Jun 6,2013 / News / E-Bulletin

ISSUE IN DISPUTE

Whether the dismissal of a number of employees engaged in an unlawful strike was unjustified notwithstanding the employer’s compliance with procedural requirements.

COURT’S DECISION

In the case of Chemical, Energy, Paper, Printing, Wood & Allied Workers’ Union and others v CTP Ltd and another[1], a number of employees engaged in strike action. The employees had attempted to comply with the provisions of the Labour Relations Act 66 of 1995, as amended, (“LRA”) but had neglected to comply with one procedural element thereof. As a result the strike was found to be unlawful. The employer therefore dismissed a number of striking employees.

The court held that the dismissal of employees who engage in unlawful strikes is not always the appropriate sanction. Rather, in determining whether dismissal is justified in any particular instance, regard must be had to the gravity of the contravention of the disciplinary rule; an enquiry into the consistency of the application of discipline; and enquiry into factors which may justify a different outcome. In the case of dismissals of employees who engaged in an unlawful strike, further regard should be had to the seriousness of the non-compliance with the provisions of the LRA; attempts made by the striking employees to comply with the LRA; and whether or not the strike was in response to unjustified conduct by the employer.

In this case, as there had been an attempt by the employees to comply with provisions of the LRA and their non-compliance was minor, it was found the dismissals were not substantively justified. The court emphasized that issues such as a corrective approach to discipline, consistency in discipline and the particular circumstances of the matter played an important role in determining whether the dismissal of unlawful strikers was fair.

IMPORTANCE

The same test applies to the dismissal of unlawful strikers as applies in all other circumstances of misconduct.


[1] Chemical, Energy, Paper, Printing, Wood & Allied Workers’ Union and others v CTP Ltd and another [2013] 4 BLLR 378 (LC).