By Mhlo Ntshangase
Johannesburg South Branch Manager
Strikes in South Africa are becoming ever more prevalent as South Africa faces some very challenging times economically. Employees are increasingly using the method of downing tools as a way of getting the employer to give in to their demands. Section 213 of the Labour Relations Act 66 of 1995 defines a strike as, " the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or who have been employed by the same employer or different employers for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between the employer and employee, and every reference to work in the definition includes overtime work, whether its voluntary or compulsory."
There are many intricacies, different aspects, different types of strikes and a varied number of issues that could lead to strike action, however, for the purposes of this article we shall focus on the procedures that must be followed whenever employees decide to embark upon strike action and whether or not contravention of these procedures could lead to dismissal. Section 64 of the Labour Relations Act prescribes the procedure to be followed for lawful strike action, however, many employees still do not follow these provisions and employers should not take such unlawful conduct lightly especially if it costs the employer huge amounts of money that they may not be able to recover.
To put it in basic terms, before employees can embark on a strike, the dispute between the employer and the employees must first be referred to the CCMA, and a certificate of non-resolution must have been issued by the CCMA, or 30 days must have lapsed since the dispute was referred to the CCMA and the matter has not been resolved. Secondly, at least 48 hours notice of the intended strike action must have been given to the employer. This notice must be in writing and must contain the date and the time of when the strike will commence. If these provisions are followed, the strike is then regarded as being protected, however, should these provisions not be followed it is regarded as unprotected. The question then arises as to whether or not employees embarking on unprotected strike action can be disciplined and whether or not they can be dismissed?
Employees embarking on unprotected strike action can most certainly be disciplined, however, when deciding on whether or not dismissal is fair, the courts look at the duration of the unprotected strike, whether or not the striking employees attempted to comply with the provisions of section 64 of the Labour Relations Act, and the conduct of the employer.
In the judgement of Modise & Others vs Steve's Spar Blackheath , the court held that dismissal was substantively fair when workers participated in an unprotected strike. What must be noted however is that the court found that the dismissal was procedurally unfair because the employer had not issued workers with a proper ultimatum informing them that their actions are unlawful and furthermore informing them of the consequences of participating in the unprotected strike. Secondly, the employees must always receive an opportunity to be heard irrespective of the fact that the ultimatum had been given. The purpose of the hearing is to give employees an opportunity to state why they should not be dismissed and why they participated in the strike action in the first place, where instances of intimidation would be taken into account. The onus however of justifying non-compliance rests on the strikers. The ultimatum given must also be communicated to the strikers in clear, unambiguous terms in a medium understood by all workers as not just any ultimatum will do.
Dismissal therefore is not always the appropriate sanction for employees embarking on unprotected strike action and therefore caution should be taken by the employer in making such a decision without consulting an expert labour law advisor on the matter.
Secondly, just because employees down tools, it does not mean that a strike has taken place as there must be a dispute between the employer and the employees or the trade union over a matter of mutual interest where the employees or trade union demand that the employer accept their demands. In most cases, where employees have the right to refer the matter to arbitration, they may not exercise their right to strike. Downing of tools in the absence of a dispute over a matter of mutual interest may be viewed as either a dereliction of duties or breach of employment contract.
In South Africa, we have clearly seen how violent strikes can become and the question one should ask is whether or not such conduct is allowed during lawful strike action. In other words, can the employer institute action against an employee who becomes violent and misconducts themselves during the protected strike? In Chemical Energy Paper Printing Wood & Allied Workers Union & Others vs Metrofile (Pty) Ltd, during protected strike action, employees were involved in acts of misconduct, including violence and intimidation and they were dismissed. The Labour Court found the dismissal of the employees to be substantively fair, however, procedurally unfair due to the fact that the employer held the disciplinary hearing in the employees' absence after they refused to attend. The Labour Appeal Court however found that the matter was procedurally fair as proper notification of the hearing had been given to the employees, however, it found that the dismissal was substantively unfair as the employer dismissed only a few of the striking employees and thus selectively dismissed some and not others and his application of discipline was not consistent. What is important to note is that if the employer had dismissed all employees involved in the conduct, the matter would have also been substantively fair, indicating that employees are not allowed to partake in misconduct during any strike action, and such misconduct can lead to the termination of their services. Caution should be taken when dismissing such employees as the code of good practice relating to dismissals should be taken into account.
It must however be stressed that the mere dismissal of employees just because they participated in a protected strike and were not involved in any misconduct during the strike is regarded as being automatically unfair and carries the maximum of 24 months compensation in favour of the employees.
In conclusion, with strike season upon us yet again, it is important to make sure that you as the employer are aware of when employees can strike and the matters they are permitted to strike over. Such awareness can save you hundreds of thousands of rands. Labournet (Pty) Ltd can assist with expert advice on how to appropriately deal with all issues relating to strikes and the misconduct related to them, this includes:
- Representing the company during wage negotiations,
- Assistance at the CCMA if a matter is refered due to a deadlock reached,
- Issuing of ultimatums if your employees embark on an unprotected strike,
- Drafting of notice's to attend disciplinary hearings in the event your employees embark on an unprotected strike, or committed an act of misconduct during a protected strike.
- Chairing of the subsequent disciplinary inquiries.
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The information published in this article or newsletter is of general nature and should not be used without obtaining specific advise as to its application in your business or under your specific circumstances. LabourNet will accept no liability if the information is used without first obtaining specific advise from one of our consultants