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

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