There are a number of options that are available to employers during industrial action, one such option being the employer’s right to withhold salaries and wages of those employees who are participating in a strike.
Withholding pay, naturally, is the most effective method to dissuade employees from embarking on a strike, after dismissal, of course, but that in itself is a topic that should be dealt with on its own. Fortunately, CEO has a plethora of articles dealing with this, amongst other, labour-related topics that every employer should familiarise themselves with. https://ceosa.org.za/blog/
The Labour Relations Act makes specific mention that employers are not obligated to pay employees that have embarked on industrial action. Section 67 (3) reads as follows;
Despite subsection (2), an employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike or a protected lock-out, however-
(d) if the employee’s remuneration includes payment in kind in respect of accommodation, the provision of food and other basic amenities of life, the employer, at the request of the employee, must not discontinue payment in kind during the strike or lock-out; and
(e) after the end of the strike or lock-out, the employer may recover the monetary value of the payment in kind made at the request of the employee during the strike or lock-out from the employee by way of civil proceedings instituted in the Labour Court.
At its core, an employment relationship dictates that an employer will pay an employee, for that employee to provide his or her services to the employer. Therefore, when an employee fails to tender his or her services to their employer, the employer has no legal obligation to pay them.
In the 12th Edition of Workplace Law, John Grogan explains that before an employer can dock a striking employee’s pay, he or she should first make sure that the employee was indeed on strike. It would, of course, be unlawful to dock pay for an employee who was indeed rendering his or her services. Employers should also take note that deductions from salaries of full-time shop stewards would also be unlawful, as these employees are working for the union, even though they are paid by the employer.
It is also worth noting, as an employer, that if employees decide to call off a strike, they will need to provide their services in full. If not, the employer is not required to allow them to resume with their duties, this has the effect of preventing workers from embarking on a go-slow, as stated in 3M SA (Pty) Ltd v SACCAWU.
Article by: Wesley Field
Dispute Resolution Official – Bloemfontein