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Unprotected strikes: Consider these 3 factors to ensure your dismissals are fair

by , 29 March 2016
Workers from the Johannesburg-based waste-management service, PIKITUP, have been on strike for about a month now. And despite:

· the Labour Court ruling the strike as unprotected;
· Two court interdicts requesting them to return to work; and
· Notices of dismissal; they have remained unmoved.

But it appears that enough is enough!

As has been reported, those workers will now be facing disciplinary charges. This is a fact which Parks Tau, the mayor of Jo'burg city, made very clear in a recent statement.

Many workers will now be made to appear before a hearing, in which they'll be charged with gross misconduct during the illegal strike.

Now, as an employer, put yourself in PIKITUP's position. Let's say your employees are illegally striking. You've produced ultimatums, and you've notified the union of possible dismissals should the workers continue to flaunt the requirements of the ultimatum, and yet they still
won't budge and return to work.

What can you do?

Well, the answer would seem simple: Dismissal!

Now, while that may be true, the fact of the matter is that a dismissal around an unprotected strike can still be regarded as unfair!

So before acting upon your intentions to dismiss, first consider the following 3 factors to ensure that they'll be fair in the eyes of the law…

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Factor#1: The seriousness of the contravention of the Labour Relations Act (LRA)

For example, the Labour Court will show much less understanding towards workers if they show complete disregard towards the LRA, along with its procedures.

Factor#2: Attempts made to comply with the LRA          

If the employees really do believe that their strike was legal, then the Court will show more understanding to them.

For example, if their strike was deemed illegal because of a small, but decisive, technicality in terms of procedure, and the employees were unaware of this, they'll be more empathetic towards their cause.

Factor#3: If the strike is a response to your unreasonable actions

The Court will look at your conduct, around the dismissals, in order to determine their fairness.

For example, if you refuse to discuss the reasons for the strike with your employees, your dismissal could be seen as unfair, even though the strike was unprotected.

But employees can't justify an unprotected strike because you refused to accept their wage demands.
 

*To learn more important details regarding a dismissal's fairness over an unprotected strike, page over to Chapter S 02 in your Labour Law for Managers handbook, or click here to order your copy today. 


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