Over the past few months, the South African employment climate has been hit by a wave of strikes. But what is a strike? It is legal or illegal? Are there consequences and does an employer have any remedies?

Both the Constitution and the Labour Relations Act 66 of 1995 provides for protection of workers who engage in strike action. However, there are certain requirements that must be satisfied in order for a strike to be seen as a “protected strike”. In addition, there are repercussions that both employers and employees should be mindful of should a strike action not be protected.

At the outset it should be noted that the right to strike is constitutionally enshrined in Section 23 of the Bill of Rights. Additionally, the Labour Relations Act 66 of 1995 (the “LRA”) provides statutory protection to the Constitutional right to strike and regulates the right to strike. Section 65 of the LRA on the other hand establishes important limitations on the right to strike and and the LRA distinguishes between two different forms of strike action, namely, a protected strike and an unprotected strike.

The basic principle in identifying a protected strike from an unprotected strike is that the former meets the requirements of the LRA, and the latter does not. That said, there is still general confusion as to what the media often refers to as an “illegal strike,” creating the impression that the strike is against the law and criminal conduct. From a legal point of view, if a worker partakes in an unprotected strike, he will not suffer criminal repercussions due to his involvement therein, but may face disciplinary action by his employer.

The requirements for a protected strike in terms of the LRA are the following:

• before the strike, the issue in dispute must have been referred to a Bargaining Council or the Commission for Conciliation, Mediation and Arbitration (CCMA);
• a certificate stating that the dispute has been unresolved must have been issued or a period of 30 days must have passed since the Bargaining Council or CCMA received the referral of the dispute;  and after that,
• the employer has been given 48 hours’ written notice of the commencement of the proposed strike.

If the above-mentioned requirements are not met, then the strike action will be classified as unprotected. This will provide an employer the opportunity to institute disciplinary action against any employee participating in the unprotected strike in terms of the Schedule 8, Code of Good Practice of the LRA. The Code of Good Practice clearly stipulates that participation in an unprotected strike constitutes misconduct, which may lead to a participant’s dismissal. However, this is not a hard-and-fast rule, as the employer must determine misconduct in both a procedural and substantively fair manner.

The employer is accordingly required to consider the following factors in evaluating the appropriate disciplinary sanction:

• the seriousness of the contravention of the LRA;
• the attempts made to comply with the LRA; and
• whether or not the strike was in response to unjustified conduct by the employer.

It is also imperative in terms of Item 6(2) of the Code of Good Practice that prior to dismissal, the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to take. The employer should issue an ultimatum in clear and unambiguous terms that should stipulate what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. Only if the employer cannot reasonably be expected to extend these steps to the employees in question, can the employer dispense with these requirements.

Workers who engage in a protected strike action may not be dismissed by the employer for their participation. However, they are not exempt from facing disciplinary action by the employer for acts of misconduct committed during the strike. Irrespective of whether a strike is protected or not, during the strike the employer is not obliged to pay its workers, and retains the right to effectively “lock out” the participating employees from the work premises.

The LRA spells out the various obligations and potential consequences for both employers and employees during a strike action. Before considering any action as employer or employee, it is accordingly advisable that parties acquaint themselves with their respective statutory obligations before embarking on any strike action or considering sanctions following a strike action at the workplace.