Most litigation flowing from industrial action happens between workers, usually assisted by their trade unions, and their employers. Recently though, unions have also been the targeted in actions brought against them by disgruntled members who were fired or re-engaged on unfavourable terms after unlawful strikes.
A recent decision by the high court (Samwu v S Jada and Others) provides insights on how a court will apply common law principles of delict in deciding if a union should be held liable for losses suffered by members in such situations.
The case concerned an appeal against a decision of the Springs Magistrate’s Court in which members of South African Municipal Workers’ Union (Samwu) were awarded damages against the union.
In 1993 the members, employed by the Springs town council, launched unlawful strike action to protest the council’s dismissal of four shop stewards. They demanded that the dismissals be submitted to independent arbitration.
The council eventually gave in to the demand and notified the union office of this. However, the strikers were not satisfied with the council’s oral undertaking and continued their action. They were dismissed after failing to heed an ultimatum to return to work.
The members claimed they had acted on the advice of an organiser who had encouraged the strike action, saying that if he had intervened before the ultimatum expired, his intervention could have prevented their dismissal. They held the union liable for the losses they suffered as a result of their dismissal.
The high court disagreed and upheld Samwu’s appeal.
The court assumed for the purposes of the judgement that the organiser had influenced the workers to strike, but was not prepared to hold the union liable for causing the illegal strike on that account alone.
It dismissed any notion that the strikers were simply ignorant pawns of the union whose dismissal was caused by its acts or omissions.
The court held that a union does not stand in the same independent relationship to its members as a company does to its shareholders. Even if the organiser had promoted the action, the decision to strike remained that of the members.
The evidence showed they knew such action would be illegal. The court emphasised the principle that people should not be excused from the ordinary consequences of their own illegal acts because of the role of others in such actions. Merely because members relied on the organiser for advice did not make the union responsible for their decision to strike.
They also had other elected representatives in the form of shop stewards who dealt with the council and were not solely dependent on the organiser for advice. Their alleged illiteracy did not alter this.
In any case, even if the organiser had a hand in starting the strike, it was the strikers’ decision not to accept the employer’s oral agreement to their demand that led to the action continuing beyond the ultimatum.
If the union lacked sufficient resources to devote an organiser full-time to the strike it could be assumed, in the absence of contrary evidence, that members them-selves had chosen not make such resources available for whatever reason. A lack of resources was not a basis for establishing culpable negligence on the part of the union.
Unions can take some comfort from the principles established by the court which should put paid to most litigation of this kind in future.
Robert Lagrange is an advocate of the Johannesburg Bar
Labour Pains is an occasional column on labour issues coordinated by the Centre for Applied Legal Studies