Legal Articles

Resorting to strike action by employees or a labour union is indicative of the fact that the grievances raised have remained unresolved. However, strike action may have undesirable consequences for the participants in the event that it is not protected (not in compliance with the law). Therefore, it is imperative for employees and/or their representatives to ensure that the action complies with the law to avoid dismissals. As in the previous instalment under the same title, we shall continue to discuss the legal principles surrounding strikes.

What requirements must be fulfilled for a strike to be protected?

As advised in our previous instalment, a protected strike is one that complies with the laid down legal requirements as set out in the Labour Relations Act 66 of 1995 (LRA). Consequently, employees who participate in a protected strike do not face the threat of dismissal by the employer for the mere fact of their participation, as it would amount to an automatically unfair dismissal. For a strike to be protected, the requirements are that:

• The dispute must be referred to the CCMA or a bargaining council;
• 30 days must lapse from the time the dispute was successfully referred to the CCMA or the bargaining council: OR

A certificate must be issued indicating that the matter remains unresolved;

• A notice that the strike action will commence must be issued to the employer not less than 48 hours before the strike action commences.

What are the different forms of a strike?

Strike action may take the form of a partial or complete refusal to work, a “go slow” action where employees discharge their duties in a slow manner for the employer to accede to their demands or, when employees go on recurrent work stoppages about the same demand.

What if the strike does not commence on the date and time provided in the notice?

It may result in the employer assuming that the industrial action has been abandoned. As such, a new notice must be issued to the employer informing them of a new date and time for the commencement of the industrial action.

Can a protected strike turn into an unprotected one?

Yes. This happens when the demands that are the subject of the strike action have been fully addressed by the employer, yet the employees continue to engage in the strike action (Transport and Allied Workers Union of SA obo Ngedle and others v Unitrans Fuel and Chemical Co (Pty) Ltd (2016) 37 ILJ 2485 (CC). Alternatively, a protected strike may become unprotected in the event that the employer has secured a Court Order to interdict against the further continuance of the strike action.

May an employee be dismissed for misconduct during a protected strike?

It must be emphasised that participating in a protected strike may not be used as a ground to dismiss an employee, but that misconduct during a protected strike may indeed be subject to appropriate disciplinary action. It is therefore advisable for employees to note that despite the strike being a protected one, misconduct may invite necessary disciplinary action.

At Van Deventer and Van Deventer Incorporated we assist employees and employers alike with regard to compliance during industrial and strike actions, as well as in general labour litigation. We also assist in civil and general litigation, criminal litigation, family law matters such as maintenance, divorces, protection orders, Rule 43 applications, Rule 58 applications and others. We also assist in personal injury, company law and deceased estates amidst an array of others.

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