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Article 2/2026

LabourEdge

The Code of Good Practice: Dismissal (the Code) in item 12 deals with dismissals and industrial action.

The principles established in, amongst others, item 6(1) of the repealed Schedule 8 are repeated in item 12(1) of the Code and, in essence, amount to the following:

  • participation in a strike (as well as the collective withdrawal of labour) that does not comply with the provisions of Chapter IV is misconduct
  • the substantive fairness of a dismissal in these circumstances must be determined with reference to the facts of each case and include the following:
    • the seriousness of the contravention of the LRA
    • attempts made to comply with the LRA
    • a determination as to whether the strike was in response to unlawful, unfair or unreasonable conduct by the employer

What are the factors relevant to assessing the seriousness of the contravention of the LRA in the above regard? 

What are the procedural fairness requirements to be complied with before a dismissal is implemented?

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The following factors are relevant to assessing the seriousness of the contravention of the requirements of the LRA (with reference to item 12(2) of the Code – these factors were not part of the repealed Schedule 8, but some references to these factors are found in the content of s68 of the LRA):

  • the conduct of the parties to the dispute related to the industrial action
  • the conduct of any other person that has a bearing on the seriousness of the contravention
  • the legitimacy of the strikers’ demands
  • the duration and timing of the strike
  • the harm caused by the strike

The procedural fairness requirements relating to the scenario where employees embark on unprotected strike action or the collective withdrawal of labour, as set out in item 12(3) of the Code, corresponds largely to the content of the repealed s6(2) of Schedule 8, as well as the relevant case law, and amounts to the following:

  • the employer, at the earliest opportunity, must contact a trade union official to inform the trade union about the strike, so as to create an opportunity to consult with the striking employees
  • the employer should consider representations by the said official and discuss, with the trade union, the course of action it intends to adopt
  • if there is no trade union involved, then the employer is to engage with the leaders/ representatives of the striking employees
  • the employer is to issue a clear and unambiguous ultimatum, setting out what is required of the striking employees and what the sanction will be in the case of non-compliance
  • the employees must be allowed sufficient time to reflect on the ultimatum and to respond to it (either complying or rejecting it)
  • if the ultimatum is issued to employees participating in an unprotected strike and the employees obey and return to work within the required time period, it may be unfair to dismiss the employees for participation in the strike
  • if the employees reject the ultimatum, the employer may dismiss them:
    • after considering their conduct
    • after considering representations received from the employees ito the Code
  • in the case of collective misconduct, depending on the circumstances, the employer may be entitled to call for collective representation
  • if the employer cannot reasonably be expected to extend any of the above procedural steps, the employer may dispense with them
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But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

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