STRIKES AND INDUSTRIAL ACTION

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. 

WHEN IS A STRIKE A “PROTECTED” STRIKE?

Every employee has the right in terms of South Africa’s Constitution to strike.  The LRA does stipulate certain provisions for a strike to be seen as a protected strike. If these provisions are not complied with, the strike will be seen as an unprotected 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 Commission for Conciliation, Mediation and Arbitration (“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.

REMUNERATION DURING A PROTECTED 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 IS A STRIKE AN “UNPROTECTED” STRIKE?

An unprotected strike is strike action that does not comply with the requirements in accordance with the LRA. An employer must follow certain procedural steps when a strike occurs to ensure any disciplinary action taken against employees for an unprotected strike is regarded as procedurally fair.

WHAT IS A LOCK-OUT?

A lock-out is a response by an employer once the employer receives the written notice of the strike proceeding. The definition of a lock-out is the exclusion by an employer 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.

INDUSTRIAL ACTION

Industrial action is when employees put the employer under pressure to agree to their demands. Industrial action can take some of the following forms:

1. Stay-away – when employees collectively decide not to report for duty;
2. Go-slow – when employees collectively work slower;
3. Sit-in – when employees collectively decide to report for duty but refuse to conduct their duties.

STRIKES AND MISCONDUCT

In terms of Schedule 8 Code of Good Practice: Dismissal, a strike that does not comply with the LRA 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 as well as the employer’s disciplinary code. Prior to taking disciplinary action, the employer should liaise with the trade union and issue ultimatums in accordance with prescribed procedures in terms of labour law.