An appraisal of the retrenchment of workers during strikes

Abstract

The main object of labour law has always been, to counteract the inequality of bargaining power which is inborn in the employment relationship. Furthermore, collective bargaining enjoys protected status under the law and aims to resolve more than just issues concerning wages. It regulates the economy as well as the country’s democracy. The International Conventions Freedom of Association and Protection of the Right to Organise Convention, 1948 (hereafter Convention 87) and the Right to Organise and Collective Bargaining Convention, 1949 (hereafter Convention 98) state that both employer and the employee have the right to organise and bargain collectively. The International Labour Organization (hereafter the ILO) Convention on the Termination of Employment Convention, 1982 (hereafter Convention C158) also states the grounds on which an employee can be terminated. South Africa is member state of the ILO and has only ratified Convention 87 and Convention 98and has not ratified Convention C158. The Constitution on South Africa No 108 of 1996 contains the right to strike as set out in section 23 of the Constitution, and section 39 ensures that the obligations incurred by South Africa as a member state of the ILO are given effect to, furthermore, the Labour Relations Act 66 of 1995 (hereafter the LRA) gives effect to the right to strike. The LRA also sets out limitations to the right to strike. The LRA on the one hand, states that an employer is not allowed to dismiss workers who are participating in a protected strike. Such a dismissal will be automatically unfair in terms of section 187(1)(a) .However section 67(5) of the LRA states that it is not unlawful to dismiss a striking employee for reasons based on the employer's operational requirements. The two provisions clash, and thus this dissertation seeks to determine what the right to strike entails and furthermore, the paper explores the concept of automatically unfair dismissals against the provisions in section 188 (1) (a) (ii) of the LRA that allows an employee to be dismissed based on the employers’ operational requirements. The LRAA brought some changes to the definition of automatically unfair dismissal. The dissertation seeks to discover whether the said amendments to section 187(1)(c) adequately solve the anomaly that the two clashing provisions caused.