Cape Town - Trenstar Limited employees have been victorious in the Constitutional Court where it was found their employer had wrongfully locked them out in response to protected strike action, and during that time used replacement labour.
The employees, members of worker’s union National Union of Metalworkers of South Africa (Numsa), embarked on protected strike action for a once-off gratuity payment during October 2020 demanding R7 500 from Trenstar.
Numsa national spokesperson, Phakamile Majola, said they welcomed the ruling.
“(We were) seeking leave to appeal against judgments of the Labour Court and the Labour Appeals Court. At the heart of the application to the Constitutional Court was that we wanted the court to set aside the judgments of these lower courts, and confirm the interpretation advanced by Numsa regarding the meaning of the section in the Labour Relations (LRA) that deals with the circumstances under which an employer who engages in a lock-out, may use the services of replacement labour in response to a strike,” said Majola.
Union general secretary, Irvin Jim said the result of the lock-out may have the effect of giving employers disproportionate and unfair power.
“NUMSA will always fight for the right to strike and it has participated in numerous court cases to defend this hard-won right and this is why this court case was important, to ensure that bosses do not abuse their power through the lock-out.”
After a month of strike action, which started on October 26 2020, with total withdrawal of labour and not reaching any decision yet, Numsa notified that they were suspending their strike action on Friday November 20 2020 - not to be construed as a withdrawal of the demand for the ex-gratia payment - and would return to work the following Monday.
However, the employer responded by notifying the union of a 48-hours’ notice that it intended locking out all Numsa members, with effect from the Monday the workers were set to return to work.
“On the merits, Numsa argues that the right of an employer to engage replacement labour ‘in response to a strike’ impacts negatively on the efficacy of strikes...An interpretation that preserves rather than distorts power dynamics should be favoured... “Trenstar’s submissions focused on the distinction between a terminated and suspended strike.
Trenstar’s lock-out notice was issued while the strike was still under way, even though the suspension of the strike had been announced.
“Factually, the lock-out was in response to the strike. The employees had only suspended their strike and could at any time have reinstituted it,” the judgment read.
Acting justice of the Constitutional Court, Owen Rogers, said: “The position in this case, therefore, is that the strike ended at 5pm on Friday 20 November 2020.
A few hours earlier, but after being notified that the strike would so end, Trenstar gave notice that it would commence a lock-out at 7am on Monday 23 November 2020.
“Trenstar in fact implemented the lock-out as notified. As from the Monday morning, the employees’ absence from work was due to a lock-out, not a strike.
Trenstar did not reject the tender of services as unacceptable or incomplete. Instead, it excluded the employees from the workplace in terms of a lock-out despite their tender of services,” said Justice Rogers.
In his order granting the appeal, Justice Rogers, said: “It is declared that (the employer) was not entitled to use replacement labour for the purpose of performing the work of any employees who were locked out by virtue of the lock-out declared by the respondent on 20 November 2020.”
Trenstar did not responded to enquiries by deadline.
Cape Times