Illegal strikes not always cause for dismissal

Sweden's Labour Court ruled in May 1999 on the case of three butchers who were dismissed when they, together with several other workers, refused to work with metallic aprons and caused an illegal work stoppage. The Labour Court found that the dismissals were unfair.

On 29 April 1998, three butchers employed at Skanek, a major Swedish butchery company, were dismissed. Management at the local factory in Kristianstad, in the south of Sweden, stated that the reason for the dismissals was the unlawful industrial action that had occurred at the factory that morning, which led to a two-hour cessation of production. Most of the workers on the slaughter line had refused to wear metallic protective aprons, which were issued to every worker working on the line. Three butchers were selected for dismissal, the employer assuming that they were the leaders of the "wildcat" strike. The employer argued that the industrial action must have had instigators, and that circumstantial evidence led to the conclusion that the three butchers, who were trade union representatives, had taken the initiative to strike.

The Swedish Food Workers' Union (Svenska Livsmedelsarbetareförbundet, LIVS) took the case of the three dismissals to the Labour Court (Arbetsdomstolen) claiming that the court should declare the dismissals null and void as they were unfair in law according to the Employment Protection Act (lagen om anställningsskydd, LAS). Substantial damages were claimed on behalf of each of the three men, based on their lost pay of around SEK 230,000, plus damages of SEK 500,000 for the alleged "unlawful" dismissal itself.

Warnings

Skanek and the Employers' Association of the Swedish Food Industry (Livsmedelsbranschens Arbetsgivareförbund, LAF), told the court that several warnings had earlier been given to the butchers on the line concerning their refusal to wear the appropriate protective equipment. There had been an accident with a slaughter knife in 1997. The Labour Inspectorate (Yrkesinspektionen) had subsequently ordered the company to ensure that workers had adequate protective equipment when knives were being used on the slaughter line. The Labour Inspectorate ordered that without exception all the workers should use the metallic aprons, steel gloves and protective clothing, with particular attention to ensuring that their arms were covered. However, the workers had been unwilling to comply as they claimed that the aprons were too heavy, placing a strain on their shoulders and backs.

The main legal principle of strike and lock-out actions in Sweden is that they may lawfully take place only when a collective agreement has expired without another one having been negotiated. Whenever either a trade union or an employer is contemplating taking industrial action, it must give the other party lawful notice and follow the correct legal procedures. During the currency of an agreement, all industrial action is forbidden. Individual actions are as a whole forbidden, with organisations alone being able to order action.

Swedish employee may be summarily dismissed where they have grossly neglected their obligations to their employer, according to section 18 of the LAS. In its verdict delivered on 18 May 1999 (AD 1999/66), the Labour Court concluded that the dismissal of the three butchers was unfair in law. Although as individuals they had taken part in an illegal strike, this was a joint action with other workers. Moreover, on the evidence presented to the court, it had not been shown that the three workers had been more active in the illegal action than the rest of the workers.

However, in its judgment, the court said that it regarded the workers' actions very seriously. So, when the damages were decided, the three workers received only a 10th of what they had claimed for the dismissal - SEK 50,000 each, instead of SEK 500,000. Two members of the Labour Court dissented. They said that as union representatives the three workers gave the illegal activities a false legitimacy. A union representative should never take part in an unlawful strike. In this case, according to the dissenting members of the court, the three butchers should have been given notice to quit.

Earlier practice

The Labour Court has considered the issue of the limits of illegal industrial action before. On 19 September 1980, an illegal strike was initiated by 33 concrete workers at Öjebyn, a cement works in the north of the country. Local wage negotiations following a sectoral collective agreement had just been completed. The strike continued, with a few days interruption, until 6 November 1980, when the workers were dismissed. Three trade unions brought the case to the court, claiming that the strike action was not just about wages and that the real reason was problems associated with the working environment and the allegedly insulting behaviour of management. The employer argued that a seven-week illegal strike was enough to justify dismissals

The court stated (AD 1981/10) that the embargo on illegal strikes and lock-outs was a cornerstone of Swedish labour law. However, according to the proposal for the Co-Determination Act (proposition 1975/76: 105), only "qualified" - ie very serious - illegal industrial action could justify a dismissal. As the court's verdict put it, in very extreme cases, when every possible attempt within reason had been exhausted to settle a dispute but had been shown to be ineffective, there must be one last way out. Only in such cases would dismissal be justified. In the case in question, however, discontent with the newly agreed wages was the main issue. The company had tried to find different solutions but the workers had failed to make any concessions. The court stated that the fact that the strike had lasted for such a long time was also an important factor in its judgment, which was to uphold the dismissals.

Two more cases may be used to exemplify the concept of a short unlawful strike. In a 1986 case (AD 1986/16), a plumber had been dismissed because he had refused to work. He had been ordered to move from the plumbing workshop, where he usually worked, to a metal workshop to undertake less qualified tasks. When this came to the notice of the other employees, the workers in both workshops stopped working and the plumber remained in his old workplace. After some time the other workers returned to work and in the afternoon the same day, the plumber was dismissed. The Labour Court stated in its judgment that the plumber's strike action was indeed illegal, but the action taken by the plumber concerned was not so serious - "highly qualified" - as to justify his dismissal. The strike had not lasted for a very long time. Nor had the plumber sought to provoke the illegal action to undermine trade union activities. The court therefore declared the dismissal to be invalid.

In a case dating from 1984 (AD 1984/135), a concrete worker one day stopped working a couple of hours before the official finishing time. The Labour Court stated that the worker had acted illegally and that his action could be compared with a short illegal industrial action. He was fined SEK 150.

Commentary

Normally, any serious ("highly qualified") illegal industrial action will lead to either a summary dismissal or to the less harsh alternative, a notice to quit for the workers involved. However, there may be difficulties in judging where to draw the line. In cases where there has been only short-term illegal action and where there has been joint action between several workers, or where the industrial action is not designed to undermine legal union authority, for example, the Labour Court has tended to be liberal.

The usual penalty for unlawful industrial action is damages paid to the employer, both by the union and by the workers individually. The maximum sum of SEK 200 per worker has remained unchanged since the 1980s, but now the average sum is, in practice, SEK 2,000 per worker. (Annika Berg, Arbetslivsinstitutet)

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