19 August 2022
Employees participating in a protected strike are entitled to a certain extent of protection. An employer may not dismiss the employee for participating in a strike, nor does the employee’s actions constitute a breach of contract. The employer may further not discriminate against the employee for taking part in a strike and may also not claim compensation against the employee.
If an employer dismisses employees for participating in a protected strike, the dismissals would be automatically unfair, implying a more severe penalty than an ordinary unfair dismissal, namely, a maximum of 24 months’ salary may be awarded in the dismissed employee’s favour.
We pose the question; what happens when employees engage in unlawful conduct during a protected strike? Does the employer have any recourse?
In National Union of Metalworkers of South Africa obo Khanyile Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others [2019] ZACC 25, on the day the protected strike started, violence erupted. It involved setting alight the homes of a manager and a foreman, damaging several vehicles belonging to staff and visitors, stone-throwing, various forms of physical violence, throwing a petrol bomb on one occasion, blockading workplace entrances and theft of a camera used to record the violence.
Dunlop continued to dismiss the employees who took part in the strike for reasons relating to the employee's misconduct during the strike. At arbitration, the employees that were positively identified as committing violence and those that were identified as being present when the violence took place but did not participate were found to have been dismissed fairly.
Similarly, in Pailprint (Pty) Ltd v Lyster NO and Others (2019) 28 LAC 1.11.47 the Labour Appeal Court (“LAC“), whilst participating in a protected strike, employees were seen carrying sticks, a sjambok, a golf club and an axe. These items carried by the employees in the context were considered weapons. The employer regarded these acts as being in contravention of the employer’s picketing rules, and the employees were called to disciplinary hearings. Following disciplinary hearings, the employees were dismissed for the “brandishing or wielding of dangerous weapons during the strike”.
During arbitration at the CCMA, the arbitrator held that the employees “did not brandish or wield the weapons” but instead only carried them. The arbitrator held that neither the picketing policy nor disciplinary code indicated the consequences of the employees’ breach. The arbitrator found that the sanction of dismissal was inappropriate and substantively unfair.
The employer was dissatisfied with this award and brought a review application before the Labour Court. The Labour Court dismissed the review application, which led to the employer appealing to the Labour Appeal Court. The Labour Appeal Court set aside the arbitrator’s award and found that the dismissals had been substantively fair.
It is clear from the above that it is entirely reasonable for an employer to expect protected industrial action to be accompanied by orderly conduct by those employees who have embarked on such industrial action. An employer is not precluded from fairly dismissing an employee in terms of the LRA for a reason related to the employee’s misconduct during a strike.
Moreover, the employer may lay criminal charges against employees and institute civil proceedings to recover any loss incurred. If an employer dismisses employees engaged in a protected strike based on their misconduct during the strike, the employer must ensure that pre-dismissal procedures are followed.
Employers must have an expert guiding hand to assist them when they encounter employee misconduct during a strike. Invictus can provide employers with assistance throughout the entire process.
Contact Invictus on 0861 737 263 for us to assist you.
