Dismissing employees who embark on an unprotected strike

Should employees who embark on unprotected strike action be dismissed for commencing with a strike after being warned by their employer that the strike was unprotected and they would face disciplinary action for doing so?

SUMMARY

Employees who participate in an unprotected strike may be disciplined for doing so. However, this must be done in a fair and consistent manner.

Employees who have previously been disciplined for unlawful industrial action may not necessarily be dismissed for subsequently engaging in unlawful industrial action if the subsequent action is “materially different” from the previous action.

COURT’S DECISION

In SACCAWU obo Mokebe and Others v Pick ‘n Pay Retailers (JA36/16) [2017] ZALAC 55 (26 September 2017), Pick ‘n Pay (“the Employer”) and SACCAWU, the trade union representing the employees, were engaged in wage negotiations on a national level.

Following a breakdown in negotiations, SACCAWU issued a strike notice informing the Employer that a protected strike would commence at 19h00 on 24 September 2010. On 24 September, the employees at the Employer’s Woodmead store commenced their strike early, at 15h00.

Accordingly their strike action was unprotected. The Woodmead employees had been told by their shop steward that the strike would start at 15h00. A delay in SACCAWU giving the Employer the strike notice meant that the strike would only be protected from 19h00, being 48 hours from the time the strike notice was actually given to the Employer.

SACCAWU’s attempt to communicate the delayed start time to the Woodmead employees was unsuccessful. The store’s management warned the Woodmead employees that the strike could only commence at 19h00 but the employees said they had been told by SACCAWU that there would not be any consequences for them if they commenced the strike at 15h00. The Woodmead employees commenced their strike at 15h00. These employees were subsequently dismissed by the Employer for embarking on an unprotected strike.

The Labour Appeal Court (“LAC”) held that the employees’ dismissals were substantively and procedurally unfair. The Employer argued that the employees, who were already on a final written warning for similar prior misconduct, deliberately defied management’s instructions to return to work and showed no remorse for their misconduct.

The LAC however found that the employees did not deliberately defy management as they believed they were entitled to strike. The LAC took into account the following – management did not issue the employees with an ultimatum; management did not provide the employees with individual hearings as it had agreed to do; and the Employer had been inconsistent in how it dealt with industrial action.

In regards to the third point, the LAC found that the previous action for which the employees were given final written warnings was substantially different from the action for which they were dismissed. It was therefore unfair to impose “the next level of discipline”, i.e. dismissal, for the subsequent offence of a different nature. Furthermore, employees at other stores who also participated in the unprotected strike whilst on previous warnings for industrial action were not dismissed but were issued written warnings. Consequently, the LAC found the dismissals to be substantively and procedurally unfair.

IMPORTANCE OF THIS CASE

Employers must be consistent when applying company policies and discipline. Employers must adhere to the Code of Good Practice: Dismissals and adhere to the requirement of clause 3(6) which states – The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.

 

By Jacques van Wyk, Director at Werksmans Attorneys 

 

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