You can in certain instances be dismissed for striking

MBOMBELA – The Labour Relations Act (LRA) distinguishes between protected and unprotected strikes, where you can be dismissed for not adhering to certain guidelines when exercising your right to strike.

A strike is defined as the partial or complete refusal to work, or go-slows, by employees, for the purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee.

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To organize a protected strike as provided by the LRA, all employees contemplating protest action must follow the prescribed statutory regulations. Firstly the issue in dispute must be referred for conciliation to the CCMA or a bargaining council having jurisdiction. The employees may not strike until the council or the commissioner has certified that the parties have been unable to resolve the dispute, or if 30 days have passed since the date of referral, whichever occurs first.

Dismissal of an employee for participating in a protected strike is automatically unfair. However participants who followed the guidelines may be dismissed for misconduct, for example, the damaging of company property during the strike.

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Picketing, for example, is expressly permitted by the LRA, but as a rule must be peaceful. A registered trade union may organize a picket by its members in support of a protected strike. A picket is a demonstration designed to show the public the reason for the strike, and to mobilize support for the strikers cause. It usually takes place in the form of meetings near the employer’s premises, and may be accompanied by verbal and written messages. Struggle songs, picketing posters expressing their grievances and dancing are all methods utilized to express the strikers message.

The general approach of the LRA is to protect employees participating in a strike from the normal consequences of refusing to work in the workplace. In return, an employer is not obliged to remunerate employees during a protected strike. An employer may use replacement labour during protected strikes to curb serious financial losses during such strike. Dismissal may only be employed in exceptional circumstances when operational requirements dictates its use.

When an employer retrenches strikers, however, it does so not because the employees concerned have engaged in the act of striking, but because it suffered irreparable financial losses, which requires the employer to reduce staff to avoid liquidation.

If you are dismissed for participating in a protected strike, you can submit your complaint in writing, within 30 days from date of dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA).

For further information, you can submit your enquiries to the CCMA Nelspruit regional office, at 25 Samora Machel Drive, Sanlam Centre Building, Seventh Floor, Nelspruit, with contact number: 013-752-2155.