rule or could reasonably have been expected to be aware of the rule.

Having regard to the picketing policy, the LAC found that both the LC and the arbitrator had ignored inconsistencies in the employees’ evidence. The employees testified that security guards prevented them from approaching the walls where the picketing policy was displayed. However, they also testified that what was posted on the walls was a copy of an SMSs calling on them to return to work. If the employees were able to read the SMS, as a matter of probability, they would have been able to read the picketing policy. Thus, the employees would have been aware of the rule or could reasonably have been expected to be aware of the rule.

Insofar as the arbitrator had held that there was no positive duty on the employees to approach the wall, that is not the test. The correct test is whether, on the evidence, the employees were aware of the rule or could reasonably have been expected to be aware of the rule. The LC not only erred in endorsing the application of the wrong test, but also failed to consider the contradictory versions put forward by the employees.

Turning to the question of whether the employees were in breach of the rule, it was not in dispute that the employees had carried sticks, PVC rods, golf clubs and sjamboks. The words ‘wielding or brandishing’ included the carrying of weapons in a matter that is threatening. The visible carrying of prohibited weapons was aimed at creating a hostile and intimidating atmosphere. An employee who attempted to go to work was in fact beaten with sticks. Any reasonable employee would know that bringing a dangerous weapon to work would not be tolerated.

In the circumstances, the employees knew or could reasonably have been expected to know that the breach of the rule could result in their dismissal. The court accordingly held that the dismissals were fair and appropriate.

The appeal the review proceedings were upheld with costs.

Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.

This article was first published in De Rebus in 2021 (Sept) DR 37.

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