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Can you legally dismiss an employee when there's a strike?

by , 12 March 2015
Every now and then, employees become unhappy with certain aspects about their everyday work. They try to negotiate new ways with their employer, but aren't always successful.

So they decide to go for a strike, something that any employer would prefer to avoid as much as possible. And when your employees go on strike it can lead to loss of productivity, angry customers, financial losses, injury, damage to property and soured employee relations.

Frustrating as it is, if your first impulse is to dismiss those who choose to go on strike, beware of the legal provisions and procedures.

Here's why…

Your employee's right to strike is protected by the Constitition

Bear in mind that each one of your employees can go on strike, based on the constitutional right to protest and engage in trade union activity (Chapter 4 of the LRA 66 of 1995, and Section 23 of the Constitution of South Africa No. 109 of 1996).
And they don't have to be part of a trade union to go on strike either. 
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So can you legally dismiss an employee for going on strike?
No, you can't.
Employees are protected by the law of dismissal (Section 67(4) of the LRA) so a dismissal based on this reason will be automatically considered as unfair (Section 187 (1) (a) and (b) of the LRA.

And in case you want to dismiss them make sure you know whether your employees' strike is protected or unprotected. If you incorrectly assume that the strike is unprotected and you dismiss the strikers, the cost to your business would be enormous.
Not to mention that if the Labour Court discovers the strike was a protected one, dismissal may be found to be automatically unfair. Which means you may have either pay every dismissed employee up to two years' remuneration in compensation or you'll have to reinstate them with a full back pay for the period between the date of the dismissal and the reinstatement.

These are the most important things you have to bear in mind every time a strike starts in your company so you won't have any issues with the authorities. Follow our posts to find out more about how you can deal with strikes and dismissals from both a business and legal perspective. 

Untill then, if you have any inquiries about strikes and the legal procedures or your legal rights ask our experts on our Leabour and Human Resources Club .

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