South Africa - Cape Town - 19 November 2021 - Workers from Makro, Builders and Game picketing in the parking area outside the Cape Gate Makro store in Brackenfell after Saccawu embarked on an indefinite strike against the Massmart Group. Picture: Henk Kruger/Independent Newspapers.
The South African Commercial Catering and Allied Workers' Union (Saccawu) could be liable for nearly R9.4 million in damages to Massmart Holdings after its appeal against the Labour Court judgement was dismissed.
This comes after Massmart sued Saccawu for damages of R9.38m as just and equitable compensation, under section 68(1)(b) of the Labour Relations Act (LRA), for losses the retail chain suffered after a strike turned violent.
Massmart claimed it suffered millions of rands in damages as a result of unlawful conduct and offences during the course of an indefinite protected strike action called by Saccawu in November 2021, over wages and unilateral changes to working conditions by the retail group.
The nationwide strike by Saccawu, which represents about 20 000 members at the retail giant, at times, turned violent in the vicinity of Massmart stores.
On Monday, the Labour Appeal Court dismissed Saccawu’s appeal for exception that the Labour Court lacked jurisdiction to order the payment for any loss attributable to a strike or lock-out.
The matter had initially been heard and adjudicated at the Labour Court in May 2022.
Saccawu’s national coordinator Mike Sikani told Business Report on Tuesday that the union was studying the judgment.
“As Saccawu we are still studying the judgment and we will revert,” Sikani said.
In 2022, the Labour Court had also dismissed the exception raised by Saccawu. Each party was ordered to pay its own costs.
It had found that it would be anomalous if an aggrieved employer or union was entitled to pursue a claim for compensation in the Labour Court for loss attributable to a strike or lock-out not in compliance with Chapter IV of the LRA, but not for loss attributable to conduct that constitutes a breach of the same chapter simply because the strike or lock-out was protected.
The Labour Court’s judgment in 2022 confirmed that an employer can now institute action against a trade union for compensation of loss suffered due to the union members’ conduct, which constitutes an offence or is in breach of the provision of the LRA, particularly chapter IV, which seeks to promote peaceful and lawful strikes.
The Massmart Group of companies include Mass Warehouse (Makro, Game, Makro Fruitspot); Massbuild – (Builders Warehouse, Builders Express, Builders Trade Depot, Builders Superstores); Mass Cash – (Rhino Cash and Carry, Jumbo Cash and Carry, Cambridge), and represents 229 stores nationally.
In reply to Business Report on Tuesday, Massmart said the Labour Appeal Court’s judgement was encouraging.
“We are encouraged that the Labour Appeal court has ruled in favour of Massmart regarding a number of technical issues in this matter, including court jurisdiction for damages incurred during strike action,” Massmart said in an emailed response.
At the Labour Appeal Court, Saccawu accepted that the conduct that Massmart has complained about was not constitutionally protected.
However, it contended that Massmart’s claim, and the remedy for unlawfulness, did not lie in the LRA but in the common law, to be determined by civil courts in civil proceedings.
Saccawu further contended that the LRA was not intended to remove common law causes of action or give the Labour Court exclusive jurisdiction where the common law applies.
However, in opposing the appeal, Massmart argued that unlawful conduct during a protected strike was not protected as it was not “conduct in furtherance of or support of a strike”.
Massmart argued that it would have a chilling effect on the Labour Court’s ability to control strike violence if it was not able to award compensation for losses attributable to such violence both in protected and unprotected strikes.
Ultimately, the Labour Appeal Court upheld the decision of the lower court, agreeing that the Labour Court held exclusive jurisdiction to order the payment of just and equitable compensation in the case of any unlawful conduct committed in furtherance of a strike, whether that strike was protected or unprotected.
Labour Appeal Court judge JA Savage said Saccawu’s contention that, in interdicting unlawful conduct which occurs in the context of a protected strike, the Labour Court did not source its power under section 68(1) but under section 158(1), was without merit.
“The Labour Court recognised, more than twenty years ago in Lomati Mill Barberton v Paper Printing Wood & Allied Workers Union & others, that unlawful conduct that occurs in contemplation or furtherance of a strike or lock-out which constitutes a criminal offence is unprotected,” Savage said.
“The Labour Court correctly concluded that the exception was without merit and it was submitted that the appeal must, for these reasons, fail.”
BUSINESS REPORT