In the South African Employment arena there is an increase in stay aways which are called by Political Parties and/or Trade Union Movements.
As a result of the flaling economy in South Africa and the growing dissatisfaction relating to service delivery, etc., stay away action is likely to occur more frequently.
The question which then arises is how does the Law regard collective stay away action in an employment context.
Stay aways are not regulated by the Labour Relations Act 66 of 1995 (LRA).
Protest action is, however, recognized by the LRA and is regulated in terms of Section 77. Protest action under the LRA is restricted to protest action which has been called by a registered Trade Union or a federation of Trade Unions and is typically aimed at furthering employment related demands to better the terms and conditions of employment of employees.
Protest action as contemplated in Section 77 of the LRA is considered to be an extension of the constitutionally protected right to strike.
Provided that the protest action is compliant with pre-emptory procedural requirements as prescribed by Section 77, which requires an initial notice of the intended protest to be given to NEDLAC for its consideration, and 14 (fourteen) days’ notice to NEDLAC of the commencement of the intended protest action, such protest action then receives similar protection afforded to a protected strike as contemplated in Section 65 of the LRA, with the result that any employees embarking on protest action cannot be disciplined alternatively dismissed for their participation in protected protest action. Should any employees embarking on protected protest action, however, commit acts of misconduct related to their employment during the protected protest action, such employers would be entitled to discipline such employees and provided that the misconduct is of a serious nature, dismiss any employees found guilty of such misconduct. The disciplinary measures must be aimed at the misconduct committed by the employees and not their participation in protected protest action.
Stay away action which is not called by a Trade Union or Trade Union Federation, is distinct from protest action and does not enjoy any protection by the LRA.
Stay away action is typically aimed at a demand unrelated to employment in the strict sense, and is usually aligned to a political agenda or some broader matter of public interest, or even the commemoration of some historical event which is unrelated to employment.
Employees who participate in stay away action without taking leave or without permission from their employers, are vulnerable to being disciplined on the basis of unauthorized absenteeism and may face disciplinary action and sanction by their employers.
Any disciplinary action taken against employees who participate in stay away action must, however, comply with the standard of fairness which is infused into the LRA. Despite the fact that multiple employees of an employer may participate in stay away action, disciplinary enquiries should be held where each employee is given an opportunity of making representations as to why he/she should not be found guilty of absenteeism or be met with a disciplinary sanction.
Due to the prevailing socio economic conditions in South Africa, a great number of employees are solely dependent on public transport, which may be severely disrupted by the stay away action or the protests which occur in the course of the stay away action may pose a significant threat to the safety of such employees especially where there is widespread violence. In addition to this there is more often than not high levels of intimidation aimed at persons not taking part in stay away action, all of which would if proved, constitute compelling mitigating factors, which may render disciplinary action in respect of such employees, inappropriate or unfair.
It would be prudent for employers to adopt a cautious approach in handing down disciplinary sanctions against employees who are absent from work without leave during stay away action.
Interestingly, however, the Labour Court has held that when deciding on an appropriate sanction with regard to collective absenteeism as a result of stay away action, an employer may not use previous warnings issued to individual employees for absenteeism as an aggravating factor.
Employers when dismissing employees for absenteeism based on such employees taking part in stay away action, must carefully consider any genuine mitigating factors which may be put forward by the employees, to avoid any claims of unfair dismissal or unfair labour practices being brought against them by their employees.
FAIRBRIDGES WERTHEIM BECKER