How to end the employment relationship in a fair manner where employees go on an unprotected strike

 

The guidelines that must be followed before dismissing employees who take part in an unprotected strike are set out in item 6 of Schedule 8 to the Labour Relations Act 66 of 1995 as amended (“LRA”), the Code of Good Practice: Dismissal (“the Code”).

A strike is unprotected if employees embark on a strike without complying with the requirements outlined in the LRA.

 

The following procedure should be followed by the employer before dismissing or disciplining employees who take part in an unprotected strike:

• Where a registered trade union has been recognised by an employer, the employer should contact the trade union as soon as possible in order to discuss the steps it plans to take.

 

• The employer should issue a clear ultimatum to the employees on strike, specifying that they must return to work together with a deadline. The ultimatum must also outline the action the employer plans to take in case of non-compliance, namely an opportunity to heard whereafter employees may be disciplined or ultimately, dismissed.

 

• Employees should be given sufficient time to consider and respond to the ultimatum. They have the option to accept it or decline it, knowing the potential consequences.

 

• The striking employees must be given an opportunity to be heard prior to being dismissed. Such an opportunity may be a formal disciplinary hearing, a discussion between the employer and the trade union, or in the absence of a trade union, with the chosen employee representatives. It may also take the form of a letter sent to the strikers inviting them to give reasons as to why they should not be dismissed or disciplined. It is accepted that during a strike, a formal hearing may not always be possible, and thus it is likely than the employer will be able show that the procedure was fair even in the absence of a full disciplinary hearing. However, it is important to provide employees with a reasonable opportunity to respond to allegations made against them.

 

• Caution should be exercised when deciding to dismiss a group of employees as there should be sufficient proof to show that the employer has correctly identified those involved.

 

In deciding whether or not there was a fair reason for dismissing employees who took part in an unprotected strike the Labour Court will consider:

 

• The seriousness of the contravention of the LRA

Here the court will look at the extent to which the strikers did not comply with the LRA. This could include failing to give the employer any warning or notice of the strike.

 

• Whether attempts were made to comply with the LRA

Here the court will consider whether or not the employees made any attempt to comply with the LRA. For example, if employees merely filled in the referral form incorrectly, the court will not consider this to be a major defect. Consideration should also be given to the circumstances surrounding the unprotected strike such as acts of violence and intimidation.

 

• Whether or not the strike was in response to the unjustified conduct by the employer

“Unjustified conduct” refers to situations in which the employer treated its employees unfairly or engaged in unlawful behaviour. This must be taken into account as a mitigating factor in favour of the employees.

 

Employees who take part in a protected strike are protected from being dismissed on the basis that they are engaging in a strike which complies with the requirements as per the LRA.

 

If an employer dismisses an employee for participating in a protected strike, such a dismissal is automatically unfair and the employee may refer the dismissal to the CCMA or a bargaining council for conciliation, followed by a referral to the Labour Court for adjudication in the event that the dispute remains unresolved.

 

Misconduct during a strike

All the usual rules relating to misconduct apply during strike action, whether the strike is protected or not. Employees found to have committed acts of gross misconduct, for example assault, intimidation, wilful damage to company property, during a strike may be dismissed provided the dismissal is procedurally and substantively fair. In incidents of group misconduct, caution mut be exercised to ensure that there is sufficient evidence against each employee before determining an appropriate sanction.