PROTECTED VERSUS UNPROTECTED STRIKES.

Written by Carina Goncalves

It was Monday morning at a busy establishment in the Hairdressing, Cosmetology, Beauty and Skincare Industry. The usual sounds of hairdryers, conversations and clients coming and going had been replaced by quiet discussions among the employees.

For months, the employees had been unhappy about their wages and working conditions. They had raised their concerns with management and attended meetings, hoping that a solution could be found. But after several discussions, they felt that they were no closer to an agreement.

One employee finally said what many of them had been thinking:

“We have spoken enough. It is time to strike.”

The employees agreed.

For the employer, this created an important responsibility. Before responding to the employees’ decision, management needed to understand the reason for the proposed strike, whether the legal requirements had been followed and what steps could lawfully be taken.

But before the employees put down their tools and walked out, there was one question they needed to answer:

Would their strike be protected or unprotected?

This is an important question for every employer to understand. It is also important for employees. South African law recognises the right of employees to strike, but that right is not without rules. The Labour Relations Act 66 of 1995 (LRA) sets out the process that must generally be followed before employees can embark on protected strike action.

A grievance may be genuine, but that does not automatically make a strike protected.

The road to a protected strike

In this case, the employees were demanding a wage increase. This is generally a matter of mutual interest because they were seeking to change their employment conditions.

The first step was therefore to use the collective bargaining and dispute-resolution process.

In the Hairdressing, Cosmetology, Beauty and Skincare Industry, the dispute may need to be dealt with through the National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry, where the establishment and the parties fall within the Council’s registered scope. If the Council does not have jurisdiction, the dispute may need to be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA). The applicable collective agreement must also be checked.

The purpose of this process is to give the parties an opportunity to resolve the dispute before industrial action takes place.

From an employer’s perspective, it is important to keep a record of the employees’ concerns, meetings held, proposals made and any attempts to resolve the dispute. These records may assist in establishing what occurred if the matter later proceeds to the bargaining council, the CCMA or the Labour Court.

The employees referred their dispute to the National Bargaining Council for Hairdressing, Cosmetology, Beauty and Skincare or, where applicable, the CCMA. Conciliation took place, but the matter remained unresolved.

In terms of the LRA, employees generally need a certificate stating that the dispute remains unresolved, or the required period must have elapsed from the date on which the dispute was referred. The employees must also comply with any applicable collective agreement and give the required written notice before a strike begins.

The right to strike may also be limited by section 65 of the LRA. For example, a collective agreement, arbitration agreement, arbitration award or other legal arrangement may regulate or prohibit strike action in relation to the issue in dispute. Restrictions may also apply to employees working in an essential or maintenance service.

Only after the relevant requirements had been satisfied and the necessary notice had been given could the employees lawfully proceed with their strike.

They had reached the point where they could put down their tools.

This was a protected strike.

For the employer, this meant that the employees’ participation in the protected strike itself could not simply be treated as misconduct. Management still had to ensure that the establishment operated safely, that clients and employees were protected and that any misconduct was addressed separately from the lawful participation in the strike.

What does a protected strike mean?

A protected strike is industrial action that complies with the applicable requirements of the LRA.

Section 67 of the LRA provides important protection to employees who participate in protected strike action. An employee may not be dismissed merely because they participated in a protected strike. Participation in the protected strike itself does not constitute a breach of the employment contract.

In other words, where the employee is exercising the right to participate in lawful protected industrial action, participation in the strike itself does not automatically justify dismissal.

For employers, this distinction is important. An employer should not threaten employees with dismissal simply because they are participating in a protected strike. The employer must first establish whether the strike is protected and whether any separate misconduct has occurred.

But there is an important misunderstanding that employees sometimes have.

A protected strike does not mean that employees will be paid.

The employees were informed that while their strike was protected, they would generally not receive their normal wages for the period during which they were not working.

The principle is commonly described as:

No work, no pay.

As a general rule, employees are not entitled to remuneration for work they do not perform during a strike. This principle may be affected by an applicable collective agreement or another agreement between the parties.

