There’s some confusion with regard to what the differences between a protected and unprotected strike are, and whether or not staying away from work to participate in a strike will get you in trouble for absconding. Scorpion Legal Protection discusses the laws around striking and how it can affect you in the workplace.
Scorpion Legal Protection’s advice
A protected strike means that the strike has met certain requirements in terms of procedure before it happens.
The provisions require:
- that the dispute has been referred to a Council or the Commission for Conciliation, Mediation and Arbitration (CCMA);
- a certificate that the dispute remains unresolved must have been issued;
- a written notice of the strike must have been given to the employer 48 hours prior to it taking place.
If a protected strike complies with the Labour Relations Act (LRA), it means that no employee can be dismissed because they participated in the strike – it won’t be considered a breach of their employment contract.
Unprotected strikes are strikes that don’t meet the above requirements. You could find yourself in trouble with your employer if you skip work to participate in an unprotected strike. However, before the employer can take action against striking employees, the law requires that the employer must call on the union representative to discuss the unprotected strike. Once the employer has held discussions with the union representative, he or she can then issue an ultimatum to the workers to return to work or face a disciplinary inquiry, which may result in dismissal. If you choose to stay away from work despite your employer issuing an ultimatum, you could be dismissed for absconding (staying away) from work.
Tips:
- Protected strikes comply with the law, and you cannot get into trouble with your employer for participating.
- Unprotected strikes do not comply with the law, and if you participate, you could be dismissed for absconding from work.
If you have a query, follow us on our Facebook page and ask your question during our next Live Q&A (the first Thursday of every month).
* This is only basic advice and cannot be relied on solely. Names have been changed to protect identity.