STRIKES & STAY -AWAYS

Section 23 of the Constitution of the Republic of South Africa confers on every worker the right to strike. It further provides that every trade union, employers’ organization, and employer have the right to engage in collective bargaining and goes on to provide that national legislation may be enacted to regulate the process.


What constitutes a strike?

  1. a partial or complete concerted refusal to work or the retardation or obstruction of work,

  2. by persons who are or have been employed by the same employers or by different employers,

  3. for the purpose of remedying a grievance or resolving a dispute,

  4. in respect of a matter of mutual interest between employer and employee.

On an account of the above, the South African Federation of Trade Unions (SAFTU) says that it will embark on strike action around the country next week in response to a, number of economic problems facing the country and as such has given notice to Nedlac to embark on a strike on 24 February 2021.


The trade federation on has published dozens of grievances which primarily center on a few key points:

  • The construction of a new economy – including a minimum wage of R 12,500 a month for all workers, and a moratorium on all job losses.

  • The improvement of living conditions and the redistribution of land.

  • The cutting of greenhouse gas emissions.

  • Raising the social wage and providing public healthcare finance.

  • Free, decolonized, and high-quality public education.

  • An end to corruption and crime.

  • A non-racial, non-sexist, democratic, socialist society.

The right to strike is recognized as an important bargaining tool for trade unions, however the right to strike needs to be limited to the Labor Relations Act and as such below are a couple of key takeaways courtesy of www.cliffedekkerhofmeyr.com


A strike can take the form of:

  • A partial or complete refusal to work.

  • A ‘go slow’ where employees are working slowly to put pressure on an employer to comply with a demand.

  • A ‘grasshopper’ strike - this happens when the employees go on intermittent work stoppages about the same demand (IE) strike, return to work, strike again) but always in conjunction with the defined purpose of attempting to resolve a mutual interest issue existing between the parties.

The disgruntled employees will normally express the purpose of a withholding of work in some form of a demand made to the employer.


Does a work stoppage constitute a strike?

A work stoppage is different to a strike. The difference between a work stoppage and a strike is that there is no demand made by the participants in a work stoppage, the participants simply stop working. The distinction between a work stoppage and a strike is an important one as it has an impact on the types of remedies available to the employer when such conduct occurs.


What is a protected strike?

A protected strike is a strike that complies with the requirements in the LRA, where the subject matter of the strike is legitimate and procedural requirements are complied with prior to the strike commencing.


If a strike is protected, no adverse consequences may result for employees who participate in protected strike action. Those employees are indemnified from claims for breach of contracts or delict and for damages suffered by the employer pursuant to a protected strike. Importantly, employees are protected from dismissal for participating in a protected strike.


Can an employer dismiss employees for participating in a protected strike?


No. A dismissal in such circumstances would constitute an automatically unfair dismissal. However, misconduct during a protected strike may be the subject of appropriate disciplinary action.


Can an employer dismiss employees as a result, of operational requirements flowing from a protected strike?

Although employees are protected from dismissal for participating in protected strike action, the LRA does not preclude employers from dismissing employees based on operational requirements.


However, in circumstances where the intention of a strike is to put financial pressure on an employer’s business, an employer will have to prove that the main reason for the dismissal was the operational requirements of the employer and did not relate to employees’ participation in the protected strike and that the reason for the dismissal and procedure followed was fair.


The employer will also have to show that it considered alternatives to retrenchment and paid attention to letting the outcome of the strike be determined by the normal exercise of economic power.


What remedies are available to an employer if strike action is unprotected?


Unprotected strike action may be interdicted by the Labour Court on application. The LRA provides for an expedited process in such an event. Employers may also take disciplinary action against employees for participating in unprotected strike action. The Labour Court may also order the payment of compensation for loss arising from the unprotected strike after having regard to a number, of factors, including the “financial position of the employer, trade union or employees”.


Can an employer dismiss an employee for participating in unprotected strike action?


Although participation in an unprotected strike constitutes misconduct, dismissal may not necessarily be the appropriate remedy. The Code of Good Practice: Dismissal sets out various considerations when determining the fairness of the dismissals. These considerations include whether “the strike was in response to unjustified conduct by the employer.”


Is an employer required to pay employees during a strike?


No. The principle of “no work no pay” applies. Should an employer provide accommodation or meals to employees in the ordinary course of employment, the employer is entitled to suspend such services at the commencement of the strike. However, if the employees or their trade union specifically request a continuation thereof, these services should be continued, with the proviso that the employer can make the appropriate deductions, if it has consent, once the strike is over, or it would have to sue for such amounts.


Should you require assistance with any labour matters, please do not hesitate to contact us.

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