What is the procedure to be adopted when considering the dismissal of employees participating in an unprotected strike or collective withdrawal of labour?
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The approach as set out below is applicable in respect of both the aforesaid positions, namely, unprotected strike action and collective withdrawal of labour (Modise v Steve’s Spar Blackheath (1999) 10 (6) SALLR (LAC), PTAWU v New Kleinfontein Gold Mine (2016) 27 SALLR 21 (LC); Karras v SA Scooter Transport and Allied Workers Union (2000) 11 (5) SALLR 1 (LAC); Mzeku v Volkswagen SA (Pty) Ltd (2001) 12 (6) SALLR (LC)):
step 1
- the employer is required to invite representations or provide an opportunity, before issuing an ultimatum, that the employees or the trade union should state their case why:
- it cannot be said that an unprotected strike or the collective withdrawal of labour exists
- why an ultimatum cannot be issued indicating a return to work at a specific time and date and, furthermore, indicating that dismissal would be the appropriate sanction when there is failure to comply with the aforesaid time and date
- depending on the circumstances, the aforesaid representation or opportunity might entail making written representations (Modise (supra))
step 2
- if appropriate, the employer should issue the ultimatum
step 3
- when there is a failure to comply with the ultimatum, the employer should invite representations or, alternatively, provide the opportunity to state the case why dismissals should not be implemented
- it is not necessary for a formal enquiry and, depending on the circumstances, this might entail an opportunity to make written representations (Modise (supra); NTM obo Molema Botselo Holdings (2020) 41 ILJ 701 (LC))
step 4
- the employer is entitled to implement dismissals, if found to be appropriate
- the following process is recommended to determine whether or not dismissals are appropriate for such misconduct, based upon, inter alia, the approach adopted in NUMSA v CBI Electric African Cables (2014) 25 SALLR 33 (LAC); (2014) 35 ILJ 642 (LAC):
a consideration of item 6(1) of Schedule 8 to determine substantive fairness
- the following factors need to be considered:
- the seriousness of the contravention
- attempts made to comply with the LRA
- whether the strike or the collective withdrawal of labour was in response to unjustified conduct by the employer
- duration of the strike
- harm caused by the strike
- the legitimacy of the strikers’ demand(s)
- the timing of the strike
- the conduct of the strikers
- the application of the parity principle requiring that employees should be dealt with on an equal basis
the application of item 6(2) of Schedule 8
- in order to determine procedural farness, the following factors are relevant:
- establishing whether or not the trade union official was contacted at the earliest opportunity to discuss the intended cause of action (referring to step 1 above)
- a consideration of the ultimatum with reference to, inter alia, the clarity of its terms, what is required of the employees, the sanction to be imposed for non-compliance and the time granted to reflect on it and respond to it (in essence, a consideration of that what is set out above in steps 1 and 2)
a consideration of item 7 of Schedule 8
- what is to be determined is whether or not the employees indeed contravened a workplace rule or standard
- if so, whether or not:
- the workplace rule is valid or reasonable
- the employees were aware or could have been aware of the workplace rule
- the employer consistently applied the workplace rule
- dismissal is the appropriate sanction
