Brief Summary

Labour Law — Strike Action — Unprotected Strike — City of Johannesburg sought a final interdict against the Democratic Municipal and Allied Workers Union and its members, alleging that their refusal to respond to emergency calls constituted an unprotected strike. The respondents contended that their actions were in response to unlawful acts by the employer. The court held that the employees' refusal to work amounted to a strike as defined in the Labour Relations Act, and since they were engaged in essential services, the strike was unprotected. The court granted the interdict, confirming the rule nisi issued earlier.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were brought in the Labour Court on the return date of a rule nisi previously issued on an urgent basis. The applicant sought confirmation of interim interdictory relief granted on 26 July 2019, which had declared the respondents’ conduct to constitute unprotected strike action and restrained its continuation pending the final determination on the return date.

The applicant was the City of Johannesburg. The first respondent was the Democratic Municipal and Allied Workers Union of SA (DMAWU), and the second and further respondents were members of the first respondent employed by the City in its emergency services. The central dispute concerned the employees’ refusal to respond to emergency medical call-outs and whether that conduct amounted to a strike as defined in the Labour Relations Act 66 of 1995 (LRA).

Procedurally, the matter reached the return date after the respondents attempted to anticipate the rule nisi. They delivered an extensive affidavit (approximately 900 pages) and sought to have the matter heard earlier than the arranged return date. The applicant filed a replying affidavit, and the matter ultimately proceeded on the original return date. The court later addressed aspects of this conduct in the context of costs.

The general subject-matter of the dispute was whether the employees’ concerted refusal to attend to call-outs constituted a strike regulated by the LRA; and, if so, whether it was unprotected (including because the employees were engaged in an essential service) such that a final interdict should be granted confirming the rule nisi.

2. Material Facts

It was common cause that the individual respondents were employed by the City in medical emergency services, stationed at various fire stations, and that their core functions included ambulance and fire-fighting duties provided to members of the public in Johannesburg.

The factual background included an earlier dispute, referred by the union in October 2016 to the bargaining council, alleging non-compliance by the City with regulatory requirements relating to emergency incident responses. The desired outcome recorded in that referral was that no ambulance should respond to an emergency incident with only a BAA crew, without either AEA or ALS. That dispute was withdrawn in July 2017 under a settlement agreement in which the parties undertook to negotiate further locally with the assistance of an external independent third party.

In mid-July 2019, the City became aware of increased volumes at the emergency communication centre (the call centre receiving emergency calls). The City attributed this increase to the fact that certain fire stations were refusing to respond to emergency ambulance call-outs. Where a station refused to dispatch an ambulance, the call centre had to contact other stations to secure a dispatch, thereby increasing workload and delaying responses to other emergencies. Stations identified as affected included Jabulani, Central, Ivory Park, and Rosebank.

Employees at the affected stations confirmed that they were not attending to calls because they required the City to meet certain demands. Although some employees returned to work after discussion, the City formed the view by 15 July 2019 that refusals persisted. Further discussions did not resolve the matter, and by 23 July 2019 the number of stations not responding was increasing. The City issued an ultimatum, informing the employees that they were on strike, that the strike was unprotected, and that as essential services employees they could not strike, and directing them to return to work and respond to duties. At the time the interim relief was sought, only 13 of approximately 80 ambulances were operationally available to respond to calls.

The court identified that the material facts giving rise to the proceedings were not disputed, and that the case ultimately turned not on contested factual questions about events but on the classification of the employees’ conduct under the LRA.

Two themes were raised by the respondents as justification for refusing to perform call-outs, and the City disputed the substance of these contentions. First, the respondents contended that instructions to work would contravene applicable regulatory measures (particularly relating to staffing and supervision of BAAs), such that they were entitled to refuse to perform duties in those circumstances. Secondly, they contended that it was unsafe to perform their duties due to alleged inadequacies in security arrangements, and that they were therefore entitled to refuse to work. The City disputed both the asserted regulatory interpretation and the alleged inadequacy of security measures, and pointed to arrangements involving identification of high-risk areas and cooperation with SAPS and JMPD.

3. Legal Issues

The central legal question was whether the employees’ concerted refusal to respond to emergency call-outs constituted a “strike” within the meaning of section 213 of the LRA. This was decisive because the parties accepted that, if the conduct was a strike, it was unprotected, and final interdictory relief should follow; whereas if the conduct was not a strike, the City accepted that the rule nisi should be discharged.

