Workers dismissed for carrying sticks during a strike must be reinstated, the Commission for Conciliation, Mediation and Arbitration (CCMA) ruled last week.
In February 2018, 181 workers at Luxor Paints in Boksburg went on strike over transport and housing allowances, medical aid and job security. Just over a week into the strike, on 5 March, the scene turned ugly when private security was called in to stop the strike, allegedly shooting rubber bullets at workers. One worker lost an eye.
The workers were dismissed, some of them for carrying sticks and other objects during the strike. Not all the 181 workers were present at the pickets, which Luxor deemed violent, but lost their jobs because they were considered guilty by association.
But last week the workers — who are members of the General Industrial Workers Union of South Africa (Giwusa) — won their CCMA bid when the commission ruled that their dismissal was substantively unfair. The CCMA ordered that all the workers report to duty on 1 February and must each be paid their lost salaries.
According to the order, Luxor Paints has to shell out close to R40-million in back pay by 1 February.
Luxor Paints’ representatives said some of the 111 striking workers carried sticks to intimidate, harass, and threaten security personnel at the arbitration hearing. All 111 workers associated themselves with this conduct by participating in the picket.
The other 70 workers were either accused of derivative misconduct — having knowledge of wrongdoing — or deliberately obstructing Luxor from conducting business. Giwusa argued that Luxor failed to provide evidence of any of the alleged misconduct.
Both sides brought in experts to give testimony on the significance of carrying sticks during strike action.
For the workers, Hylton White, an anthropology lecturer at the University of the Witwatersrand, said carrying sticks at a strike is not an act of violence or intimidation but a cultural display. Luxor’s expert, policing and collective violence researcher Thembinkosi Masuku, said stick carrying is “often a chilling display of fury and intimidation”.
But the CCMA’s decision ultimately came down to the video footage of the strike.
The CCMA concluded that to find that the workers were guilty by association, the evidence must prove so beyond a reasonable doubt. However, the video evidence Luxor relied on was not enough to convince the commissioner that this was the case.
The video footage also contradicted Luxor testimony by showing that the private security guards, and not the workers, incited the violence. “In the present matter it was the armed security personnel who perpetrated the violence,” the arbitration award reads.
“One cannot stop to wonder why the respondent [Luxor] felt the need to hire heavily armed security personnel from the first day the strike commenced. This is quite baffling.”