Various myths and facts are associated with strike activity, especially given the heightened emotions and tension which accompanies strike action.
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.
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 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.
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:
1. Interdicts or Restraining Order
2. An application to the Labour Court for compensation for any losses attributable to the unprotected strike action
3. 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”.
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”.
Finally, regarded must be had for recent amendments to the Labour Relations Act which quite significantly change striker picketing rights, especially in the event that the employer is a tenant of a landlord who may disapprove of picketing taking place on their property.
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