Interference in domestic employment matters by the EFF: The Labour Court responds Quarter 4 2021

By ROD HARPER AND NEIL COETZER, Published in Employment Law

As an employer, could you imagine a scenario where, following a decision to dismiss an employee for serious misconduct, a political party such as the Republican or Democratic Parties of the USA or the Conservative or Labour parties of the UK, contacts the employer on behalf of the employee and demands that it be given an audience by the employer to discuss the dismissal and ignores the dispute resolution processes set out in the Labour Relations Act (the LRA)?

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You would probably answer that such a demand would be impossible, ludicrous, inappropriate, in breach of the LRA and so on. You would say that it is not the role of a political party to interfere in domestic employment matters, and that the employer should decline to discuss the issue with the political party and should not give it access to its premises.

In South Africa, some employees have complained to political parties about their problems at the workplace, and about the poor quality of service provided by certain Unions.

In response to this perceived vacuum at the workplace, and because it does not have a significant relationship with a union, the Economic Freedom Fighters party (the EFF) saw an opportunity and, on occasion, has elected to take over union functions.

The EFF accordingly set up a labour desk and sought to engage with employers. Because of fundamental flaws in the Labour Relations Act, employers have had to deal with majority and minority unions, challenges by and between competing Unions, a proliferation of unions, and now, a political party.

It appears that the EFF gave very little attention to the provisions of the Labour Relations Act in respect of its participation in the workplace, and it was inevitable that the employer would refer a complaint to the Labour Court.

Case In Point

In Brightstone Trading 3 CC t/a Gordon Road Spar v Economic Freedom Fighters and Others ILJ (2021):

  • An aggrieved employee of the Gordon Road Spar sought the EFF's assistance;
  • The EFF's local regional secretary addressed a letter to the Company setting out several demands relating to working conditions;
  • The EFF requested a meeting with management and arrogantly recorded that it would not accept any objection on the basis that it should not represent its members and the workers;
  • Members of the EFF then entered the premises and engaged in intimidation, which included threatening staff and customers and barricading the store;
  • On a second occasion, the EFF engaged in a violent protest. The Spar approached the Labour Court for an interdict prohibiting violent and unlawful conduct;
  • On two occasions, the customers fled the store and, on the second occasion, the store closed for the safety of the public and the Spar employees; Evidence was given that an EFF official indicated that its members would burn down the Spar;
  • At the hearing, the EFF attempted to deny responsibility on the basis that it had not authorised the protestors to act on its behalf;
  • The Spar relied on the concept of ostensible authority (not direct authority) to prove its case, and the Labour Court found that it had proven its case.

The Labour Court found that:

  • the EFF had to hold its members accountable when the members acted in breach of the EFF constitution;
  • the Company was entitled to expect the EFF not to become involved in employment matters, and that its employees should comply with the provisions of the LRA;
  • the EFF was interdicted from carrying out the unlawful action, and costs were awarded against the EFF.

This judgment accords with the earlier judgments in Calgan Lounge (Pty) Ltd v NUFAWUSA & Others (2019) 40 ILJ 342 (LC) and Langplaas Boerdery CC & Others v Matshini & Others (2021) 42 ILJ 1210 (LC). In those judgments, the Labour Court held explicitly that the EFF (or any other political party) had no business engaging in workplace issues.

Conclusion

Employers should not engage with political parties on domestic industrial relations issues and should refer them to the LRA, which indicates that registered Unions should deal with industrial relations issues.

Employees should be advised that political parties are not entitled to assume the functions of unions.

Where a political party attempts to "bully" an employer into dealing with it, advice should be sought. Often a strong letter sent to the political party solves the problem.

It is to be hoped that the EFF now accepts that it should not become involved in domestic industrial relations matters.

It should be remembered that some operations or part of those operations may constitute essential, minimum or maintenance services in terms of sections 71, 72 and 75 of the LRA. An advantage is that strikes are replaced by arbitrations.

Harper is a Partner and Head: Employment Law, Benefits, Industrial Relations & Discrimination and Coetzer a Partner Employment Law, Benefits, Industrial Relations & Discrimination with Cowan-Harper-Madikizela.