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Can you dismiss a striking employee for 'operational' reasons?

by , 30 March 2016
It's common knowledge that it's harder to dismiss an employee on a protected strike than it is to dismiss one on an unprotected, or illegal, strike.

In other words, the general understanding around protected strikes is that you can't dismiss an employee.

But this isn't necessarily true in every sense...

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You can dismiss an employee on a protected strike for operational reasons.  

What this means is that if your business loses so much production, as a result of the strike, that its financial health is at risk, then you'll have a reason for retrenchment.

To help you understand this a little more, here are 2 critical points you should know about dismissing striking employees for operational requirements…

Point#1:

You mustn't use operational requirements as a mere way to dismiss striking employees. Remember that the reasons for the retrenchments must be for genuine operational requirements which you can prove.

It's worth noting that the Labour Court has said that you may dismiss employees if the operational reason is a direct result of the strike itself.

Point#2:             

You can't dismiss employees for operational reasons in order to try and force a change in the terms and conditions of employment.

For example, you can't enforce a wage reduction by using an 'operational requirements' process, which attempts to force employees to accept your offer or face retrenchment.

It's very important to note that this remains the case even when your employees go on strike because of a dead end in negotiations.
 
IMPORTANT NOTE:

Remember that a dismissal for operational reasons is a 'no-fault' dismissal, while violence, intimidation and damage to property during a strike, whether unprotected or protected, is viewed as misconduct. So you would have to pay severance pay.
 

*To learn more useful information on how to effectively deal with striking employees, page over to Chapter S 02 in your Labour Law for Managers handbook, or click here to get your copy today. 

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