Labour Lawyers in Midrand and the Basics of the Right to Strike in South Africa
With workers having the right to strike, the employer must ensure that the correct procedure is followed in dealing with strikes. For one, you cannot dismiss an employee for exercising their right to participate in a legal strike at your company. To this end, we highly recommend consulting with a labour lawyer in Midrand regarding your rights as an employer when it comes to employee strikes.
Origin of the Right to Strike
In South Africa, the relationship between employer and employee is governed by labour laws. The right to strike is based on the International Labour Organization Conventions 87 of 1948, as well as 98 of 1949, which South Africa also recognises. Indeed, the right to strike is a fundamental employee right in the country and is also stipulated in the South African Constitution.
You should seek legal guidance from our labour lawyers in Midrand before taking any action against striking workers. This is because the Labour Relations Act, Section 64(1) provides the employee with the right to strike, whilst it also provides the employer with the righty to lock out workers.
When Is a Strike Legal and Protected?
It is protected if it is on an issue that has been referred to the CCMA and for which a certificate has been issued to state that it is an unresolved dispute for 30 days or more. The workers must provide you, as the employer, with 48 hours’ notice of their intention to strike. This notice must be in writing. If the employer is the state, then the workers must give a written notice a minimum of seven days before the commencement of the strike.
What Is a Strike?
Section 213 of the Labour Relations Act describes a strike as the refusal to work or obstruction of work by employees. This can be partial or complete. The employees can be employed by one or more employers. They do this in order to have a grievance remedied or to have a dispute relevant to the employer and employee relationship resolved.
Implications for You as the Employer
As our labour lawyers in Midrand can explain, you may not employ replacement workers to maintain your business’s operations during the time of a protected strike, if it is to maintain the duties of the employees that are striking, unless you have executed a lockout as a response to an employee strike. Here, already, it becomes complex and it is best to discuss your right to lock out your employees with our labour lawyers in Midrand.
According to the Labour Relations Act, you do not have to pay the employees for the services that they have not given. It is, however, important to note that you may not withhold payment in kind for food, accommodation, or necessities of life. You can, however, with the help of a labour lawyer in Midrand, apply to the Labour Court to recover the money paid by means of civil proceedings once the strike is over.
You can dismiss employees for contemplating, furthering, or participating in an unprotected strike. To this end, seek legal guidance as to the correct procedure for dismissal. With several factors to consider before you dismiss employees and the correct disciplinary actions to follow, it is imperative that you understand when a strike is protected and when you cannot dismiss employees. Our labour lawyers in Midrand are available to provide legal guidance to ensure that you comply with all the relevant laws in dealing with striking workers.
To this end, call our labour lawyers on 011 234 2125 for guidance and assistance.
Disclaimer: This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.