Dismissing employees on an unprotected strike? Here's what to consider

If your employee's strike is unprotected, you can approach the Labour Court for an urgent interdict to prevent them from continuing with the strike. If your employees continue to strike despite an interdict, you can start thinking about dismissal, says the Labour Law for Managers Loose Leaf Service.

To effect a procedurally fair dismissal of striking employees, the Labour Relations Act (LRA) requires you to follow a fair procedure.

The three factors you must consider to determine the fairness of the dismissal are:

1. The seriousness of the contravention of the Act;
2. Attempts made to comply with the Act, and
3. Whether or not the strike was in response to unjustified conduct on the part of the employer.

Let's take a closer look at each of these considerations again! This is what the courts will look at to determine if you acted fairly.

Three factors to consider when dismissing employees on an unprotected strike

Consideration #1: The seriousness of the contravention of the Act

The Labour Court's attitude is that if your employees demonstrate a complete disregard for the procedures of the LRA, the strikers receive less sympathy.

Consideration #2: Attempts made to comply with the Act

If the strike is unprotected because of a failure to comply with the procedural requirements of the Act, your striking employees will receive more sympathy.

For example, let's assume your employees notice of intention to strike didn't give you 48 hours' notice to prepare before they started striking. In this instance, the failure to comply with Section 64 of the LRA is of a technical nature. But if your employees genuinely believed that the strike was protected, the court will have more sympathy.

Consideration #3: Whether the strike was in response to your unjustified conduct

The Labour Court will call the fairness of the dismissal into question if your conduct is unjustified.

For example, if you refuse to discuss the issue giving rise to the strike with your employees, the strike may be regarded as justified even though the strike is unprotected.

An illegal strike, on the other hand, won't be considered justified if you refuse to comply with a union's wage demand.

The Labour Court has also held that an illegal strike is worthy of protection if the strike is functional to or complies with the principles of collective bargaining or the employees have attempted to negotiate in good faith.

Remember, if you provoke the strike or negotiate in bad faith, then the court will come to the assistance of your employees.

And don't forget, the duration of a strike is also relevant.

If you dismiss your employees straight after the start of the strike, the dismissals will probably be determined to be unfair. But, if the strike goes on for a long time and results in irreparable economic harm to your business, the dismissal can be fair – BUT only if you place the court in a position where it can assess the harm.