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Article 63/2022

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
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?