Unprotected strikes will often merit dismissal where the employer has not provoked them. However, even where there has been no provocation, such dismissal can be found to be unfair.
Why consistency matters
One factor that could bedevil the employer’s case is where there has been inconsistency in the decision to dismiss. Even then, the employer could still win the case if it provides a good enough reason for the inconsistency. For example, if the employer fires some employees and not others for participating in an unprotected strike, this could be justified if the reason for the inconsistency is that the dismissed employees had participated previously in an unprotected strike.
Agri Poultry case overview
In the case of Southern African Clothing and Textile Workers Union and Others v Agri Poultry (Pty) Ltd ta Daybreak Farm and Others (JS751/22) [2025] ZALCJHB 304; (2025) 46 ILJ 2740 (LC) (24 July 2025), 65 employees were fired for having embarked on an unprotected 3-day strike. The Court accepted that the strike had been unprotected and unprovoked, and that it therefore merited dismissal.
Inconsistency without proof leads to unfairness
However, 665 employees had embarked on this strike, but most had not been fired. The employer’s excuse for this was that the 65 employees had committed a similar offence previously which constituted a type of aggravating circumstance. The Court accepted that this would have been an acceptable reason for the inconsistency. Nevertheless, the Court found the 65 dismissals to have been unfair because the employer provided no proof that the 65 employees had committed a similar offence previously.
The costly consequences
As a result the Court ordered the employer to pay each of the 65 employees five months’ remuneration in compensation. Even if the employees earned only R5,000 per month this would have amounted to R1,625,000.
Lesson for decision-makers
This hugely expensive outcome makes it clear that those responsible for dismissal decisions must be trained in the law of consistency and of how to provide proof of the employer’s claims.
Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
