Strikes can cause havoc in the work place and strain the relationship between employers and employees. Sometimes they are legal and the outcome of not reaching consensus on a dispute. Sometimes they are illegal and the result of impatience on the part of the employees. But all too often, strikes can become emotional for both parties.
A legal strike is where employees have referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) and if the dispute is unresolved, the union gives the employer 48 hours’ notice to go on strike.
An employer may also give notice of their intention to “lock out” (lock the employees out of the work premises) preventing them from working.
If employees are involved in misconduct during the strike, an employer may obtain an interdict prohibiting the misconduct (such as intimidating customers or other employees wanting to work). The interdict can and should also prevent them from coming within a reasonable distance of the place of work – anywhere between 100 – 300m.
Illegal strikes are where employees fail to refer the matter to the CCMA and simply enter into a “wildcat strike”. In such circumstances, an employer must notify the employees verbally and in writing via an ultimatum that their behaviour is:
(a) Unlawful and unprotected;
(b) Causing severe prejudice to the employer; and
(c) Going to result in the termination of their employment.
The ultimatum must be in English and in their home language. We recommend 3 consecutive notices. The last of these notices will be a final ultimatum warning them that if they do not return to work, their employment will be terminated.
Employees must face a disciplinary enquiry after an illegal strike with the appropriate penalty imposed.
If you require further information or assistance with a strike action, please do not hesitate to contact McCarthy & Associates Attorneys on (033) 266 6170 or admin@mccarthylaw.co.za.