Please note that this pertains to South African Labour Law and Best Practice requirements.
Here we are again, at the dismissals. Your staff have embarked on an ‘Unprotected or illegal’ strike, you have issued an ultimatum and they have not returned to work. The ball is now in your court.
Remember though that you still have to decide whether dismissing them would be considered ‘fair’ before you dismiss. The Code of Good Practice (which we have already looked at in a previous discussion) on dismissals deals with three components which much be taken into account when deciding on the fairness of the dismissal. To re-iterate, these are:
1. the seriousness of the contravention of the Act;
2. attempts made to comply with the Act, and
3. whether or not the strike was in response to unjustified conduct on the part of the employer.
Please note that although these are the three issues that the employer has to look at, the court is not limited to these only.
So, let’s have a look at the ‘seriousness of the contravention of the Act’. If the employees have not followed any of the procedures as laid down by the Labour Relations Act, in all probability the Labour court, will have very little, if any sympathy for the employees who embark on an Unprotected or illegal strike.
What about ‘attempts made to comply with the Act’? Again, if the strike is unprotected or illegal because the striking employees have not followed laid down procedures or the followed the requirements of the Act, the court may have a little more sympathy, depending on the nature of the ‘failure’ to comply. Let’s have a look at this in a little more depth. Let’s say for example the striking employees really believe that the strike was protected – the court may have more sympathy for the employees – this is one instance where ‘ignorance of the law is bliss’! Here’s the deal – the employees did not, for example, give management the required 48 hours ‘notice of intention to strike’ it was only 40 hours. The employees, have in their ignorance, thought that they had complied with the requirements, but technically they hadn’t – so the strike is unprotected. The court will have sympathy with the employee – so be careful on this issue.
And finally, ‘whether the strike was in response to the employer’s unjustified conduct’. If the strike is in direct response to a perceived something that the employer has done, I would suggest that you call in a Labour Attorney as each of these needs to be judged on their own merit.
A word of caution here though – if the employer provokes a strike or if there is ‘bad faith’ during negotiations before the strike takes place, the court will come to the assistance of the employees. So make very sure that your reasons, as the employer, of doing what you did are very clear and transparent.
One of the other issues that the court will look at is the duration of the strike. If the employees are dismissed as soon as the strike starts, the court will in all likelihood rule the dismissals as ‘unfair’. If the strike has been going on for a long time, and this results in irreparable financial harm to the company (and this must be able to be proved) then the dismissal of the strikers would be considered fair.
Here’s the thing though, there are also consequences to a protected strike. The Labour Relations Act does control and regulate these consequences.
Firstly you cannot institute civil proceedings against an employee for participating in a protected strike, however the employee is not entitled to receive any pay during the period of the strike – the ‘no work, no pay’ rule applies. Please note though, that if the employee’s package includes payment for accommodation or food etc, these have to continue. What you also can do though is recover the ‘payments in kind’ by instituting civil procedures in the Labour Court.
Secondly and more importantly, although you cannot dismiss a staff member for participating in a protected strike, but you can (in certain circumstances) dismiss the employee for ‘operational reasons’. Beware though, that this can only be done if there are genuine operational reasons and as long as you comply with the requirements of Section 189 or 189A of the Labour Relations Act. The bottom line is that if, as a consequence of the strike, the employer loses business or production to such an extent that the financial wellness of the company has been put or is at risk, then you will have good and valid reasons to consider retrenchment.
Just be careful that you don’t use ‘operation requirements’ as an excuse to dismiss striking employees. The reason for the retrenchment must be genuine and you must be able to show that they are linked to the operational requirements of the business. The Labour Appeal Court has ruled that employees can be dismissed if the ‘operational reason’ for retrenchment is as a direct result of the employees going on strike.
Again, please also remember that irrespective of whether the strike is protected or unprotected, employees can be dismissed for misconduct during the strike. These would pertain to issues such as intimidation, violence (both physical and/or verbal) and damage to property.
Next week we tackle a new issue.