Employees can lawfully strike over a reduction in income during COVID-19, subject to certain strict conditions. Failing compliance with these conditions they may face possible dismissal!
We have received numerous enquiries from clients regarding employees refusing to work in the wake of COVID-19. It is important from the outset to differentiate between a lawful refusal to work and a strike as the consequences are very different. A common scenario that has crept in is employees striking because they did not receive payment during the lockdown or in some cases because the TERS payment only covered a portion of their salaries. This should not be confused with employees refusing to work based on Health and Safety concerns as that would have different requirements and criteria.
Firstly, the definition of a strike in terms of section 213 of the Labour Relations Act (LRA):
“Strike” means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between an employer and an employee, and every reference to “Work” in this definition includes overtime work, whether it is voluntary or compulsory.”
That is quite a mouthful, however, certain principles immediately become apparent. Firstly, it requires that there is a “concerted” refusal to work. This means that one employee cannot go on strike, it needs to be more than one employee. The second important principle is that it must be for the purpose of remedying a grievance. This means that there must be a demand of some sort. “Mutual Interest” is a much-debated topic but for purposes hereof it will include everything the parties can bargain over such as increases as opposed to rights disputes which the employees are entitled to, in the contract of employment for example, and are therefore able to enforce by law. A “nice to have” benefit which they are trying to get the employer to give rather than the enforcement of a right to something they are already entitled to.
It is settled law that employees are not entitled to payment during the lockdown where they could not work and as such any payment made is not due to them by law and is in effect an ex-gratia payment. This can be bargained over. The UIF TERS payment is not calculated by the employer but by the UIF. This is not something they can bargain over however the shortfall between the TERS payment and their usual salary can be demanded from the employer – although there is no law forcing the employer to accede to such a demand. This does, therefore, constitute a matter of mutual interest.
So what if I have a number of employees demanding payment over and above TERS or they will not continue working? Now you have a strike on your hands. The question which then arises is whether this is a protected strike or unprotected strike.
Section 64 of the LRA deals specifically with the requirements for a strike to be protected – in other words – you cannot discipline employees for embarking on such a strike. In order for a strike to be protected, there must be a demand over a matter of mutual interest as already discussed. That demand must be unresolved. The employees must then, either personally or through the union, approach the CCMA. Only if the matter still remains unresolved after conciliation will the Commissioner issue a strike certificate which allows a strike to commence on a protected basis. The employees must then give at least 48 hours’ notice of the intended strike to the employer so that he may make arrangements for replacement labour. There may at this stage also be a notice of defensive lockout served on the employees. The parties must then allow the collective bargaining machine to take effect. Who can last longer – the employees without wages or the employer without his usual staff complement?
Employees who do not follow these specific steps will be deemed to have commenced an unprotected strike. The employer should immediately notify the Union that there is an unprotected strike at his workplace and give the employees an Ultimatum to return to work. If after the indicated timeframe on the Ultimatum the employees repeatedly refuses to return to work the employer will be able to charge the employees with “participation in an unprotected strike”. This is a serious offence and may lead to the dismissal of the employees in certain circumstances. The effect on the business would be an important aggravating factor, however, this will depend on the circumstances of each matter.
It is advised that you contact SEESA to assist from the moment the unprotected strike commences as we will be able to advise you step by step as the events unfold. Picketing outside the business is another matter altogether and it is now a requirement that before the CCMA will issue a strike certificate the parties will need to agree to the picketing rules applicable to the protected strike, such as designated areas, the number of picketers and the restrictions placed on the striking employees.
Where there is a Union in the workplace they will not usually sanction an unprotected strike and upon advising them of the strike they will call on their members to return to work so that they may follow the correct procedure. This is unfortunately not always the case, however. It is therefore important that you, as Manager or Business Owner, be aware of the requirements for a strike, the difference between a protected and unprotected strike and what your remedies are in those cases where work stoppage interferes with your operations. Employees embarking on an unprotected strike may cause disruption in your workplace but it may ultimately cost them their jobs. Employees often do not know that they are acting unlawfully as they have become accustomed to seeing striking workers on the news. They should, therefore, be informed of the consequences of their actions as soon as possible by way of the Ultimatum to return to work, in writing, as soon as practically possible after the commencement of the strike. This can also be done pre-emptively where you received information of a planned strike, however, you will only be able to discipline staff after the strike has commenced. Incitement to go on strike can be a separate disciplinary offence however this is often difficult to prove.
This must however not be confused with an employee who refuses to work based on Health and Safety concerns during the COVID-19 pandemic. An employee may refuse to perform any work if circumstances arise which with reasonable justification appear to that employee or to a health and safety representative to pose an imminent and serious risk of their exposure to COVID-19. In such cases the refusal to work is lawful in terms of the directives and an employee cannot be forced or disciplined for failure to do so.
Any questions regarding strikes can be directed to your nearest SEESA branch where a Legal Advisor will gladly assist you.
ABOUT THE AUTHOR:
Charl Vollgraaff obtained his LLB degree from the Nelson Mandela Metropolitan University in Port Elizabeth. After graduating, he commenced practical training through Legal Education & Development at NMMU. During this time he received a Lexis Nexis Award for Best Performance Nationally. After completing his articles at Greyvensteins Attorneys in Port Elizabeth he was admitted as an Attorney in 2010. He practised as a Civil Litigation and Commercial Attorney for 6 years post-admission before joining SEESA Labour in March 2016. He is also in the process of completing a Master’s Degree (LLM) in Labour Law.
Sources:
Labour Relations Act, 66 of 1995
Grogan, Workplace Law (2017)