Striking Employees
Published in Labour Law · 5 July 2022
It’s on the news daily, employees of a certain company or a trade union have embarked on a strike, demanding higher wages, singing, dancing and waving their pickets. When an employer receives the 48-hour strike notice, panic usually sets in as the risks of operational shutdown and losses run through their mind. We know that protracted strikes can cripple any business in the current economic climate. Trade unions and political parties may try to capitalise on the emotions of employees, coaxing and manipulating employees into prolonged and sometimes violent strikes.
There are rules and laws that govern labour strikes in our country which are described in the Labour Relations Act 66 of 1995 (LRA). The South African Constitution recognises the right to strike as an important collective bargaining tool that employees and trade unions can use to pressure employers into listening to their demands when all other avenues of conciliation have failed. The LRA puts in place a set of procedures that must be adhered to for a strike to be regarded as lawful or protected.
If the strike is ‘protected’ then the employees are safe from being dismissed for participating in the strike. Firstly, the issue in dispute must be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA). Atleast 30 days should lapse after referral or upon receipt of a certificate from the CCMA stating that the matter remains unresolved. Lastly, the Union or the employees should issue the employer with a 48-hour notice of strike. These are the fundamental steps but there are further constraints placed upon employees working for businesses involved in essential services or maintenance services.
If a protected strike does occur and any employees are found guilty of misconduct whilst participating in the strike action, they can still be disciplined or dismissed after a disciplinary hearing. Instances of violent behaviour or damage to company property may lead to many individuals being disciplined due to derivative misconduct when they do not prevent or speak up about who committed the misconduct. Many employers wonder whether they should pay their workers whilst they participate in a protected strike and the answer is simple, if you don’t work, you don’t get paid whether it was a protected strike or an unprotected strike.
If employees or unions embark on an unprotected strike, it is important for the employer to issue them with an ultimatum that states the consequences of their actions clearly. If you issue the workers with an ultimatum, then they are aware of the consequences of continuing with an unprotected strike. Remember that the law allows you as an employer to apply to the Labour Court for an interdict order to stop any strike action that becomes violent or is unlawful. There are many finer points and scenarios that affect the legality and responses to strike action.
Industrial action should be avoided as far as possible by engaging in sincere conciliation processes with the aim of resolving disputes. It is the failure of employers and employees at the negotiating table that leads to industrial action taking place. When a business shuts down as a result of striking employees, it spells disaster for all parties concerned. This highlights the importance of effective labour dispute resolution and this is why employers and employees need to know how to deal with conflict and strikes.
This article does not constitute legal advice and is based on the author’s interpretation of legislation and case law. Book a consult for legal advice or assistance pertaining to your specific matter.