Strikes and lock-outs

The Labour Relations Act 66 of 1995 (LRA) defines a strike as the partial or complete concerted 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 any matter of mutual interest. In many cases, the reason for a strike is due to annual increases or employees being dissatisfied with the working environment.

South Africa’s Constitution grants each employee the right to strike. The LRA sets out certain provisions 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.

When is a strike protected and unprotected?

When dealing with a grievance or issue in the workplace, employees should first make use of the internal grievance procedure. When the outcome of the grievance is not satisfactory, the employee can refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA). A commissioner will attempt to 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. At that point the employee can elect to refer the matter to arbitration, or to start the process of going on strike. At the same time the commissioner must also determine the picketing rules. Employees should in all instances, notify the employer of their intention to strike by giving the employer at least 48 hours’ notice of the intended strike.

An employer does not have to remunerate an employee for services an employee does not render during a protected strike. The no-work-no-pay principle will apply.

When a strike does not comply with the required procedures in terms of the LRA, the strike will be deemed “unprotected”.

What is a lock-out?

A lock-out is a response by an employer once the employer receives the written notice that the strike will proceed. The definition of a lock-out is the employer’s exclusion of employees from the employer’s workplace for the purpose of compelling the employees to accept a demand in respect of any matter of mutual interest. The employer will give 48 hours’ written notice of a lock-out to the trade union and non-union employees.

Steps an employer should follow prior to dismissal

In terms of LRA Schedule 8 Code of Good Practice: Dismissal, if a strike does not comply with the LRA it is regarded as misconduct, where an employer may take disciplinary action. The type of disciplinary action taken will depend on the facts of each case, including the seriousness of the contravention of the LRA, attempts made to comply with the LRA and whether the strike was in response to unlawful, unfair or unreasonable conduct by the employer.

In terms of the recently updated Code of Good Practice: Dismissal, the seriousness of a contravention must be assessed with reference to several factors, including:

• The conduct of the parties involved in the dispute, as well as the conduct of any other person that may influence the seriousness of the contravention.
• The legitimacy of the strikers’ demands.
• The duration and timing of the strike.
• The harm caused by the strike.

Prior to dismissal, the employer should:

• Inform the trade union at the earliest opportunity of the strike/industrial action and provide the union with an opportunity to consult with the employees.
• Consider and discuss any representations made by the trade union regarding the intended course of action.
• Where no trade union is involved, engage directly with leaders or representatives of the striking employees.
• Issue an ultimatum to the employees in clear and unambiguous terms, stating that they are participating in unprotected strike/industrial action, what is required of them (i.e. to resume work), and what the consequences will be if they fail to comply (including possible dismissal).
• Allow employees sufficient time to reflect on the ultimatum and, if necessary, obtain advice, before deciding whether to comply or not.
• If employees fail to comply with the ultimatum, issue a final ultimatum restating the requirement to resume duties and the consequences of continued non-compliance.

Employers should remember that prior to a dismissal, a hearing always needs to be scheduled to ensure that an employee has a fair opportunity to state his/her side of the case.

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