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Strikes

Strikes

Factors Affecting the Strike Temperature
Like last year, South Africa is likely to battle to avert or resolve labour-related strikes. For a few successive years we have seen an increase in violence accompanying in wage related strikes. This trend culminated in the Marikana deaths. The Western Cape farm workers strike followed thereafter and was almost equally violent. Clearly there is an increase in the violent nature of these strikes. The same trend is also observable with regards to service delivery protests.

Mercury Rising
These costs include the petrol price, transport costs, the increasing food prices and electricity prices. The possibility of e-tolling in Gauteng will also be at the back of the minds of the employees this year as they decide on the increase demands. For a most of Cosatu affiliated unions, the continued existence of labour brokers is likely to also will form part of their wage demands.

Unfortunately, the same pressures are likely to be weighing heavily in the minds of the employers as they come under pressure to contain costs. The fluctuating Rand value and the resultant input costs increases also are affecting employers. The temperature is, as a result, quite high on both sides.

The Double Squeeze
Many employees are already struggling to meet their day-to-day expenses; any further cost increases will simply be unaffordable.

On the employer’s side, things are no better. Input costs continue to rise as a result increases in electricity, petrol and other related costs like transport. Employers also have to keep up high electricity and petrol increases, transport costs and labour costs plus costs associated with electricity spikes.

Both sides are being squeezed. Employers need to settle increases as low as possible and some might not even be able to afford increases. Employees on the other hand, demand the highest possible increases.

Inevitably it is more difficult to settle wage disputes.

The Man…or Woman on the Street
Whilst there has been a lot of focus on what the impact of the rising costs on employers, the same cannot be said for ordinary people or employees. The sad reality is that a lot of shop floor employees have been earning just enough to survive. The continuing electricity, transport and food increases have really put a strain on their budgets.

This results in a lot of anger that manifests itself during strikes. It must be made clear that violence and violent behaviour cannot, under any circumstances be condoned, but in order to deal with the challenge effectively, we need to understand and diagnose the cause properly.

THE WAY FOWARD

Employers
Employers need to be sensitive to employee needs and circumstances. Where they can, employee benefits must be expanded in order to alleviate the pressure on the employee’s direct income. These benefits would include medical care, subsidised food at canteens and where possible, provision of subsidised transport for night work.

Employers need to start linking pay to performance. Employers cannot be constantly expected to give salary increases with no parallel increase in production. This is one dimension that is conspicuous by its absence in South African labour relations.

Wages and salaries have been increasing in South Africa but productivity standards have been dropping. This is unsustainable, as can be seen in the increase in imported goods from the East. Manufacturing is suffering!

When increases are made, employers must find ways of linking this to productivity in the minds of employees. This will help ensure that companies get what is their money’s worth from their employees. In instances where there is violence and destruction of property during strikes, companies must sue the union for damages. The courts have indicated it is perfectly legal to do so but it will of course incur the wrath of union leaders. So be it. They need to control their members.

It also does not assist the negotiations process when the MD of the organisation is granted a big bonus, shows up at work in a new range-topping sports car, then pleads poverty when requested to give employees increases.

The Government
Government’s role in labour disputes should be to remain neutral and provide leadership to both parties, labour and business. Unfortunately, Government has been found wanting in this role. The e-tolling decision, the successive electricity increases and the Government induced levies on petrol are all the factors that the Government controls. It needs to do its bit to contain costs.

Rather than introducing e-tolling, the government should be looking at how it can contain maladministration, fruitless and wasteful expenditure, corruption etc. in order to ensure that the money it collects is spent more wisely and efficiently. This would negate or at least mitigate the need for further increases in Government administered commodity prices. The Government also needs to denounce labour violence in the strongest possible terms and come down hard on perpetrators who are found guilty of violence.

Law Enforcement Agencies
What has also been concerning is the role of various law enforcement agencies in dealing with strikers. The first thing that one notices during strikes is the number of people carrying various weapons. This should not be allowed. The carrying of knobkerries, sticks, pangas etc. should banned. The police must also act when strikers destroy property and assault people and non-strikers.

What do you do when an employee refuses an instruction?
Common law requires employees to carry out the instructions of their employer and in addition to that, most employment contracts include a clause to the effect that:

“The Employee shall notwithstanding the above job title, be obliged to carry out any lawful instruction given to him / her by the Employer even though this may not be related to his / her position.”

