South Africa: The dismissal of employees engaged in an unprotected strike action is fair

On 9 September 2021, the Labour Appeal Court of South Africa, Johannesburg, rules over fairness of dismissal of employees embarking on an unprotected strike.

The decision is based on the serious and dangerous circumstances of the strike.
The Court of Appeal reformed the decision of the Labour Court (Lagrange J) delivered on 17 September 2019, which had found the dismissal of the respondent employees to be substantively unfair and ordered their reinstatement.
Instead, the sanction of dismissal, according to the Court of Appeal, was fair, given the circumstances of the case and considering their decision to embark on an unprotected strike action at a critical business period and their persistent refusal, without bona fide reason provided, to comply with the ultimatum.

The decision addresses the issue of the scope and limits of the right to strike.

The Constitution of the Republic of South Africa affords all employees the right to strike, as well as collective bargaining. LRA sets out the requirements for a strike to be legal and therefore enjoy the protection of the LRA. Industrial action that does not comply with the requirements set out in the LRA will be deemed an unprotected strike.

Participation in an unprotected strike amounts to misconduct and may justify dismissal.

The dismissal must be substantively and procedurally fair:

Substantive fairness: it must be evaluated in the light of the facts of the case, such as: the seriousness of the failure to comply with the provisions of the LRA, the attempts the employees had made to comply with the LRA and whether or not the strike was in response to unjustified conduct on the part of the employer.
Procedural fairness: it rests on the following three pillars:

Contact with the union, informing of its members’ action and requesting to address and exhort the members not to continue with the strike action;
Issuing of an ultimatum to every employee to return to work. This ultimatum should clearly describe the demand of the employee, what is required from them, and by which date they will be required to return to work. The ultimatum should also clearly state that they have embarked on an unprotected strike action and that it may lead to their dismissal;
a hearing to let employees to state their version of events.

Dismissal has been found to be an appropriate sanction where an unprotected strike was planned to create maximum pressure on an employer or to undermine the authority of the employer or where there had been an ultimatum issued, and the employees had refused to return to work, like in the decision we are reporting on.

In the case of Association of Mineworkers and Construction Union obo Rantho and others v Samancor Western Chrome Mines [2021] 3 BLLR 236 (LAC) (1 October 2020), the dismissal of striking employees who complied with an ultimatum to cease striking and return to work was declared unfair.

This is a very sensitive and important issue, especially for a developing country like South Africa, where violent strikes and their duration can affect the growth of the economy.