THE ALMIGHTY STRIKE!

In South Africa, many Employers are far more familiar with the concept of industrial action or so called “strikes” then what they would like to be and often Employers find themselves agreeing to demands made by the workforce, that the business is not necessarily in a position to commit to, simply because they fear the possibility of industrial action or the workforce has threatened to embark on a strike if their demands are not met.

That being said, whilst Section 23 of the Constitution of the Republic of South Africa 108 of 1996 affords all employees the right to strike. It is important to understand that this right must be exercised in line with the requirements set out by the Labour Relations act 66 of 1995 and if not, the strike will be deemed as unprotected, and the Employer will be in a position to take certain steps against the employees for their participation in such unlawful activities. ?

When is a strike lawful/protected?

In terms of S64 of the LRA, the issue in dispute must first be referred to the CCMA or relevant Bargaining Council for Conciliation. The said tribunal or forum must then issue a certificate of outcome stating or indicating that the issue remains unresolved. Alternatively, 30 days must have lapsed from the date of the referral of the dispute. Once a certificate has been issued indicating that the matter remains unresolved, the referring party or the party wishing to engage in strike action must give 48 hours written notice of the commencement of the strike to the employer, except where the employer is the state in which case the required notice period is 7 days.

When is a strike unlawful/unprotected?

Industrial action that does not comply with the requirements set out in the LRA will not enjoy the protections afforded by it and may attract civil sanctions for those involved in such strike action and thus will be deemed an unprotected strike.

What are the consequences of an unprotected strike?

An unprotected strike removes the employer's opportunity to develop contingency plans for running the business during the strike. The question then arises as to what an employer is to do if it becomes the victim of a unprocedural strike. Should the Employer hire replacement labour and fire the strikers??The law allows employers to withhold payment of wages of strikers and bring in replacement labour, but many employers are not aware of this.

On the other hand, arguably the most important consequence of an unprotected strike for employees is the fact that in terms of Item 6 of Schedule 8, the Code of Good Practice, participation in an unprotected strike amounts to misconduct and may justify dismissal. Dismissal has been found to be an appropriate sanction where an unprotected strike was planned to create maximum pressure on an employer or to undermine the authority of the employer or where there had been an ultimatum issued, and the employees had refused to return to work.

However, when considering dismissing Employees for participation in an unprotected strike, Employers should approach the matter with caution. Whilst the LRA in combination with case law does allow employers to dismiss employees on this basis, there are various conditions attached to this right and dismissed Employees have frequently been reinstated by the courts. The only procedural step required of employers in terms of item 6 (2) of the Code of Good Practice: Dismissal, is to give an ultimatum before dismissing employees. However, employers that have followed this procedure have nevertheless been severely punished by the courts for a variety of reasons. For example:

in Modise and others v Steve's Spar Blackheath (2000, 5 BLLR 496) the Spar fired employees who had embarked on an unprotected strike. Before the dismissal the Spar issued an ultimatum giving the strikers a chance to halt the strike as a means of avoiding dismissal. Despite this the Labour Appeal Court found the dismissals to be unfair because there had been no hearings. The court said that, irrespective of an ultimatum, no employee should be fired before he has had a chance to be heard in terms of the universal principle of audi alteram partem.?

On the other hand, in the 2017 County Fair Food v FAWU & others case, the Labour Appeal Court considered the provisions of Item 6 and stated that our courts have repeatedly stated that engaging in an illegal strike constitutes serious and unacceptable misconduct. In this particular matter, the employees refused to comply with continuous ultimatums to return to work.

Consequently, the Court held that “the facts showed that the Union and the employees displayed a complete disregard to the consequences of their actions on either the business of the employer or the employment relationship.” The Court found that the sanction of dismissal was fair in the circumstances.

It is therefore always advisable to enlist the services of a Labour Relations Specialist when faced with this type of predicament and at MJSC Pro (Pty) Ltd, our highly skilled professionals are ready to provide you with the guidance and assistance required to help you navigate the chaos and restore harmony to your business. ???

To enquire about our service offerings, kindly contact Werniech van Blerk at 083 551 7162, email us at [email protected] or visit our website at www.mjscpro.com??