Automated Summary
Key Facts
The Department of Health: Gauteng Provincial Government (Applicant) sought an interdict against an unprotected strike by forensic officers (Third to Further Respondents) employed by the same department. The strike, which began on 01 December 2016, involved employees refusing to perform dissection duties, causing delays in processing deceased persons for burial. The Labour Court declared the strike unprotected under Section 68 of the Labour Relations Act (LRA) for non-compliance with section 64 procedures. The court emphasized ethical concerns about employees' actions infringing on the constitutional rights of bereaved families and the dignity of the deceased, referencing the importance of Ubuntu in South African law. The interdict was granted on 03 December 2016, and the case was heard on 05 December 2016.
Issues
- A second issue was whether the strike action by forensic officers, which began on 1 December 2016, met the procedural requirements for a protected strike under the LRA. The court found no compliance with section 64, rendering the strike unprotected and issuing an interdict to stop further participation.
- The primary issue was determining the constitutional balance between the employees' right to strike (section 23) and the rights of deceased persons and their families to be treated with dignity (section 10). The court emphasized that this balance must align with the Ubuntu philosophy enshrined in the Constitution.
Holdings
- The strike action by the Third to Further Respondents, which commenced on 01 December 2016, is declared to be an unprotected strike as contemplated in Section 68 of the Labour Relations Act 66 of 1995.
- The Applicant's non-compliance with the Rules relating to service and time periods are condoned, and the application is dealt with as one of urgency in terms of the Rules of this Court.
- The Third to Further Respondents are interdicted and restrained from any further participation in the said strike.
- There is no order as to costs.
- Copies of this judgment are to be delivered at the offices of the National Minister of Health and the MEC for Health, Gauteng Province, for appropriate action to be taken against any of the parties involved in this application where it is deemed necessary.
Remedies
- The Third to Further Respondents are interdicted and restrained from any further participation in the said strike.
- Copies of this judgment are to be delivered at the offices of the National Minister of Health and the MEC for Health, Gauteng Province, for appropriate action to be taken against any parties involved.
- There is no order as to costs.
- The strike action by the Third to Further Respondents, which commenced on 01 December 2016, is declared to be an unprotected strike as contemplated in Section 68 of the Labour Relations Act 66 of 1995.
- The Applicant's non-compliance with the Rules relating to service and time periods are condoned, and the application is dealt with as one of urgency in terms of the Court's Rules.
Legal Principles
The court applied the Labour Relations Act (LRA) to determine that the strike action by forensic officers was unprotected, as it failed to comply with the procedural requirements under section 64 of the LRA. The judgment emphasized the constitutional rights to human dignity (section 10) and the right to strike (section 23), balancing these against the ethical obligations of employees and employers under the principle of Ubuntu. The interdict was granted based on the strike's impact on deceased persons' dignity and bereaved families.
Cited Statute
- Labour Relations Act 66 of 1995
- Constitution of South Africa
Judge Name
Tlhotlhalemaje J
Passage Text
- [10] The strike action and its consequences in this case are nowhere near being ordinary, and everything about this strike points to how as a society, we have lost our sense of Ubuntu towards the suffering and pain of our fellow beings, especially those caught in a moment of grief and bereavement.
- [1] It is not common for this court to have to address ethical questions within the context of determining legal issues. The facts of this case, raises questions surrounding society's obligation to create a balance between two competing constitutional rights. These are the employees' right to strike as contemplated in section 23 of the Constitution, and ordinary citizens' rights to human dignity.i.e., to be treated with dignity and respect as contemplated in section 10 of the Constitution. For the purposes of answering this question, the right to be treated with dignity and respect will be extended to deceased persons who are yet to be buried, and their bereaved families.
- [16] All the parties involved in this application are implored to take a minute of their valuable time to reflect on these chain events... These parties must make a concerted effort to come up with answers that have been posed in this judgment, which will hopefully prevent a repeat of this national tragedy.