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Unprotected Strike in South Africa - What's legal anymore?

In South Africa, we have the Constitutional Right to strike in terms of Section 23 of the Constitution of the Republic of South Africa 1996.

Limitations may be placed on a constitutional right, in terms of Section 36, should the limitation be reasonable and justifiable in an open and democratic society based on dignity, freedom and equality.

Unprotected strikes in South Africa

In terms of the Labour Relations Act 1995, no person may engage in a strike if they are deemed to be essential workers or a maintenance service. If an employee, deemed essential worker, strikes, the strike is considered an unprotected strike.

Protected Strikes

A protected strike, complying with all the regulations set out in the Labour Relations Act, occurs when the reason and intended outcome of the strike is legitimate in addition to before the strike commences, all the procedural requirements have been fulfilled.

The three most important elements of a protected strike are:

  • that the dispute was referred to the CCMA,
  • a certificate has been issued indicating that the disputes remain
  • and the time of 30 days after the referral has been adhered to.

Unprotected Strikes

An unprotected strike, as the name suggests, does not enjoy the same protection and regulations that protect the employee as a protected strike.

An Employer may find that an employee who participated in an unprotected strike actions to amount to serious misconduct which may result in dismissal from the company.

Eskom Employees have been deemed to be essential workers, the recent strike was an unprotected strike, and sanctions may be taken against the employees. Furthermore, Eskom had already got an interdict preventing the strike, as the consequences of a strike would be detrimental to society, which was confirmed when South Africa was placed on stage 6 loadshedding.  

The employees are often granted one last relief in terms of an ultimatum being offered by the employer. The ultimatum needs to be clear and unambiguous. If the employees accept and adhere to the given ultimatum, the employer loses its right to dismiss. The employer however retains its right to not backdate pay due to the “no work no pay” principle in South Africa.

Bailey Haynes Inc. – Labour Attorneys in Cape Town

Our attorneys offer expert legal advice on all labour and employment related issues in line with all recent and relevant developments in terms of the Labour Relations Act as well as all ad hoc legislative measures pertaining to the field.

Contact us for more information about our legal services.


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