Please note that this pertains to South African Labour and Best Practice requirements.
Staff who take part in, or participate in any way, a strike that does not comply with the provisions in chapter iv of the Act, are by default, guilty of misconduct.
Please remember, just because they have taken part in an illegal strike, and that that is considered “misconduct”, it does not necessarily mean that they deserve to be dismissed. It still has to be determined whether or not a dismissal is fair.
In these instances the following needs to be taken into consideration:- the seriousness of the contravention of the Act- whether any attempt was make to comply with the Act- whether or not the strike was in response to any unjustified conduct by the employer.
Before dismissal takes place the employer must, discuss the intended dismissal or any other action that they intend to take, with the trade union concerned.
The employer also needs to make it very clear, in simple language that all can understand, the terms and conditions of what is required and what the consequences will be, should they not comply with the requirements.
Once again the employees should be allowed a reasonable amount of time, in which to make a decision to either agree to the requirements or reject them.
Once again there may be instances where the employer cannot reasonably be expected to comply with these requirements, with the employees concerned. In these instances the employer may disregard the guidelines. Again this must be documented and a copy retained in the employee’s personnel file.