The fact that a strike is protected provides employees with certain legal protections. It does not mean that employees are entitled to remuneration for work that they did not perform.

This distinction is important for employers when managing payroll during a strike. Any deduction must still be handled accurately and in accordance with the applicable agreement and legal requirements.

An employee may be protected from dismissal merely because they participated in a protected strike, while at the same time receiving no remuneration for the period of the strike.

Protection from dismissal and entitlement to payment are two different things.

When a protected strike goes too far

By Wednesday, the situation at the establishment had changed.

Most employees were participating peacefully. However, some employees became angry when other employees decided not to participate in the strike and continued working.

Words were exchanged.

Some striking employees began intimidating those who wanted to work. One employee threatened the manager, while another damaged property belonging to the establishment.

Management was confronted with an important question:

“If the strike is protected, are the employees protected from disciplinary action?”

The answer is no.

A protected strike protects the lawful exercise of the right to strike. It does not protect employees from the consequences of misconduct.

Violence, intimidation, assault, threats, damage to property and other forms of misconduct cannot simply be justified by saying that the employee was participating in a protected strike.

The strike may be protected.

The misconduct is not.

An employer may therefore consider disciplinary action where employees engage in misconduct during a strike. The employer must still investigate the allegations, preserve relevant evidence, give the employees an opportunity to respond and follow a fair disciplinary process.

The fact that misconduct occurred during a protected strike does not make disciplinary action or dismissal automatic. The seriousness of the conduct, the evidence available and the employee’s individual circumstances must be considered.

Employers should also distinguish between lawful participation in a strike and conduct that threatens the safety of employees, clients, managers or property at the establishment. Any response should be directed at the conduct that is alleged and should not be based only on an employee’s decision to participate in the strike.

Unprotected strike

Now imagine a different group of employees.

They have the same concerns about wages and working conditions. They are frustrated and believe that management is not listening.

But this time, the employees decide that they are not prepared to wait.

They do not refer the dispute through the appropriate process. They do not follow the applicable dispute-resolution requirements and do not give the required notice.

They also do not check whether a collective agreement, arbitration agreement or other legal restriction affects their right to strike.

On Monday morning, they simply stop working.

When management asks what is happening, one employee responds:

“We are on strike.”

The employees may have a genuine grievance.

They may even have good reasons for being unhappy.

But a genuine grievance does not automatically make their strike protected.

Where the requirements of the LRA have not been complied with, the strike may be unprotected. The position must be assessed against the facts of the dispute, the LRA and any applicable collective agreement governing the establishment.

For the employer, the first response should not be based on anger or assumption.

Management should establish what the dispute is about, ask whether a trade union or employee representatives are involved, check the applicable bargaining-council requirements and obtain appropriate advice where necessary.

Why does an unprotected strike matter?

The difference can be significant.

Employees participating in an unprotected strike do not enjoy the same statutory protection that applies to employees participating in a protected strike.

Depending on the circumstances, the employer may apply to the Labour Court for an order restraining the strike and may consider other remedies available in law. Other legal consequences may also arise, depending on the conduct of the parties and the harm caused.

The employer may take disciplinary action against employees who refuse to return to work.

Dismissal can become a possibility, but it is important to remember:

An unprotected strike does not mean automatic dismissal.

Participation in a strike that does not comply with Chapter IV of the LRA may constitute misconduct, but dismissal must still be substantively and procedurally fair. The circumstances surrounding the strike must be considered.

For example:

• Were employees aware that the strike was unprotected?

• Had the employer attempted to resolve the dispute?

• Were employees informed of the consequences?

• Did the employees attempt to comply with the LRA?

• Was the strike in response to unlawful, unfair or unreasonable conduct by the employer?

• Were employees given a reasonable opportunity to return to work?

• What was the duration and effect of the strike?

• Was any violence, intimidation or other misconduct involved?

These questions can become important when assessing the fairness of any disciplinary action.

They are also important reminders to employers that the correct response is a process, not an immediate reaction.

