South Africa: Getting The Balance Right: The Restrictions On Protected Strikes In SA

Over the last decade or so, the South African economic environment has consistently been subjected to large, industry-wide strikes. Unfortunately these strikes have, from time to time, been plagued by violence, destruction, coercion and intimidation.

From a legal perspective, it is important to note that certain requirements need to be met for a strike to be protected. Even then, there are also inherent restrictions incumbent upon employees participating in such strikes.

The legal recognition afforded to a protected strike by no means affords employees or trade unions a "blank cheque" to participate in any and all forms of conduct which could force the employer to accede to their demands. There are substantial restrictions imposed upon strikers and the transgression of such restrictions can, and do, have serious implications for all parties involved. These restrictions must be seen as a necessary adjunct to the fundamental right to strike entrenched within section 23(2)(c) of the Constitution of the Republic of South Africa and highlighted in international labour organization agreements. A legitimate balance needs to be maintained between employer, employee and trade union to ensure economic viability and an employment relationship built upon trust and mutual beneficence.

Section 213 of the Labour Relations Act (LRA) defines a strike as, "the partial or complete refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employees, for the purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to work in this definition includes overtime work, whether it is voluntary or compulsory".

Thus in order for action to constitute a strike it must meet the following requirements:

• it must consist of a partial or complete refusal to work (therefore obstruction of work, such as so called "go-slows", will constitute strike action in terms of the LRA);
• such action must be aimed at remedying a grievance or resolving a dispute of mutual interest to both parties; and
• it must be a collective undertaking (it is not possible for one employee to embark upon a strike).

Prior to engaging in strike action, employees are obligated to follow the procedure set out in section 64 of the LRA. Failure to do so may result in the strike being declared unprotected. Striking employees may then legitimately be dismissed for participating in the strike, provided the correct procedure is followed and that this action is deemed to be fair in the circumstances. Section 64 provides that, generally, the strike will only be protected if:

• the issue in dispute has been referred to a bargaining council or the Commission for Conciliation, Mediation and Arbitration (CCMA);
• a certificate stating that the dispute has been unresolved is issued or a period of 30 days has elapsed since the CCMA has received the referral of the dispute; and
• the employer has been given 48 hours notice of the strike.

If this procedure is followed and the strike is deemed to be protected, striking employees are afforded various protective safeguards. The most fundamental of which is that an employee may not be dismissed for engaging in the strike. In addition, section 67 of the LRA provides that employees may not be held civilly or criminally liable for participating in a strike.

However, this provision should be read carefully and in the context of the section as a whole. It does not exempt employees from civil or criminal liability for acts which fall outside of the purview of protection afforded by the LRA. An employee may still be held liable for acts of misconduct that transcend the legitimate bounds of protection bestowed upon the employee. Thus an employee may not be held civilly liable for loss of revenue incurred by his or her employer due to his or her absence. He or she may, however, be held liable if he or she were to burn down a warehouse. In this regard, section 67(5) of the LRA provides that nothing prevents an employer from fairly dismissing an employee for a reason related to the employee's conduct during the strike or for a reason related to the employee's operational requirements.

Thus, employees may be dismissed for misconduct committed during a strike. In such instances the normal requirements pertaining to dismissal for misconduct contained within the LRA and the Code of Good Conduct: Dismissal will apply in that the dismissal must be both procedurally and substantively fair. As such the importance of consistency in discipline is pivotal. An employer must avoid selectively dismissing specified employees for misconduct when a number of other employees have engaged in substantially similar misconduct, unless a valid reason exists for so doing.

In South Africa, strikes are necessary mechanisms available to employees to balance the inherently unequal bargaining power intrinsic to the employment relationship. Strikes are effective because they place employers under significant financial pressure. However if the employer suffers irreparable economic harm due to a strike, it may have no alternative but to retrench a portion of the workforce. Provided that the correct procedure is followed, and that there are legitimate, substantive grounds for doing so, the employer could be entitled to embark upon this course of action.

In the course of a strike, employers retain their own set of rights. They may react by "locking out" striking employees. This effectively prohibits employees from entering the employer's business premises. The principle "no work, no pay" is obviously also applicable during the strike.

In conclusion, it is evident that there are a number of restrictions imposed upon both employers and employees during strike actions. However, all stakeholders should tread carefully. They need to take cognisance of both the restrictions imposed on, and the consequences applicable to, non-compliance with the various restrictions. Furthermore misconduct perpetrated during strike action does nothing to improve the relationship between the employer and the employees. On the contrary, it could expose the perpetrators to disciplinary consequences and could result in a loss of sympathy for the plight of workers who are themselves adhering to their legal obligations as part of the strike action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.