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Can you dismiss picketing workers during a strike action?

Ivan Israelstam

The threat of strike action, which is usually accompanied by picketing (that easily develops into violence and blockades), is a chilling reality. Unions have succeeded in entrenching their right to picket in labour legislation and employers are scrambling to protect themselves from the damage that picketing can cause. Many employers have tried to enter into picketing rules with unions and/or employees to ensure that pickets are peaceful and not obstructive to the business. However, these agreements are often flawed and, more often, are not adhered to.

Section 17 of South Africa’s Constitution recognises the right to picket while section 69 of the Labour Relations Act (LRA) gives employees the right to picket within certain constraints.

The LRA doesn’t go into any detail about picketing rules

This means that it’s a positive move that an official Code of Good Practice: Picketing has been issued in terms of section 203 of the LRA. While this document is only a code and not a statute, arbitrators and judges are required to refer to it when they make their decisions.

The picketing code states that the trade unions and employer should look at agreeing on picketing rules, before the strike action or picket starts, through a collective agreement. This needs to be very expertly worded to:

  • Cover all eventualities, and
  • Comply with the provisions of the LRA and code of good practice.

The registered trade union must appoint a convenor and marshals to oversee the picket. The convenor must:

  • Be an official or member of the union who should have a copy of the picketing regulations in his possession at all times to ensure that the picket is conducted peacefully.
  • Notify you, the employer, of the details of the picket. You must notify the convenor who’ll represent you with regard to the picket.

What’s the purpose of a picket in a strike action?

  • Encourage non-striking workers to support the strike or oppose the lock-out,
  • Influence members of the public not to do business with the employer, and
  • Discourage replacement employees from working.

While picketing itself isn’t illegal, you must realise that:

1.    The picket must be authorised by a registered trade union,

2.    Only members and supporters of the trade union may participate in the picket,

3.    The purpose of the picket must be to demonstrate peacefully in support of a strike action or in opposition to any lock-out,

4.    The picket may only be held in a public place outside your premises or, with your permission, inside your premises. You may not unreasonably withhold permission.

5.    Where the picket is in support of a strike action, this action must be a protected strike action for the picket itself to be protected.

6.    If picketers disrupt your business, they could face dismissal.

In the case of CEPPWAWU & others vs Metrofile (Pty) Ltd (2004, 2 BLLR 103):

  • The employees embarked on strike action because of a wage dispute.
  • The strikers blockaded one of the entrances to the employer’s premises contrary to the terms of a picketing agreement between the parties. 
  • The employer obtained an interdict against the blockade but the strikers refused to lift it. 
  • The employer then notified the shop stewards that the strikers would be facing a disciplinary hearing.
  • The shop stewards refused to accept the notices of the hearing and about 60 employees were found guilty even though they weren’t present.
  • Most of the strikers were subjected to dismissal but a few were given final warnings.

The Labour Court found that the dismissals were substantively fair, i.e. the reason for the dismissals was fair, but procedurally unfair. The Labour Appeal Court had another opinion. It found that the:

  • Dismissals were procedurally fair, but
  • Decision to dismiss some strikers and not others were inconsistent and therefore substantively unfair*.

*  This decision was based on the fact that, while both groups of strikers had been guilty of the same misconduct, only some had been dismissed.