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
Unprotected strikes will often merit dismissal where the employer has not provoked them. However, even where there has been no provocation, such dismissal can be found to be unfair.
One factor that could bedevil the employer’s case is where there has been inconsistency in the decision to dismiss. Even then, the employer could still win the case if it provides a good enough reason for the inconsistency. For example, if the employer fires some employees and not others for participating in an unprotected strike, this could be justified if the reason for the inconsistency is that the dismissed employees had participated previously in an unprotected strike.
Item 3.(1) of the Code of Good Practice: Dismissal (the Code) in Schedule 8 of the Labour Relations Act (LRA) requires that, “The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.”
In the case of SACCAWU obo Lentsha vs Boxer Superstores (Pty) Ltd (2010, 12 BALR 1294) the dismissal of a cashier was found to be unfair. The cashier had given R1000 to a customer despite the fact that the electronic banking system located at the cashier’s till had rejected the customer’s debit card cash withdrawal request. The employee’s dismissal was found to be inconsistent and therefore unfair because another employee who had made a similar mistake had not been dismissed and because of the dismissed employee’s long service and expression of genuine of remorse. The arbitrator ordered the employer to reinstate the employee.
In the case of SACTWU and AFGWU vs Agri Poultry (Lex Info 24 July 2025. Labour Court Case number 751/22) 65 employees were fired for having embarked on an unprotected 3-day strike. The Court accepted that the strike had been unprotected and unprovoked, and that it therefore merited dismissal.
However, 665 employees had embarked on this strike, but most had not been fired. The employer’s excuse for this was that the 65 employees had committed a similar offence previously which constituted a type of aggravating circumstance. The Court accepted that his would have been an acceptable reason for the inconsistency. Nevertheless, the Court found the 65 dismissals to have been unfair because the employer provided no proof that the 65 employees had committed a similar offence previously.
As a result, the Court ordered the employer to pay each of the 65 employees five months’ remuneration in compensation. Even if the employees earned only R5000 per month this would have amounted to R1 625 000.
This hugely expensive outcome makes it clear that those responsible for dismissal decisions must be trained in the law of consistency and of how to provide proof of the employer’s claims.
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