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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
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?