BOPEU challenges BURS �lockout�
Mpho Mokwape | Friday January 26, 2018 17:54
BOPEU, which is representing BURS employees that were engaged in the strike, had taken the war with the revenue services to the Court of Appeal on grounds that the lockout notice was unlawful.
BOPEU and BURS have been in a legal battle, both at the Industrial Court and High Court, due to a 2015 strike by the employees over salary negotiations fallout. The lockout notice was issued after the striking employees changed from a full protest and engaged in a conditional go-slow strike.
When arguing the matter, Advocate Sidney Pilane said the lockout notice was unlawful in the sense that it did not comply with the section of the Trade Dispute Act.
Pilane said BURS did not fulfill the requirement of the section when issuing the notice, but instead deployed new tactics to the strike.
“The judge of the below court ought to have noticed that the employer declared a new dispute by issuing a lockout notice that did not comply with the Act,” he said. He outlined that at the very least the lower court should have taken into account and questioned whether the dispute was of interest or was right when dealing with the matter.
Pilane maintained that BURS issued the notice on the basis of interest following the employee’s change of strategy of the strike.
“The employees’ change of strategy to go from a protest to a go-slow, which was conditional was solely based on a dispute of right not of interest while the lockout was merely based on interest,” Pilane argued. Further, Pilane requested the bench to allow the appeal to succeed on the basis that the lockout was unlawful as it created new disputes away from the actual issue of better pay.
Pilane said: “The employer has the right to terminate the contract if the employee does not perform accordingly as per the Employment Act. But on this matter the employer had no right to lockout as the employees were exercising their right of addressing grievances of variations of existing contracts in terms of salary”.
In response, BURS Advocate, Omphemetse Mooki said the ground advanced in the appeal was not entertained at the court a quo.
Mooki said the appellants are the ones raising the issues therefore they should be the ones giving specific averments to support that.
In that manner, Mooki responded that the appellants in dealing with the answering of the affidavit failed to address their grievances specifically, but gave a generic response.
“The appellants did not, in its founding papers, aver that we did not comply with section 39 of the Act in relation to the lockout notice. There is no evidence that we breached the Act,” he said.
Moreover, Mooki maintained that his client was entitled to address the employees’ change of tactics during the strike and that he did that by issuing a lockout notice in response.
He said this was purely on the basis that the understanding between an employer and employee was that the employee will tender services and that the employer will remunerate the employee for tendering services.
“No employee is entitled to remuneration without tendering services. The appellant has not pleaded that my client withheld remuneration to non-striking employees.”
He said his client was entitled to withhold remuneration from employees who do not tender services and the entitlement applies whether or not there is a lockout notice.
The parties will meet again in court on February 2, 2018.