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 (LRA), the Code of Good Practice: Dismissal (the Code).
The following procedure should be followed by management before dismissing employees who take part in an unprotected strike:
- Where a registered trade union has been granted organisational rights the employer should notify the trade union of its intention to take disciplinary action, which may include dismissal, against the striking employees.
- The employer should issue a clear ultimatum to the employees. An ultimatum is a demand by the employer instructing the employees to return to work and by when. It sets out what action the employer will take against the employees if the employees do not return to work.
- The employees should be given enough time to think about the ultimatum and to reply to it. They can accept the ultimatum or reject it with consequences.
- The strikers must be given a hearing prior to being dismissed. This hearing may be a discussion between the employer and the trade union, or in the absence of a trade union, with the chosen employee representatives. It may be a proper disciplinary hearing, or it may simply be a letter that is sent to the strikers inviting them to make representation on why they should not be dismissed in the circumstances. It is accepted that during a strike, a formal hearing may not always be possible, and the employer will be able to motivate why the procedure was nevertheless fair in the absence of a full disciplinary hearing.
- Caution should be exercised when deciding to dismiss a group of employees as there should be sufficient proof to suggest that the employer has correctly identified those involved.
In deciding whether or not there is a fair reason for dismissing employees who take part in an unprotected strike the Labour Court must consider:
- The seriousness of the contravention of the LRA
Here the court will look at the actions of the strikers. For example, if the employees failed to give the employer any warning or notice that they were going to strike this will be considered to be a serious contravention of the LRA.
- Whether attempts were made to comply with the LRA
Here the court will look at 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.
- Whether or not the strike was in response to the unjustified conduct by the employer
‘Unjustified conduct’ means that the employer acted unfairly or illegally in the way it treated its employees. 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 dismissal.
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.
However, all the usual rules for misconduct apply during protected strike action. Employees found to have committed acts of gross misconduct during a strike are not protected from dismissal.