Unprotected strikes will often merit dismissal where the employer has not provoked them. However, even in the absence of provocation, dismissal may still be unfair.
This distinction is critical for employers navigating strike-related discipline. One factor that can bedevil an employer’s case is inconsistency in the decision to dismiss.
The role of inconsistency in dismissal decisions
In labour law, inconsistency disturbs the balance between employer authority and employee fairness. Even so, an employer can still succeed if it provides a sufficiently compelling justification for the inconsistent treatment.
For example, an employer may dismiss some employees but not others for participating in an unprotected strike. Such differential treatment may be justified if the dismissed employees previously participated in an unprotected strike. In that situation, prior misconduct could explain the inconsistency.
In SACTWU and AFGWU vs Agri Poultry (Lex Info, 24 July 2025, Labour Court Case number 751/22), among other cases, the employer dismissed 65 employees. These employees had embarked on an unprotected strike that lasted three days.
Unequal treatment of striking employees
The Court accepted that the strike was both unprotected and unprovoked. On that basis, the strike itself warranted dismissal. However, a total of 665 employees had participated in the same strike. Most of them did not face dismissal. This disparity raised immediate concerns, as inconsistency disturbs the balance in disciplinary fairness.
The employer explained that the 65 dismissed employees had committed a similar offence in the past. According to the employer, this history amounted to an aggravating circumstance. The court accepted that this explanation could have justified the inconsistency in principle. Nevertheless, the Court found the dismissals to be unfair.
Lessons for employers
The employer failed to provide proof that the 65 employees had previously committed a similar offence. Without evidence, the justification for inconsistency collapsed. 
As a result, the court ordered the employer to pay each of the 65 employees five months’ remuneration as compensation. Even if each employee earned only R5,000 per month, the total liability reached R1,625,000.
This outcome was extremely costly. It clearly demonstrates that those responsible for dismissal decisions must understand the law on consistency. They must also know how to substantiate the employer’s claims with proper evidence. Without this training, inconsistency disturbs the balance and exposes employers to significant financial risk.
Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
