By Ivan Israelstam, 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.labourlawvideos.co.za
By their very nature and purpose strikes cause damage to the enterprise concerned. As a result many employers feel the need to crack down on industrial action so as to deter repetitions thereof. Therefore, many employers eagerly make full use of their legal right to fire strikers. However, the law does not provide a blanket licence to fire illegal strikers. The employer must still prove that the dismissals were merited in the light of the circumstances.
In the case of Benteler South Africa (Pty) Ltd vs NUMSA (Lex Info 30 January 2026. Labour Appeal Court case No: PA25/24) 30 employees were fired for embarking on an illegal strike. The employer justified the dismissal decision on the basis that:
- The strike had cost the company R400 000
- The employees had previously received a final warning for an illegal strike
- A formal agreement had been signed with the employees’ union which provided that the employees would not embark on strikes
- The reason that the employees embarked on the strike was not justified.
The facts of the case are that, during Covid, the employee were desperately waiting for their TERS payments. They had been told by the Department of Employment and Labour that their TERS monies had been paid to the employer. As the employer had denied receiving the money the employees demanded to speak to a Mr Rosini to clear up their confusion. As this demand was refused the employees embarked on a work stoppage for 40 minutes. Mr Rosini then met with them and, despite not getting their TERS money, the employees went back to work after the meeting. They were later fired at a disciplinary hearing.
The Labour Appeal Court found that the dismissals had been unfair because:
- The employer had failed to prove its claim that the 40-minute strike had cost the company R400 000 or that it had cost the company any kind of loss at all
- The dismissed employees had not been part of the group who had received the final warning for the previous strike
- The employees had embarked on the stoppage because:
- they were desperate to get their money and
- they had been told by the Department of Employment and Labour that their money had been paid over to the employer
- the employer had unreasonably failed to grant them the meeting they needed with Mr Rosini.
While the employees ought not to have embarked on the stoppage the dismissal had been too harsh a penalty under the circumstances. The Court ordered the employer to reinstate all 30 of the employees and to pay each of them 58 months’ backpay.
Despite the prevailing case law employers still fire strikers too hastily. The immense cost of such rash decisions can be avoided if employers educate their decision makers as to the heavy protections given to employees in general and to striking employees in particular.
While such training can be costly money wise and time wise, excellent training products are now available that cost very little and that allow executives and HR/IR practitioners to access the learning material at times suitable to their busy schedules.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
