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Employers: another strike warning from our Courts

Wordle_002Last month we considered the case of a trade union fined R500,000 for contempt of court after it failed to take sufficient steps to dissuade and prevent its members from continuing with “violent and unlawful actions” during a strike. This month we turn to the other side of the coin – the very strong protections which our law affords to employees who lawfully exercise their right to strike.

In a nutshell, any dismissal of strikers will be automatically unfair “once it has been established that their participation in the strike was the ‘main’ or ‘dominant’, or ‘proximate’, or ‘most likely’ cause of the dismissal”. And our courts show no mercy to employers found guilty of any automatically unfair dismissal.

A recent Labour Court decision illustrates the point. A security industry employer had, following disciplinary hearings, dismissed employees who were absent from work without permission during a protected national strike. The employer claimed that the reason for dismissal was not participation in the strike, but rather a breach of its disciplinary code prohibiting unauthorised absence from work – specifically the code recommended dismissal if three consecutive shifts were missed. It was, said the employer, up to the employees to appeal their dismissals and explain that they were participating in a protected strike, in which event they would have been reinstated.

The employer penalised

Not so, held the Court. Finding that “the real or proximate cause for the applicants’ absence from work, and thus for their dismissal, was their participation in the national protected strike”, the Court held their dismissals to be automatically unfair. It awarded substantial (15 month) compensation payments to the dismissed employees, commenting that in cases of automatically unfair dismissal a compensation award goes beyond damages or monetary loss. It is also designed “to send a clear message to all employers, who may be tempted to dismiss employees for any of the prohibited reasons, that such conduct is totally unacceptable and would be met with severe disapproval by this court.”

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