The current labour relations environment in South Africa is fraught with complexity on almost every front. As a result, employers are treading extremely carefully in response to basic industrial relations (IR) issues, particularly when those issues are associated with industrial action. Why? Because the way unions and striking workers behave during industrial action have significantly changed. 

The Labour Relations Act, 1995 (LRA) is being tested, in ways that were never anticipated, including inter-union disputes and unprotected strike action that do not have the support of the representative trade unions at a workplace.

Post-Marikana, employers have – understandably – become very nervous about disciplining employees for industrial action, even when a strike is unprotected and/or where blatant criminal acts have occurred during the strike.
Among employers, there is also a growing impression that approaching the Labour Court with an urgent application to interdict unprotected strike action and/or acts of criminal behaviour is a fruitless exercise. According to the media, it appears that striking employees have become militant and may not always comply with orders given by the court.

Strike notification procedures have changed

There has also been an important change relating to how trade unions or employees are expected to notify employers of an intended strike where the strike is protected by the LRA.

In particular, the courts have indicated that the right to strike must not be limited so that non-unionised employees and/or minority union employees are disadvantaged. To ensure that certain employees are not disadvantaged, the Constitutional Court has held that a union's strike notice will cover all employees regardless if they are members of that union or not, provided they are also striking over the same demand. This means that if, at a later stage during a strike, non-union employees or minority union employees intend to join the strike, they are not required to issue a new strike notice. For obvious reasons, this allows a legally protected strike to snowball faster.

Employers may not always be able to assess how many employees will participate in the strike

It is therefore no surprise that employers may not always be in a position to plan correctly for a strike and anticipate what measures they need to put in place to manage the situation.

The concept of fairness will always play an important role in employment disputes

Commissioners and Labour Court judges appear to be moving further away from the legal technicalities associated with employment laws and are rather concentrating on upholding the concept of fairness. What is considered to be fair within an employment context will always depend on the circumstances of each case.

It is therefore important for IR managers and employment law attorneys to evaluate disciplinary procedures constantly against the fairness framework. These procedures should never be hastily instituted and they should always be applied consistently.

Retrenchments are becoming commonplace

In the current economic climate, many employers are also undergoing retrenchment exercises which, particularly if these are on a large scale, are procedurally demanding in terms of the LRA.

Retrenchments are considered no-fault dismissals because the affected employees are not to blame for their employment terminating, which means employers must proceed with caution.

A common mistake employers make during retrenchment exercises is that management teams make a final decision to retrench employees before they have started the consultation process with the affected employees. The Labour Courts have made it very clear that affected employees must be invited to a consultation process before any final decisions are made.

Employers must also demonstrate that they have genuinely considered alternatives to avoid retrenchment and if these alternatives cannot be adopted, the reasons for this must be provided. Following a mechanical checklist approach during a retrenchment exercise will not ensure that an employer has complied with the LRA and that it has acted fairly. Employers must be able to demonstrate that a retrenchment exercise was approached in good faith and that the consultation process was meaningful, not merely adopted as a "going-through-the motions" exercise.

Siobhan Viljoen, Partner

Contact: 011 290 2557 and viljoen@wylie.co.za