Employee’s and Employer’s Rights in Protected Industrial Action
Protected industrial action cannot be stopped by a court order unless it is deemed to be in the ‘public interest’ to do so. But an employer can ask the Labour Court to stop a solidarity or ‘secondary’ strike if it is unrelated to the ‘primary’ (first) industrial action.
The employer may not discipline, victimise, intimidate or dismiss employees who take protected industrial action or who are being locked out, nor those who refuse to do the work of another employee who is on a protected strike.
The employer can dismiss or take disciplinary action against employees for misconduct while taking industrial action, for example for violence or if they vandalise the employer’s property.
The employer cannot claim damages for lost production during the protected industrial action. (The employer can claim damages if the industrial action is unprotected!)
The employer does not have to pay employees while they are on strike or legally being locked out. But employees who receive payment in kind (things like housing, electricity, water or food instead of money) can ask the employer to give them this part of their pay, and the employer cannot refuse. When the strike or lock-out is over, the employer can claim the value of the payment in kind made during the strike or lock-out back from the employees. This must be done through the Labour Court. The money cannot be deducted from the employees’ pay without a court order or the employees’ permission.
An employer is entitled to recruit temporary (scab) labour while employees are on strike or when the employees are locked out by the employer where the lock out was introduced, only after the employees had gone on strike. If the employer locks out employees who have already started a strike, then the employer can use strike breakers to replace the strikers for the period of the strike.
In exceptional circumstances the employer can retrench employees on strike. The employer must follow the procedures for retrenchment. If the employer then employs other employees in place of the retrenched employees, the employees can take the dispute to the Labour Court where the lockout is in response to a strike. If the employer did the lockout first, then he/she cannot employ temporary replacement labour.