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While the right to strike is entrenched in Section 23(2)(c) of the Constitution of the Republic of South Africa of 1996, that right is regulated by the Labour Relations Act 66 of 1995 (LRA).

A “strike” is defined in Section 213 of the LRA as:

“The partial or complete concerted refusal to work, or the retardation or obstruction of work, by employees for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest.”

Protected vs Unprotected Strikes

For strike action to be protected, employees must comply with the procedural requirements set out in Section 64 of the LRA, namely:

• Referral of the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or relevant bargaining council for conciliation;
• The issuing of a certificate of non‑resolution or the lapse of 30 days; and
• At least 48 hours’ written notice of the strike (seven days if the employer is the State).

Where these requirements are not met, the strike is unprotected as would be the case if, for example:

• No dispute was referred for conciliation;
• The strike commences before conciliation is concluded;
• No or inadequate strike notice was given;
• The issue is one that must be resolved by arbitration or adjudication (Section 65); and/or
• The employees are bound by a collective agreement prohibiting strike action.

In SACWU v Afrox Ltd (1999) 20 ILJ 1718 (LAC), the Labour Appeal Court (LAC) confirmed that failure to issue a proper strike notice renders strike action unprotected, even if the dispute had been referred for conciliation.

In NUMSA v Bader Bop (Pty) Ltd (2003) 24 ILJ 305 (CC), the Constitutional Court reaffirmed that the right to strike must be exercised within the framework of the LRA.

Insubordination vs. an Unprotected Strike

In South African labour law, insubordination must be distinguished from an unprotected strike by focusing on the nature and purpose of the employees’ conduct. Insubordination involves a deliberate and wilful refusal to obey a lawful and reasonable instruction, typically by an individual employee, and constitutes misconduct as illustrated in FAWU v Rainbow Chicken Farms (Pty) Ltd (2000) 21 ILJ 615 (LAC).

By contrast, an unprotected strike entails a concerted refusal to work aimed at remedying a grievance or resolving a dispute of mutual interest, regardless of how it is labelled by employees, as was the case in NUMSA v CBI Electric African Cables (2014) 35 ILJ 642 (LAC).

In City of Johannesburg Metropolitan Municipality v SAMWU (2011) 32 ILJ 2903 (LC), the courts cautioned that where employees act collectively in pursuit of a demand, the conduct is more properly characterised as strike action rather than insubordination, even if instructions are disobeyed. Mischaracterising collective action as insubordination may therefore render a dismissal substantively unfair.

Steps an Employer Should Take When an Unprotected Strike Occurs

Immediately establish the status of the strike

An HR practitioner should promptly determine whether the strike is unprotected by checking:

• Whether the work stoppage is related to a demand;
• Whether the dispute was referred to the CCMA or bargaining council;
• Whether a certificate of outcome exists or 30 days have lapsed since referral;
• Whether proper strike notice was given; and/or
• Whether the issue in dispute is legally eligible for strike action.

This assessment is critical, as it informs all subsequent steps.

Engage and communicate:

• • Engage with union representatives or employee leaders;
  • Inform employees that the strike is unprotected; and
  • Encourage a return to work and compliance with the LRA.

This engagement demonstrates good faith and may later serve as mitigation in any legal proceedings.

Issuing Ultimatums

An ultimatum is a key procedural safeguard. Its purpose is to:

• Clearly inform employees that their conduct is unlawful;
• Provide a final opportunity to return to work; and
• Warn of the consequences of continued participation.

In Modise & Others v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC), the LAC held that issuing an ultimatum is an important factor in assessing the procedural fairness of dismissals for participation in an unprotected strike.

Requirements of a Fair Ultimatum:

A fair ultimatum should:

• State clearly that the strike is unprotected;
• Specify a deadline for employees to return to work;
• Warn that disciplinary action, including dismissal, may follow;
• Allow reasonable time for employees to reflect and respond; and
• Be communicated in a manner and language that employees understand.

In Plaschem (Pty) Ltd v SACWU (1999) 20 ILJ 321 (LAC), the Court emphasised that employees must be given a genuine and reasonable opportunity to comply.

Other practical steps

It could further be necessary for employers to:

• Immediately contact the police and/or security services if employees become violent or threaten to do so.
• Ensure that camera systems are working. Alternatively, assign someone to record footage of the unprotected strike and identify and record individuals as far as safely possible.
• Notify non-striking employees to secure the premises where possible or exit the premises to ensure their safety.

Discipline for Participation in an Unprotected Strike

Participation as Misconduct

In terms of section 67(4) of the LRA, an employee who participates in an unprotected strike may be disciplined. Participation constitutes misconduct, but dismissal is not automatic. The employer must still comply with Schedule 8: Code of Good Practice: Dismissal, and ensure both procedural and substantive fairness.

In NUM v CCMA & Others (2013) 34 ILJ 945 (LC), the Court confirmed that participation in an unprotected strike is serious misconduct, but the appropriateness of dismissal depends on the circumstances.

Discipline Where Ultimatums Are Complied With

Where employees comply with an ultimatum and return to work:

• This compliance is a strong mitigating factor;
• Dismissal is generally inappropriate for mere participation, especially for first‑time offenders; and
• Progressive discipline (written or final written warnings) is usually more appropriate.

In NUMSA v CBI Electric African Cables (2014) 35 ILJ 642 (LC), the Court found that dismissal was unfair where employees returned to work after an ultimatum and there were no aggravating factors such as violence. The key principle here is that compliance with an ultimatum indicates a willingness to restore the employment relationship.

Discipline Where Ultimatums Are Not Complied With

Failure or refusal to comply with a fair and lawful ultimatum significantly aggravates the misconduct. In these circumstances, dismissal may be substantively fair, provided procedural fairness is observed.

In CEPPWAWU v Glass & Aluminium 2000 CC (2002) 23 ILJ 695 (LAC), the Court held that persistence in an unprotected strike after a clear ultimatum justified dismissal. Similarly, in NUM v Black Mountain Mining (Pty) Ltd (2014) 35 ILJ 2791 (LC), dismissals were upheld where employees ignored multiple ultimatums and continued unlawful strike action.

Aggravating Conduct

Where unprotected strikes are accompanied by violence, intimidation, or damage to property, dismissal may be fair even where the strike is relatively brief, as confirmed by the LAC in FAWU v Rainbow Chicken Farms (Pty) Ltd (2000) 21 ILJ 615 (LAC).

Navigating the Risk

Unprotected strike action places both employees and employers at significant legal risk. While participation constitutes misconduct, HR practitioners must respond in a structured, lawful, and proportionate manner.

Key principles for HR practitioners include correctly identifying unprotected strike action, issuing clear and reasonable ultimatums, differentiating between employees who comply and those who defy ultimatums, and applying discipline that is consistent with the LRA and established case law.

Ultimatums remain the critical dividing line between corrective discipline and dismissal for persistent defiance. When applied correctly, they serve both operational discipline and procedural fairness.

Written by Pieter Geyser