Strikes have a major impact on businesses’ profitability and survival, as well as the larger economy. According to the Department of Labour, there is a strong increase in strikes. The main reasons for strikes are mostly salary and bonus-related.
The Labour Relations Act (“LRA”) defines a strike as:
The partial or complete refusal to work, or the retardation or obstruction of work by employees for the purpose of remedying a grievance or resolving a dispute in respect of a matter of mutual interest.
Employers generally have the following questions:
Are employees allowed to strike?
Every employee has the right, in terms of the Constitution of South Africa, to strike. The LRA does stipulate certain provisions in order for a strike to be seen as a protected strike. If these procedures are not complied with, the strike will be seen as an unprotected strike.
What are the procedures that employees must follow for the strike to be a protected strike?
Employees should in all instances, when dealing with a grievance or issue in the workplace, make use of the internal grievance procedure. When the outcome of the grievance is not satisfactory, the employee can refer the matter to the CCMA. A commissioner will then try and resolve the dispute through conciliation. If the dispute cannot be resolved, or after the lapse of 30 days since the referral of the dispute to the CCMA, the commissioner will issue a certificate stating that the matter is unresolved and that the employees have the right to embark on a protected strike. Employees should however in all instances notify the employer of their intention to strike by giving the employer at least 48 hours’ notice of the intended strike.
Can employers dismiss employees who participate in a strike?
The employer can take disciplinary action against employees that make themselves guilty of misconduct during the course of a protected strike. Misconduct during strike action can include intimidation of fellow employees, damaging property, etc. When employees do not comply with the above mentioned procedures, the strike will be seen as an unprotected strike. Employees that participate in unprotected strike action can be dismissed, subject to the employer following a correct and fair procedure. Keep in mind that a disciplinary hearing must that place before an employee can be dismissed.
What happens when employees participate in unprotected strikes?
Although employees who participate in an unprotected strike can be dismissed, it is crucial for employers to follow the correct procedure when dismissing these employees. Employers should issue employees with an ultimatum that states that they are taking part in an unprotected strike and that the employer has the right to take further disciplinary action if they do not resume duties. Through the ultimatum the employer must urge employees to resume duties and prevent further disciplinary action. The employer must also inform the employees of the possible consequences should the employees not resume their duties. If the employees have not resumed their duties in the time period allowed, the employer must issue a final ultimatum. It is very important that employees are provided with enough time to remedy the situation when ultimatums are issued. The ultimatums must be clear and understandable to circumvent any confusion.
Employers and employees are urged to ensure that they follow the necessary procedures when dealing with disputes in the workplace. As specialists and market leaders in the field of labour law, the LWO assist employers to address business risks by managing it proactively.
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LWO Regsadviseur - LWO Legal Advisor
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