Managing strikes is a topical subject, with the current bus drivers strike and the prospects of a teachers, police and nurse public sector strike, also over wages and conditions of service.

Section 213 of the Labour Relations Act defines a ‘strike’ as “the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to work in this definition includes overtime work, whether it is voluntary or compulsory.”

Section 68(5) of the Act provides that “Participation in a strike that does not comply with the provisions of this Chapter, or conduct in contemplation or in furtherance of that strike, may constitute a fair reason for dismissal. In determining whether or not a dismissal is fair, the Code of Good Conduct: dismissal in Schedule 8 must be taken into account.”

Item 6 (1) of this Code deals with the substantive fairness of strike dismissals as follows, “Participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of a dismissal in these circumstances must be determined in the light of the facts of the case, including:

 (a)        the seriousness of the contravention of this Act;

(b)        attempts made to comply with this Act; and

(c)        whether or not the strike was in response to unjustified conduct by the employer.”

To begin with, it is roundly assumed by employers that employees choose strike quite willingly and without consideration of the consequences.  Whilst strikers frequently strike with zeal, it must be borne in mind that a decision to strike is not always necessarily an easy one, as the economic consequences of workers striking are significant.

In addition, strike ballots invariably result in certain workers opposing a proposed strike, yet they are outvoted and compelled to participate in the strike.  Amendments to the Labour Relations Act are expected to be Gazetted before year-end, which will compel unions to hold secret strike ballot before commencing strike action.

Voting to strike in a strike ballot is one thing, sustaining the strike is quite another.  It is a truism that worker support for strike activity begins to wean from the onset of the strike, and strikers become fragmented in their support from the continuance of the strike activity.

Maintaining support for strike over time becomes increasingly difficult, especially as the economic hardship of prolonged lack of income evolves.  There is the added consideration of the increasing capacity and ability of employers to successfully implement contingency plans in response to strike action.

In the case of unprotected strikes, employers are often of the mistaken belief that participants in unprotected strike action can be quickly dismissed by virtue of the unprotected nature of the strike; nothing could be further from the truth.  There is a process that must be followed.

Case law abounds with judgments which have declared the dismissal of strikers during unprotected strikes as having been unfair, with the dismissed unprotected strikers being reinstated.

Employees who embark on strike action without completely following the necessary pre-industrial action steps outlined in the Act participate in “unprotected” versus “protected” strike action.  Participation in such unprotected strike action amounts to misconduct and “may constitute a fair reason for dismissal” [section 68(5) of the Act].

The remedies available to employers faced with unprotected strike action are interdicts, restraining orders, and an application to the Labour Court for compensation for any losses attributable to the unprotected strike action.  In addition, employers are entitled to contemplate the dismissal of strikers for participation in the unprotected strike action, ensuring compliance with the pre-dismissal procedures outlined in Schedule 8 of the Act, the Code of Good Practice: Dismissal.

Primary considerations should be (1) was the unprotected strike spawned by unjustified conduct on the part of the employer? (2) the employer must promptly engage the union, outlining its intended course of action, (3) prior to the dismissal of unprotected strikers, the employer must have issued an ultimatum to the strikers “in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum”, and (4) “The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it”.

Strike related misconduct is, unfortunately, frequently evident during bot protected and unprotected strikes.  On this subject, the Labour Appeal Court has confirmed that the right to strike is not a licence to engage in misconduct.