By Nikita Shaw, Senior Associate and Penjani Mseteka, Candidate Attorney
Section 5 of the Labour Relations Act prohibits discrimination against an employee for exercising any right conferred by the LRA. No person may prejudice an employee due to her participation in the lawful activities of a trade union. But when the dust has settled after strike season, can employers express gratitude to non-striking employees by paying a token of appreciation for carrying on work normally done by the striking employees? The short answer remains "probably not." For the long answer, we need to consider the recent case in National Union of Metal Workers of South Africa obo Members v Element Six Production (Pty) Ltd (JS1106/14)  ZALCJHB 35 (7 February 2017).
In July 2014, certain employees of Element Six Production (Pty) Ltd went on a protected strike. Some of the non-striking employees volunteered to take on extra duties as they were aware that the employer was under pressure due to the strike. After the strike ended, the company decided to pay what it considered to be a token of appreciation to the permanent employees who had worked for at least 10 days during the industrial action and made a positive contribution to running production during the industrial action.
The payment was challenged by the striking employees as contravening section 5 of the LRA. The striking employees alleged that it was discriminatory to pay non-striking employees a token of appreciation when all employees benefited from the increased wages resulting from the strike action. The striking employees also led evidence that they did not receive a token of appreciation despite working overtime before the strike action to ensure that the employer would be able to cope with commercial demands during the strike. On the other hand, the employer considered its criteria to be objective and rational, and that the payment did not have any effect on the effectiveness of the strike, or a detrimental effect on future strikes.
Labour Court decision
In reaching its decision, the Labour Court considered the importance of the right to strike and its Constitutional protection. It also considered the fact that employees are not obligated to strike if they do not wish to and there is no law preventing an employer from using non-striking employees to complete the work of striking employees and rewarding them for going the extra mile.
Furthermore, employees cannot be compelled by their employer to do the work of striking employees. However, the LRA is silent on whether an employer can politely ask non-striking employees to volunteer to perform such work. This practice has the effect of weakening the employees' collective bargaining efforts and undermining the industrial action.
Despite a creative legal argument regarding the onus of proof, the Court found no reason to deviate from the test and approach adopted in National Union of Mineworkers v Namakwa Sands- a Division Anglo Operations Ltd (C836/2006)  ZALC 203 and FAWU & others v Pets Products(Pty) Ltd (2000) 7 BLLR 781(LC). In line with these decisions, once it has been establish that there was discrimination against employees for exercising any right conferred in the LRA, it should be presumed that the discrimination was unfair, until the contrary is established.
In this case, the Court was satisfied that there was indeed differentiation amounting to discrimination, and the employer was not able to demonstrate that its conduct did not infringe on the rights of the striking employees or that it was otherwise fair. As such, the employer's conduct was held to be in contravention of section 5 of the LRA and the employer was prohibited from engaging in such conduct in future.
This judgment reiterates the pitfalls of tokens of appreciation to non-striking employees. Employers should steer clear of such conduct due to the impact on the striking employees' rights and the integrity of the industrial action.