Flowing from this, the court had to determine whether the City had established the requirements for a final interdict, specifically whether it had shown a clear right to the relief sought. The court indicated that the matter effectively turned on the “clear right” component, which depended on whether the impugned conduct fell within the statutory definition of a strike.

The dispute therefore concerned primarily the application of law to fact: applying the statutory definition of strike and the relevant jurisprudence to largely common-cause conduct (a concerted refusal to perform call-outs), and deciding whether asserted justifications (unlawful instructions or safety concerns) altered the statutory characterisation.

4. Court’s Reasoning

The court approached the matter on the basis that confirmation of the rule nisi required the City to satisfy the requirements for a final interdict, namely a clear right, an injury committed or reasonably apprehended, and the absence of a similar ordinary remedy. Referring to authority on final interdicts in this context, the court held that the case turned on the existence of a clear right, which depended on whether there was a strike as contemplated by the LRA.

The court set out the statutory definition of “strike” in section 213 of the LRA and adopted the Constitutional Court’s articulation of the four elements of a strike: a concerted refusal to work (or retardation/obstruction), by employees, for the purpose of remedying a grievance or resolving a dispute, concerning a matter of mutual interest. The court treated these elements as the framework for the legal classification exercise.

A substantial part of the court’s analysis addressed the respondents’ contention that their refusal did not amount to a strike because they were entitled to refuse unlawful instructions or to stop work for safety reasons. The court reviewed earlier approaches under the 1956 LRA (including treatment of “work” as contractually owed work) and contrasted this with the current LRA definition, which expressly includes overtime work (whether voluntary or compulsory) in the concept of “work”. The court then considered case law dealing with refusals to work where employees assert the employer has acted unlawfully or in breach of contract, and the degree to which contractual obligation affects the strike inquiry.

In applying the jurisprudence, the court relied particularly on the approach in National Union of Mineworkers obo employees v CCMA, emphasising that the key issue is whether the refusal to work, for whatever reason, is undertaken for the purpose of remedying a grievance, and therefore falls within the scope of the LRA’s regulation of strikes. The court also considered G4S Cash Solutions SA (Pty) Ltd v Motor Transport Workers Union of SA, treating it as authority that a refusal will not constitute a strike where the employer has no contractual right to demand performance of the work in question (there, Sunday work), such that the employees are not refusing a duty imposed by their contracts.

On the facts, the court found it significant—and undisputed—that the duties the employees refused to perform (responding to emergency call-outs) were contractual duties lying at the core of their employment. In the court’s view, this placed the matter within the principle that where employees refuse to perform contractually required work, and the refusal is concerted and directed at remedying a grievance, the conduct meets the statutory definition of a strike even if the refusal is motivated by alleged unlawful conduct by the employer.

The court further held that, on the respondents’ own version, the refusal was causally linked to a grievance traced back to the earlier dispute raised from 2016 concerning ambulance staffing and supervision requirements. The court treated that history as demonstrating that the refusal to work was in pursuit of remedying the same grievance, thereby meeting the purpose element of the section 213 definition. It was also not disputed that the refusal was concerted.

Regarding the safety justification, the court did not accept that the asserted fear for safety took the conduct outside the strike definition on the facts before it. It noted that an arrangement existed identifying high-risk areas and times, involving SAPS and JMPD collaboration, and put in place in consultation with employees. The court linked this to the interim order’s paragraph requiring the City to continue providing security escorts to identified high-risk areas, and indicated that this part of the interim order would remain confirmed along with the rest.

Having found that all elements of the statutory definition of a strike were present, the court concluded that the refusal to respond to call-outs constituted a strike. It then accepted as undisputed that the strike was unprotected, including because the employees were engaged in an essential service and because the procedural requirements for a protected strike had not been met. On that basis, the City had established the clear right required for final interdictory relief, and the rule nisi stood to be confirmed.

The court expressly stated that, given its basis for decision, it was unnecessary to determine the merits of the substantive underlying dispute about staffing and supervision or to decide whether the opposition was contrived or motivated by other demands (such as removal of managers). Those issues were treated as not necessary to the classification of the refusal as a strike on the respondents’ own version.

