Skip to main content

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?

_____________________________________

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 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?

June 22, 2026

From the previous articles we’ve compiled this year, you would have gleaned, by now, that it is our viewpoint that s24 of the LRA only governs disputes about the interpretation or application of plant level collective agreements – and does not cover enforcement of such plant level collective agreements. We have also told you that, should the amendment to s23 of the LRA go through, then the jurisdiction of the CCMA will be extended to the enforcement of such plant level collective agreements.
Also, in previous articles compiled by us, we have expressed the view that there is no period prescribing the time within which an interpretation or application dispute of a plant level collective agreement should be referred to the CCMA – therefore, a reasonable time period, based on s191(1) of the LRA, is applicable. From previous articles compiled by us, you will also have gleaned our viewpoint that, currently, there is no provision in the LRA granting the CCMA jurisdiction dealing with condonation applications brought in respect of interpretation or application disputes relating to plant level collective agreements, where such disputes have been referred to the CCMA outside of a reasonable time period.
On the other hand, this article deals with sectoral level collective agreements and attempts to provide some insight into the following burning questions:
• what is the status of a compliance order?
• what is the process to be followed when the enforcement of sectoral collective agreements is sought by bargaining councils?
• what is the time period applicable within which such enforcement is to be sought of sectoral collective agreements by bargaining councils?
• what is the time period to be applied when the LRA is silent?
• on what basis can condonation be granted for the late institution of a claim, or the late issuance of a compliance order?