LWLC311 • whether dismissal is possible
FURTHER NOTES • the seriousness of contravention of requirements of the LRA
CONSEQUENCES OF PROTECTED STRIKES AND LOCK-OUTS
PROTECTED STRIKE
If employees take part in a protected strike they are protected against:
• Civil liability (this means the employer cannot claim damages from the trade union and
employees for example for loss of income)
• Dismissal – except where employee is guilty of misconduct during strike and for operational
reasons
• An interdict to stop the strike and anyone may approach the Labour Court to claim just and
equitable compensation for any loss caused by the strike
• Unfair discrimination (the employer may not advantage employee in return for not
exercising his rights eg he may not pay bonusses to non-striking employees)
BUT forfeits remuneration (this is for protected and unprotected strikes)
IF an employee stays in accommodation provided or on the premises of the employer (eg farm
workers / mine workers) this payment in kind in the form of accommodation or basic entitlements
may not be stopped but the employer may deduct the cost of that after the strike.
For example: Farmer Fred has 10 farm workers who live on the farm. The value of the rental free
accommodation is R500 per month. The farm workers strike for a month. Farmer Fred may not kick
them off the farm for a month but at the end of the month he will not pay the workers (no work no
pay) and at the end of the next month he will deduct R500 from their wages.
UNPROTECTED STRIKE
The striking employees will NOT be protected against:
• Civil liability and anyone may approach the Labour Court to claim just and equitable
compensation for any loss caused by the strike
• Dismissal
• An interdict
DISMISSAL OF EMPLOYEES WHO TAKE PART IN A PROTECTED STRIKE
Before employees who take part in an unprotected strike may be dismissed, there must be a fair
reason (substantive fairness) and a fair process (procedural fairness).
SUBSTANTIVE FAIRNESS
The fair reason (substantive fairness) will be that there is a protected strike but other factors should
also be considered, such as:
• the attempts made by the union to comply with the law and the extent to which it did,
• whether strike premeditated
• the conduct of the other party
• attempts made to comply with the LRA
• whether the strike was in response to unjustified conduct by the other party
PROCEDURAL FAIRNESS:
Prior to dismissal the employer should at the earliest opportunity contact the trade unions official to
discuss the course of action it intends to adopt.
The employer should issue an ultimatum to the striking employees which must comply with the
following:
• It should in clear and unambiguous terms
• State what is required of the employees and
• What sanction will be imposed if they do not comply with the ultimatum
• The employees should have sufficient time to reflect on the ultimatum and respond to it - by
complying or rejecting it
• IF employer cannot reasonable comply with these steps - he may dispense therewith
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PICKETING
Definition:
A picket is conduct in contemplation of or furtherance of a strike and the purpose is to peacefully
encourage non-striking employees and members of the public to support the strike.
Requirements for a protected picket:
• Must be called by a registered trade union
• Members and supporters (and even former employees) of union may picket
• The purpose must be to peacefully demonstrate in support of any protected strike or in
opposition of any lock-out (protected / unprotected)
• It can be at a place to where the public has access but outside the proses of the employer with
the permission of the employer - on the premises
• Permission may not be unreasonably withheld
• It must be conducted in a peaceful, unarmed, lawful manner
PROTEST ACTION
Definition:
The partial or complete concerted refusal to work or the retardation or obstruction of work for the
purpose of promoting or defending the socioeconomic interests of workers but not for a purpose
referred to in the definition of a strike.
Procedural requirements:
• 14 days’ notice to proceed
• by registered trade union or federation of trade unions
• serve notice on NEDLAC stating the reason of protest action and nature of protest action
• matter giving rise to the intended protest action been considered by NEDLAC or other forum