Dismissal of striking staff

For three to four weeks the employees in the public service were engaged in a strike.

For three to four weeks the employees in the public service were engaged in a strike.

The strike was generally a protected one. But according to the employer, there were employees who were not supposed to take part in this strike because they provide an essential service to the public.

Section 65 of the Labour Relations Act (LRA) prohibits any person who is engaged in an essential service from taking part in a strike.

The employer obtained a court order declaring the strike illegal, which applied to workers rendering an essential service.

Armed with the court order, the employer gave the essential service employees an ultimatum to return to work or face dismissal. Ultimately employees who did not return to work after the ultimatum was given were dismissed.

The million dollar question is whether or not the dismissal of those employees is fair.

In terms of section 188 of the LRA, a dismissal is unfair if the reason for dismissal is not just ( for example, misconduct, capacity or operational requirements) and the procedure is not fair.

Taking part in an unprotected strike may constitute an act of misconduct, which may result in an employee being dismissed. But a fair procedure must be followed before an employee may be dismissed for such misconduct.

The fair procedure requires that an employee is given a hearing (this is expressed as the audi alterum parterm principle) before an action that affects his/her rights is taken against him/her.

There is absolutely no reason why this principle should not apply to the employees who embark on an unprotected strike. The ultimatum given to the striking employees to return to work and the audi alterum paterm rule are not one and the same thing. Put differently, the ultimatum is not an element of a fair procedure.

There may be grounds that may justify the employer's failure to grant employees a hearing. But an ultimatum is not a justifiable ground.

Therefore, a dismissal of strikers without a hearing may be found to be unfair. There must be at least an invitation either to the trade unions or the employer concerned to make presentation before a dismissal can take place. The hearing does not have to be an individual hearing but a collective hearing may be sufficient.