On costs, the court applied section 162 of the LRA, emphasising the discretion to order costs according to law and fairness. It considered the respondents’ litigation conduct (including the very lengthy affidavit and the short-notice anticipation application), the City’s success in both interim and final stages, the absence of a collective bargaining relationship (including that the union was not a recognised union), and the seriousness of essential services employees withholding services with consequences for the public. The court declined to order punitive costs and limited counsel’s costs to those of one counsel.

5. Outcome and Relief

The court confirmed the rule nisi issued on 26 July 2019, thereby finally declaring the strike action by the employees to be unprotected and unlawful as contemplated in sections 64, 65, and 68 of the LRA, and interdicting and restraining the union from encouraging the action and the employees from participating in it. The provision requiring the City to continue to provide security escorts to identified high-risk areas remained in place as part of the confirmed order.

The court ordered that the first respondent pay the costs of the proceedings, allowing the costs of one counsel. A punitive costs order was refused.

Cases Cited

Polyoak (Pty) Ltd v Chemical Workers Industrial Union & others (1999) 20 ILJ 329 (LC).

Transport and Allied Workers Union of SA obo Ngedle and others v Unitrans Fuel and Chemical Co (PTY) Ltd 2016 (11) BCLR 1440 (CC).

SA Breweries Ltd v FAWU (1989) 10 ILJ 844.

National Union of Mineworkers obo employees v Commission for Conciliation, Mediation and Arbitration & others [2012] BLLR 22 (LAC).

Nkutha & others v Fuel Gas Installations (Pty) Ltd (as cited in the judgment; no further citation details appear in the text provided).

G4S Cash Solutions SA (Pty) Ltd v Motor Transport Workers union of SA & others (2016) 37 ILJ 1832 (LAC).

Legislation Cited

Labour Relations Act 66 of 1995, sections 64, 65, 68, 162, and 213.

Rules of Court Cited

No rules of court were cited in the text provided.

Held

The court held that the employees’ concerted refusal to respond to emergency medical call-outs constituted a strike as defined in section 213 of the LRA, because it was a concerted refusal to perform contractual duties for the purpose of remedying a grievance concerning a matter of mutual interest.

The court further held that, once characterised as a strike, the action was unprotected, including because the employees were engaged in an essential service and the statutory procedural requirements for protected strike action had not been met. The City therefore established the requirements for final interdictory relief, and the rule nisi was confirmed.

LEGAL PRINCIPLES

A party seeking confirmation of interim interdictory relief on a return date must satisfy the requirements for a final interdict, including establishing a clear right. In strike interdict matters, the existence of a clear right may depend centrally on whether the impugned conduct constitutes a strike within the meaning of the LRA.

For purposes of section 213 of the LRA, a strike comprises four elements: a partial or complete concerted refusal to work (or retardation/obstruction of work), by employees, for the purpose of remedying a grievance or resolving a dispute, concerning a matter of mutual interest. The classification is a statutory one, requiring assessment of whether these elements are present on the facts.

A concerted refusal by employees to perform work that is contractually required, when undertaken for the purpose of remedying a grievance, may constitute a strike even where employees contend that the refusal is justified by alleged unlawful conduct or breach by the employer. The statutory inquiry focuses on whether the conduct meets the definition, not on whether employees may have alternative contractual remedies.

A refusal to perform work will not fall within the strike definition where the employer has no contractual entitlement to demand performance of that work, such that the refusal is not a refusal to perform a duty imposed by the contract, assessed in light of the terms of employment and the established expectations of work.

Employees engaged in an essential service are not permitted to strike in the ordinary manner contemplated by the LRA, and strike action by such employees is unprotected. Where essential services employees engage in unprotected strike action, interdictory relief may be granted to restrain it.

In making costs orders under section 162 of the LRA, the Labour Court exercises a discretion informed by law and fairness, including the parties’ conduct in litigation, the existence or absence of collective bargaining relationships, and the broader context and consequences of the dispute.

City of Johannesburg v Democratic Municipal and Allied Workers Union of SA and Others (J1164/2019) [2019] ZALCJHB 370; [2020] 6 BLLR 565 (LC); (2020) 41 ILJ 1959 (LC) (14 November 2019)