Labour Relations Act, 1995 (Act No. 66 of 1995)Codes of Good PracticeDismissal based on Operational RequirementsSchedule 8Part D - Misconduct12. Dismissals and industrial action |
| (1) | Participation in a strike that does not comply with the provisions of chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including— |
| (a) | the seriousness of the contravention of this Act; |
| (b) | attempts made to comply with the Act; and |
| (c) | whether the strike was in response to unlawful, unfair, or unreasonable conduct by the employer. |
| (2) | Factors relevant to assessing the seriousness of the contravention include— |
| (a) | the conduct of the parties to the dispute related to the strike and the conduct by any other person that has a bearing on the seriousness of the contravention; |
| (b) | the legitimacy of the strikers' demands; |
| (c) | the duration and timing of the strike; and |
| (d) | the harm caused by the strike. |
| (3) | The process before dismissal should include the following— |
| (a) | The employer should, at the earliest opportunity, contact a trade union official to inform the trade union about the strike so as to afford the trade union an opportunity to consult with the striking employees. |
| (b) | The employer should consider representations by the official and discuss the course of action it intends to adopt with the trade union. |
| (c) | If there is no trade union involved, the employer should seek to engage with leaders or representatives of the striking employees. |
| (d) | The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. |
| (e) | The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. |
| (f) | If an employer issues an ultimatum to employees engaged in an unprotected strike, it may not be fair to dismiss employees for participation in that strike who obey the ultimatum and return to work within the stipulated period. |
| (g) | If participating employees reject an ultimatum, the employer may dismiss the employees after considering the conduct and any representations of the employees in accordance with the provisions of this Code. |
| (h) | In cases of collective misconduct, the employer may, depending on the circumstances, satisfy the requirements of procedural fairness by calling for collective representations. |
| (i) | If the employer cannot reasonably be expected to extend any of these steps to the employees in question, the employer may dispense with them. |