Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
Chapter 4 of the Labour Relations Act (LRA), read together with item 6 of Schedule 8 of the LRA, effectively allows employers to dismiss employees who have embarked on an unprotected strike. However, the law makes it clear that an unlawful strike does not automatically give the employer a right to fire the strikers.
In the matter between the Association of Mineworkers and Construction Union (AMCU) vs Northern Coal (Lex Info, 30 April 2026, Labour Court case No JS491/23), 21 AMCU members embarked on an unprotected strike. According to the employer, the strike cost the company R2.1 million.
When can employers dismiss strikers?
The employer fired all the employees for embarking on an unprotected strike. AMCU then referred a dispute for unfair dismissal, which eventually reached the Labour Court.
The court found that the strike had been unlawful because the employees had failed to follow the legislated pre-strike procedures. The strike had cost the employer six hours of lost production.
The reason for the strike was the employer’s negligence in failing to include the employees’ overtime pay on their payslips. The amount of overtime pay that the employer erroneously omitted equated to 30% of the employees’ pay.
Why firing illegal strikers can still be too harsh
The employees had heavy financial obligations. Therefore, the loss of 30% of their pay was very significant. The strike was also short and peaceful. It occurred only because of the error in the employees’ pay.
The court found that discipline for the strike had been merited. However, it found that dismissal was too harsh under the circumstances. The court therefore ordered the employer to reinstate all 21 employees. It also ordered the employer to pay 36 months’ back pay.
The average monthly pay of the reinstated employees was approximately R9,000. Multiplied by 36 months, this would have come to approximately R6.8 million.
Lessons for employers
This court decision provides reasons for employers to ensure that they understand the law governing strike dismissals. In particular, employers should recognise that firing illegal strikers does not automatically make dismissal an appropriate penalty.
The judgment also highlights the importance of considering the circumstances surrounding an unprotected strike. Employers must therefore assess factors such as the reason for the strike, its duration, its impact on the business and the conduct of the employees.
Ultimately, firing illegal strikers can expose an employer to significant financial consequences when dismissal does not match the circumstances. Employers should therefore understand their legal obligations before taking disciplinary action against employees who participate in an unprotected strike.
