In the 7 May 2015 judgement of Algoa Bus Company (Pty) Limited v Transport Action Retail And General Workers Union (Thor Targwu) and Others, the South African Labour Court in Port Elizabeth ordered Thor-Targwu to pay R1.4 million in damages for conducting an unprotected strike at the Algoa Bus Company.  The seven-day unprotected strike carried out by a number of Algoa bus drivers took place in January 2013.

The court found that the union had failed to exercise its mandate of responsibility in leading the workers.

In his judgement, Judge Lagrange stated:

“…There is no reason to doubt the reliability of the evidence relating to lost sales’ revenue and loss of government transport subsidies during the period of the strike…The evidence available also showed, on a balance of probabilities, that the union did little if anything to discourage its members from participating in the strike or to distance itself from the strike.  Broad allegations of attempts to persuade strikers to return to work were made but are so lacking in any specificity as to be of no evidentiary value at all.”

The court pointed out that by 25 January 2013, when an interdict was granted, there was no doubt that union officials were fully aware that the strike was in progress and was unprotected.  Immediately after the interdict was obtained, the Algoa Bus Company alerted the union that a damages claim for losses sustained during the strike could be made and stating that it would not necessarily only seek to having the strike declared unprotected or taking disciplinary action, but that it might also seek to recover any financial losses.

The court pointed out that the strike was not a spontaneous event that began in response to some action by the Algoa Bus Company; instead, it was in response to disciplinary action pending against certain members who were subsequently dismissed.  The court also highlighted the fact that:

No effort was taken by the union to restore peace;

The disciplinary action taken by the Algoa Bus Company against its employees was legitimate;

The strike served no collective bargaining purpose;

The Court order was obtained interdicting the strike was not adhered to; and

The interdict ought to have made it easier for the union to persuade members to end the strike, especially when it was coupled with the applicant notifying the union of its intention to claim damages.

The financial impact of the strike on the Algoa Bus Company was direct as it lost fares and subsidies over the seven day period.  There was also no alternative way to recover these losses such as giving the drivers additional hours on their return to work.  The Company’s loss amounted to approximately 2 % or more of its yearly income.

The union told the court it was in dire financial straits and could not afford to pay the damages amount ordered.  The union supplied the court with three months’ bank statements to show that they cannot afford to pay, but the court considered the monthly dues the union collects and held that the union claiming financial hard times was not a good enough reason not to award the relief to Algoa.

In our experience companies are often just relieved that a strike is over and do not take any further steps against employees and unions who have failed to comply with the Labour Relations Act 66 of 1995 when resorting to strike action.  This judgement gives companies an option to consider after it has endured unprotected strike action.  The trend amongst the unions is to:

Publicly distance themselves from the actions of their members when a strike breaks out;

Claim that any vandalism is the act of sabotage i.e.: carried out by non-union members; or

Claim the strike conduct as that of individuals, not of the union.

For these reasons we suggest clients consult us before considering the recovery of damages from trade unions and their members pursuant to an unprotected strike.