The importance of an ultimatum

Imagine that management discovers that the employees are participating in an unprotected strike.

Rather than immediately dismissing the employees, management explains the situation.

The employees are informed that the strike is unprotected and are instructed to return to work.

An ultimatum is issued.

The ultimatum clearly states what the employees are required to do and explains the possible consequences if they fail to comply. The employees are given a reasonable opportunity to consider the ultimatum and to return to work.

Where a recognised trade union is involved, the employer should contact a trade union official at the earliest opportunity to discuss the intended course of action. If no trade union is involved, the employer should engage directly with the leaders or representatives of the striking employees where possible.

Some employees return.

Others refuse.

The employer now has evidence that the employees were informed of the position and were given an opportunity to return to work. However, this does not automatically mean that dismissal will be fair.

An ultimatum is an important part of the process, but it is not a guarantee that a later dismissal will be fair. The employer must still consider the seriousness of the contravention, the legitimacy of the employees’ demands, the duration and timing of the strike, the harm caused and the conduct of the parties.

The ultimatum should be clear and unambiguous. It should state what the employees are required to do and what sanction may follow if they do not comply. Employees should be allowed sufficient time to reflect on the ultimatum and respond to it.

Employees who comply with the ultimatum and return to work within the stipulated period should not automatically be treated in the same way as employees who reject the ultimatum.

For employers, the message is clear:

Do not act out of anger. Follow a proper process and document what happens.

Two strikes, two different legal positions

Before responding to a strike, employers should stop and ask:

• What exactly is the dispute?

• Is it a dispute of right or a matter of mutual interest?

• Has the dispute been referred to the appropriate bargaining council or the CCMA?

• Does the National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry have jurisdiction?

• Has the required conciliation process taken place?

• Has the required period elapsed, or has a certificate of non-resolution been issued?

• Has the necessary notice been given?

• Is there a collective agreement that affects the right to strike?

• Does section 65 of the LRA limit the right to strike?

• Are there any essential or maintenance service restrictions?

• Will the strike and any picketing be conducted peacefully?

• Are there safety, security, client-service or property concerns at the establishment?

• Has the employer communicated clearly with employees?

• Has the employer documented the steps taken to resolve the dispute?

Employers should establish the reason for the strike, whether the required procedures have been followed, whether the strike is affected by a collective agreement or section 65 of the LRA, and whether the industrial action is protected or unprotected.

They should also avoid making assumptions about individual employees. An employer should distinguish between employees who participate peacefully, employees who return to work and employees who engage in intimidation, violence, threats, damage to property or other misconduct.

Employees should also understand their position before joining a strike. They should ask:

• What exactly is the dispute?

• Has the dispute been referred to the appropriate body?

• Has the required conciliation process taken place?

• Has the necessary notice been given?

• Is the strike affected by a collective agreement or section 65 of the LRA?

• Will the strike be conducted peacefully?

  
  

The lesson

A strike is a powerful tool in collective bargaining, but it comes with responsibilities.

A protected strike gives employees important legal protection when they exercise their right to strike in accordance with the law. However, it does not generally mean that employees are paid while they are not working, and it does not protect misconduct.

An unprotected strike can expose employees to disciplinary and other legal consequences.

However, employers must still respond fairly, follow due process and consider the circumstances before deciding on an appropriate response.

For employers, the lesson is clear:

Do not react before establishing whether the strike is protected or unprotected and what the law requires you to do.

Check the applicable collective agreement. Confirm the dispute-resolution process.

Communicate with employees and, where applicable, the trade union. Keep proper records.

Address misconduct separately from lawful strike participation. If an ultimatum or disciplinary action is necessary, ensure that the process is clear, fair and properly documented.

For employees, the lesson is simple:

Do not put down your tools until you know whether your strike is protected.

Ultimately, protected and unprotected strikes are not simply about choosing to work or choosing to strike.

They are about understanding the rights of employees, the responsibilities of employers and, most importantly, following the correct process.

So, before the next employee says:

“We are going on strike,”

\there is one question that should be asked first:

“Have we followed the law?”