In the heart of Tshwane, a seven-week-long municipal strike has brought the city to a standstill, raising complex legal questions regarding the rights of both unions and employers. Central to this dispute is the question: Can unions legally force the City of Tshwane to reinstate the 122 employees dismissed due to their participation in the strike, and can this be achieved through legal channels like the Labour Court or CCMA?
Understanding the Concept of Unprotected Strikes
To grasp the situation fully, it is essential to comprehend the concept of an “unprotected strike” under South African labour law. Section 23 of the Constitution of the Republic of South Africa 108 of 1996 grants all employees the right to strike. However, this right is subject to specific requirements outlined in Section 64 of the Labour Relations Act (LRA). To be deemed a lawful and protected strike, the issue in dispute must first be referred to the CCMA or the relevant Bargaining Council for Conciliation. If the matter remains unresolved or 30 days have passed since the referral, a 48-hour written notice of the strike’s commencement must be given to the employer (7 days for state employers). Strikes failing to comply with these terms are categorised as “unprotected.”
Seeking Exemptions from Collective Agreements
The City of Tshwane’s application for an exemption from certain provisions of the salary and wage collective agreement has raised eyebrows. Like other collective agreements governing various industries, this agreement permits parties to apply for exemptions. To succeed, Tshwane must demonstrate its inability to afford to implement wage increases by providing detailed financial information, including audited financial statements and reports from the Municipal Finance Management Act.
Dismissals in the Wake of an Unprotected Strike
The City of Tshwane’s dismissal of 122 employees due to their participation in an unprotected strike carries significant legal implications. Under Section 68 of the LRA, conduct related to an unprotected strike falls within the exclusive jurisdiction of the Labour Court, which can grant interdicts and order compensation for losses attributable to unprotected strike actions. However, participation in such a strike, as per Item 6 of Schedule 8, constitutes misconduct and may justify dismissal. For a dismissal to be deemed fair, it must adhere to both substantive and procedural fairness standards.
Examining Attendance Records During Strikes
Tshwane’s decision to scrutinize attendance records and work performance of non-striking employees is well within their legal rights. The principle of “no work, no pay” is a fundamental aspect of labour law. However, it is essential to remember that employees who report for duty and perform their roles are entitled to receive payment.
Financial Constraints and Salary Withholding
Contrary to common belief, municipalities, like any other employers, cannot arbitrarily withhold salaries or dock pay due to financial constraints. Instead, proper procedures must be followed, such as implementing short-time work or temporary layoffs, with fairness and transparency as core principles.
Protecting Non-Striking Employees
Non-striking employees who claim they were unable to enter the workplace due to physical restrictions and intimidation have legal protections. Employers bear the responsibility of ensuring their safety and access to the workplace. Legal mechanisms exist to hold employers accountable for this duty.
Tertius Wessels is the Legal Director and a shareholder at Strata-g Labour Solutions. He is an Admitted Advocate of the High Court with over 14 years of experience as a Labour Law / Industrial Relations Practitioner.