Please note that this pertains to South African Labour Law and Best Practice requirements.
So far we have:-
1. Looked at when your staff cannot strike, and
2. We defined exactly what a strike is, and
3. We looked at when a strike is considered protected and
4. How to control strike action and
5. Replacement Labour and
Today we look at Unprotected or Prohibited Strikes.
What exactly is an “Unprotected or Prohibited” Strike? Well, it’s really quite simple and literally means what it says – if the employees or the union have not followed the correct procedures or if they are striking over anything that is not “protected” (see previous articles on this subject), then the strike is not protected, which basically means that they are not protected, in any way from being dismissed (of course, as usual, there are procedures that would still need to be followed).
Should the employees embark on an Unprotected or Prohibited Strike, the employer can go to the Labour Court for an urgent interdict to stop the employees from continuing the strike.
If the employees continue to strike, the employer can start thinking about dismissal. Actually, you don’t need to wait until you get an interdict, which employees usually just ignore, but it is a good idea to wait as it puts the employer in a much stronger position should there be a question of “fair dismissal”.
To re-iterate, in terms of the dismissal, the employee still needs to follow the correct procedures, which would include:
• issuing a written ultimatum to the employees stating that they should return to work or face possible dismissal – please note that the ultimatum must be very clear. The employer must ensure that the staff understand, in simple clear terms, that if they do not come back to work they will face a disciplinary hearing that may result in dismissal. If the ultimatum is not clear, then the employer may end up having to face charges of “unfair” dismissal at a subsequent CCMA hearing. If your workforce is not proficient in English (or whatever language you ‘work’ in), get the ultimatum translated into the language that they use – this will ensure that they do understand the meaning of what it is that you are trying to convey. Don’t, whatever you do “threaten” that there may be a disciplinary – make sure that they understand that if they don’t come back to work within 24 hours (or whatever time frame you set like . . . by tomorrow the 10th July 2021) disciplinary action WILL be taken that may result in dismissal (be careful not to say “will” result in dismissal because that indicates that the verdict has already been handed down before the disciplinary has even taken place). Also, be careful about attaching any further terms and conditions – make sure that they are legal. Make sure that the employees have sufficient time to consider the ultimatum – don’t for example say that they have to be back at work within the hour – that’s just unreasonable. If there is a union, get the union involved and get them to intervene. Unions, generally speaking, do not want their members going off on an unprotected or prohibited strike and they will usually try and persuade the employees to get back to work.
• The Labour Appeal Court, has in the past indicated that it is not enough just to issue an ultimatum to get the employees back to work and then if they don’t you can dismiss them – they still need to have the chance to be heard. It is not necessary to have a formal hearing, but what the employer does need to do, is ensure that staff are dismissed on charges that are “fair and reasonable”. Depending on the number of staff involved, it is suggested, however, that a formal disciplinary hearing take place. In the instances where it is not practical to have a formal hearing for each staff member (imagine doing disciplinary hearings for say 100+ staff members), employers should write to the union advising them that in view of the fact that the employees have not adhered to the ultimatum, you (the employer) are now considering dismissal and that the union now has 24 hours within which to give explanations or make representations as to why you (the employer) should not dismiss the striking employees.
Next week we will have a look at “how” the employer actually goes about the dismissal process.