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What are the consequences of a protected strike?

by , 11 September 2013
Protected strike action in the motor retail sector - including petrol attendants, garage workers and the automobile components sector - entered its third day on today. And there's been mounting reports of intimidation at petrol stations, BDlive reports. Workers affiliated to the National Union of Metal Workers of South Africa (Numsa) downed tools on Monday over wages. If you think intimidation is the only thing you could face during strike action, you're wrong. Here are the other consequences of a protected strike.

Strike action is protected only if your employees comply with certain procedural requirements set by the Labour Relations Act (LRA.

While this may be the case, it doesn't mean you'll escape the n unpleasant consequences associated with protected strikes.

Revealed: The consequences of a protected strike action

The LRA regulates the consequences of a protected strike.

The first consequence is that your employee may not commit a delict (civil wrong) or breach an employment contract by participating in a protected strike, says the Labour Law for Managers Loose Leaf Service.

Accordingly, you can't institute civil proceedings against an employee who takes part in a protected strike.

Your employee also isn't entitled to remuneration during the strike on the basis of the principle 'no work no pay'.

But it's important to note that if your employees' remuneration includes payment in kind for accommodation, the provision of food and other basic amenities of life, you can't discontinue these payments while the strike persists.

After the strike, you can recover the monetary value of the payments in kind by instituting civil proceedings in Labour Court.

The most important consequence of a protected strike you need to know is that you can't dismiss your employee for his participation in the strike.

However, you can dismiss an employee for operational reasons while that employee participates in a protected strike, if genuine operational reasons exist, provided you comply with the LRA.

Are you allowed to dismiss a striking employee in these circumstances?

There's no hard and fast rule, but if the consequence of the strike is you lose business production to an extent where the financial health of your business is placed at risk, then you'll have commercial rationale for retrenchment, the Labour Law for Managers Loose Leaf Service explains.

One word of caution: Don't use the guise of operational requirements as a means of dismissing striking employees.
The reason for the retrenchment must be linked to genuine operational requirements of your business.

The Labour Appeal Court holds that employees may even be dismissed if the operational reason is a direct consequence of the strike itself.

Remember, even though a strike is protected, you can dismiss an employee for misconduct during the strike such as intimidation, violence or damage to property.

Knowing what the consequences of a protected strike are will help ensure you don't contravene labour law.

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