In the event where Employees or a registered Trade Union referred a matter of mutual interest to the CCMA, a conciliation will take place in order to try and resolve the matter.

Should the matter remain unresolved at conciliation or after 30 days have passed since the date of the referral, whichever occurs first, the Commissioner can issue a certificate for the Employees / Trade Union to embark on a strike.

The Employees / Trade Union should give the Employer 48 hours’ notice in writing of their intention to strike.

For Employees’ actions to constitute a strike the following elements need to be present:

(1) More than one Employee must refuse to perform their duties and responsibilities as stipulated in their job description;

(2) The refusal must be aimed at forcing the Employer to remedy a dispute of mutual interest;

(3) The remedy must not be a “dispute of right”;

(4) There must be a work stoppage.

Employer’s rights and recourses during a protected strike:

As soon as the Employees / Trade Union have issued the Employer with a notice in writing of their intention to strike, the Employer can institute lock-out procedures.

Lock-out is the exclusion by an Employer of Employees from the Employer’s workplace for the purpose of compelling the Employees to accept a demand in respect of a matter of mutual interest between the Employer and the Employees.

A notice of the Employer’s intention to lock-out should be served in writing on the Employees / Trade Union informing them that the Employer has the right to lock them out after the expiry of 48 hours, from the date and time of the notice being served on them, but not before the commencement of the strike.

During the strike and lock-out, the Employees will not be paid, and is at all times bound by the Employer’s disciplinary code. The Employer is further permitted to employ replacement labour where a lock-out is in response to a strike.

Once a strike, in response to which a defensive lock-out is implemented, is called off, the Employer can no longer employ replacement labour because the lock-out ceases to be protected. The lock-out however can continue.

Employers should always take section 67(4) of the Labour Relations Act 66 of 1995 into consideration when contemplating the dismissal of strikers. Employers may not dismiss Employees for taking part in a protected strike or for any conduct in contemplation or furtherance of a protected strike.

Strikers may therefore not be dismissed neither for the “act of striking”, nor planning or participating therein when such a strike is protective.

However, there are two instances where an Employer may dismiss an Employee during or after a strike:

(1) Where an Employee commits a misconduct during the strike action, for example violent behaviour, intimidation or dishonesty;

(2) Dismissal based on the operational requirements of the business, for example where the company faces closure due to the strike, or where the strike has caused such severe financial loss that the company needs to reduce staff.

The Employer should keep in mind that the above dismissals should be procedurally and substantively fair.


Article by: Aletta Eksteen

CEO Dispute Resolution Official – Cape Town