Chapter 4 of the 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. For example, where employees fail, prior to embarking on a strike to follow the LRA’s pre-strike procedures, the employer may be entitled to dismiss the strikers. This is because, by their very nature and purpose, strikes cause damage to the enterprise concerned. And the pre-strike procedures are necessary to mitigate that damage and to try to avoid the need for a strike.

However, the law makes it clear that an unlawful strike does not automatically give the employer a right to fire the strikers. The appropriateness of the penalty depends on the circumstances in which the strike action took place. For example, if the employer provoked the strike this would act as a mitigating factor.

In the matter between the Association of Mineworkers and Construction Union vs Northern Coal (Lex Info 30 April 2026 Labour Court case No JS491/23) twenty-one AMCU members embarked on an unprotected strike which, according to the employer, cost the company R2.1-million.

The employer fired all the employees for embarking on an unprotected strike, and AMCU referred a dispute for unfair dismissal that ended up at 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 6 hours of lost production. The reason for the strike was the employer’s negligence in failing to include the employees’ overtime pay on their pay slips. The amount of the overtime pay erroneously omitted equated to 30% of the employees’ pay. The employees had heavy financial obligations and the loss of 30% of their pay was very significant. The strike was short and peaceful and occurred only due to the error in the employees’ pay.

The Court therefore found that, while discipline for the strike had been merited, the penalty of dismissal was too harsh under the circumstances. The Court therefore ordered the employer to reinstate all 21 employees with 36 months’ backpay.

The average monthly pay of the reinstated employees was approximately R9 000. This, multiplied by 36 months, would have come to approximately R 6.8-million.

This court decision provides 6.8-million reasons for employers to ensure that they understand the law of strike dismissals.

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Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za

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