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...
Discover the essential components of a strike and effectively manage striking employees...
aren't managed properly they could spiral out of control and become violent...
Leaving your company crippled by work disruptions and loss of profits...
Discover how you can avoid strikes
from ruining your company here.
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…
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.
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.
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.