In other words, as long as the instruction is lawful, the employee is contractually bound to carry it out. Failure to do so constitutes insubordination and can result in summary dismissal (i.e. dismissal without notice or notice pay).

It might look straightforward but unfortunately these situations often go awry for employers, especially when managers become angry.

Calling the boss an idiot found not to be grounds for dismissal
For example, a number of years ago in a well reported case, a General Manager was dismissed for insubordination after he had called his new Managing Director an idiot. It transpired that the Managing Director had wanted to retrench employees immediately, without following the required LRA procedure.

The GM had refused to carry out the instruction, calling his boss ‘an idiot’ in a heated discussion. This ultimately led to the GM being dismissed for insubordination and him referring his case to the Industrial Court. The Court found the dismissal to have been unfair and awarded compensation. In its judgement, the Court inferred that the MD’s conduct had indeed been idiotic because the he had expected the GM to carry out an unlawful instruction.

Similarly, a manager may not expect an employee to carry out a task which would expose him or her to danger not normally connected with the performance of his / her duties or which could result in the employee facing disciplinary or criminal charges.

The difference between insubordination and insolence
The Oxford dictionary defines insubordinate as ‘disobedient; rebellious’. Insubordination must be distinguished from insolence which is defined as ‘offensively contemptuous or arrogant; insulting’. While insolence may well result in dismissal, it is not considered as serious as insubordination. This is because insubordination goes to the root of the employment relationship. The employer pays the employee to carry out instructions. If the employee refuses the whole employment relationship breaks down.

‘It’s not my job’ is no excuse but look for the underlying cause
Refusals to carry out instructions because ‘it’s not my job’ usually stem from employees being misinformed or misled by others, especially in the lead up to strikes. Employees may also refuse to carry out instructions if they feel that they are being singled out unfairly or are being overloaded with work. There is usually a lot of underlying emotion involved in these situations and it is advisable therefore to treat these situations sensitively.

Employee’s point of view
From an employee’s point of view, if you feel aggrieved by an instruction, rather than put yourself at risk, comply with the instruction as best you can and then lodge a grievance. DO NOT REFUSE to carry out the instruction, no matter how right you think you are, as it could cost you your job.

From the employer’s or manager’s point of view, these are really ‘no-win’ situations so they need to be handled carefully.

GUIDELINES FOR HANDLING A REFUSAL TO CARRY OUT AN INSTRUCTION:

1. Explain why the task is necessary and give the employee the instruction in a clear and unambiguous manner e.g. “I am giving you a lawful instruction to ……………….”
2. If the employee refuses, ask why? Listen to understand – not to respond.
3. If there is no good reason for the refusal, explain that refusal to carry out the instruction is a serious breach of the employee’s contract of employment.
4. Explain the consequences of continuing to refuse to obey the instruction: e.g. “Your refusal / failure to obey this instruction constitutes a serious disciplinary offence and will result in a disciplinary enquiry which COULD lead to your dismissal.”
5. Give the employee a deadline by which to carry out the instruction. This should be reasonable and allow a cooling off period for the employee to reconsider his / her actions.
6. Put the instruction in writing and ask the employee to sign acknowledgement of receipt. If the employee refuses to sign, call a witness, read out the instruction and ask the witness to sign.
7. If the employee has not carried out the instruction by the set time limit, suspend the employee from work and tell him / her to report to you the following morning. This will allow a further ‘cooling off period’ for the employee to consider the consequences of failing to carry out the instruction.>
8. The next day establish whether the employee has changed their mind. If so, issue the employee with a written warning (which may be a final warning depending on the circumstances). Allow the employee to go back to work but make sure that the employee actually carries out the instruction.
9. If the employee still refuses to carry out the instruction, issue the employee with a notice of a disciplinary enquiry and suspend the employee from work. The charge will be Insubordination – failing to carry out a lawful instruction in that you ……. (Details of the instruction). The suspension must be on full pay and the employee must be given at least 24 hours’ notice of the enquiry (48 hours is preferable).

If a process like this is followed and the instruction is lawful and reasonable, the employee will have only himself to blame for his dismissal. In the event of the employee contesting the dismissal, it can be easily justified by the employer.