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Strike action case law: Retailcorp Brands (Proprietary) Limited v SACCAWU

by , 02 September 2013
In the Labour Bulletin on 20th August I told you about protected strikes. And with NUM starting their strikes this week, it really does seem like strike season is in full swing, I wanted to tell you about secondary strikes... But do you know what a secondary strike is? Let's look an example...

You own a small supermarket and get your bread delivered by a bakery. The drivers from the bakery are on strike over their hours of work. Your employees then go on strike to support the cause of the bakery's drivers. Your employees have no issues with their working hours with you, they're just trying to help the drivers advance their case.
So, let's look at when a secondary strike is legal...
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Three elements that make a secondary strike legal and protected
But, there are restrictions on your employees going on a secondary strike. Firstly, the primary strike, so the driver's strike, must be legal and protected. Your employees or their union must give you seven days' notice, and the secondary strike must make sense in terms of the effect it could have on the primary employer. In other words, your employees can't go on strike in support of NUM this week, and it doesn't really make sense in your line of business.
Let's look at a case of a secondary strike
In the case below, you'll see what happens when employees go on a secondary strike. The main issue is that the union didn't issue proper notice about the start of the strike.
Keep reading about the case...
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Let's have a look at a brief summary of: Retailcorp Brands (Proprietary) Limited v SACCAWU
Retailcorp owns five restaurants at Sun City. These are: Squires Loft, Fishmonger, Sun Café, Leonardo's and Little Leonardo's. 
  • On 4 December 2009, SACCAWU members working for Sun International, which operates Sun City, went on a protected strike. They were unhappy with wages and other terms and conditions of employment. 
  • On 31 December 2009, Retailcorp's Union members went on an unprotected secondary strike in support of Sun International's employees.
  • The Union sent a notice to the Manager of Squire's Loft, Sun City. This was their notice of secondary strike action. But it only sent the notice to Retailcorp's head office in Johannesburg, and not to each restaurant. 
  • It said the members of his company were going on a secondary strike on 31 December. 
  • The strike was in support of the Sun International's employees' primary strike.
Retailcorp asked the Union to retract the notice and asked Union members not to go on strike. The Union didn't. It also didn't instruct its members not to strike. 
On 28 December 2009, Retailcorp sent a letter to the Union. It said the Union's notice was for 'the Manager, Squire's Loft, Sun City'. While the notice said it was going on a secondary strike, it didn't mention the employees for any of the other restaurants. 
So, Retailcorp said only Union members at its Squire's Loft restaurant could go on the secondary strike. Not employees from the other restaurants. The Union said it wasn't going to withdraw the notice, and its members would support the strike. It still didn't say which employees from which restaurants were going to strike. 
What did the employer do?
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Read more here.
The employer tried to find out which employees would strike
Retailcorp sent another letter to the Union on the same day. They were trying to find out which employees were going on strike. It repeated it only received notification for the Squires Loft restaurant, and this wasn't proper notification for the employees from the other restaurants to go on strike.
On 30 December 2009, the Union replied 'communication is dealt with at a central point' and 'all the companies listed in your correspondences are a company dealt with as aforesaid'. The Union meant because the same holding company owns all the different restaurants, the notification was for all the restaurants.
So what did Retailcorp do?
Retailcorp told the Union that if its members from the other restaurants went on strike, it's illegal because they hadn't notified all the restaurants of the strike. It asked the Union to confirm the members wouldn't go ahead with the strike. The Union didn't reply!
Retailcorp went to the Labour Court to get an interdict against the secondary strike action . The excluded Squire's Loft, because the notification was for this restaurant.
So what happened next?
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The Court granted Retailcorp the interdict to prevent the strike
The Court ruled that the Union didn't give seven days' notice before the secondary strike to the other four restaurants. The employees went ahead with the secondary strike action at the other restaurants anyway. So this was an unprotected and illegal strike action.
The employees at the other four restaurants who went on strike were acting against the Labour Relations Act. So it was a fair reason to dismiss the employees.
What can you learn from this case? 
If you run more than one business, your employees or Union must give a separate notice of the strike for each business. They must give it to you seven days before the strike starts. If they don't and go ahead with the strike, it'll be an unprotected strike and you can take action against those employees. 
So keep your business safe. Make sure you have the A-Z Guide to Preventing and Managing Strikes. Click here now for your copy.
Until next time,

P.S. Make sure you know when your employees are unhappy before they go on strike. Conduct effective, accurate performance appraisals so you can nip any issues in the bud as they come up. You need the first Performance Review Software in South Africa!

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