According to the Labour Law for Managers Loose Leaf Service, there are certain procedural requirements that must be complied with before your employees may embark upon a protected strike.
This means your employees:
Here's what you must do when employees embark on an unprotected strike
If your employees don't follow proper procedures, then their strike isn't protected which means they aren't protected from dismissal.
This means you can approach the Labour Court for an urgent interdict to prevent them from continuing with the strike. If employees continue to strike despite an interdict, you may start thinking about dismissal.
You don't have to first get an interdict before you consider dismissal, but it's best to do so as this places you in a stronger position to defend the fairness of the dismissal.
To effect a procedurally fair dismissal of striking employees, you are obliged to follow a fair procedure.
This means you must:
#1: Issue a written ultimatum to employees to return to work or face dismissal. The written ultimatum must be clear. You must ensure it's conveyed in a manner that the employees understand that they're being warned to return to work or face dismissal.
If the ultimatum is unclear as to the consequences and if the employees fail to adhere to it, then subsequent dismissals may be held to be unfair. It's not enough to threaten possible disciplinary action, as that's too vague.
The ultimatum must also be reasonable and if terms and conditions are attached they must be legal, for example, an ultimatum that striking employees must return to work and accept the employers offer in respect of a wage increment was held to be illegal.
In addition, you must ensure the written ultimatum is clear (conveyed in such a manner that the employees understand), you must translate the ultimatum where necessary and allow sufficient time for the employees to consider the ultimatum.
#2: Give your employees a hearing before you decide finally to dismiss. The Labour Appeal Court has held that it's enough to give your employees an ultimatum to return to work. If they don't adhere to the ultimatum, you must afford them a chance to be heard before you dismiss because there may be a good reason why they haven't adhered to the ultimatum. This doesn't need to necessarily be a formal hearing.
What's fair and reasonable will depend on the circumstances. It may be enough to write to the union and tell them that since the employees haven't adhered to the ultimatum you're considering dismissal and the union has 24 hours to make representations why you shouldn't dismiss.