Can a single employee go on strike if the employer unilaterally changes the terms and conditions of his/her employment?
Section 64(4) enables employees to go on strike if the employer unilaterally changes the terms and conditions of employment. The section does not explain or dictate what must happen if the employee affected is a single employee.
Even if an employee were to choose to strike over the unilateral changes it would be of minimal effect on the employer because a single employee cannot engage in power play via striking as a union could. There is the added risk that such an employee may be faced with the “no work no pay” principle for the period he or she is on strike or face disciplinary action.
The Labour court in Schoeman v Samsung Electronics (SA (Pty) Ltd[1] is instructive on this issue wherein the court held that the strike remedy was not available to a single employee.
In Du Rant v Ultramat[2] and Abrahams v Drake & Scull Facilities Management SA (Pty) Ltd[3] the courts dealt with similar issues involving unilateral changes to employment conditions and the link to section 77 (3) and section 77A of the BCEA.
Section 77(3) of the Basic Conditions of Employment Act.[4] provides that: “The Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract.”
The powers of the Labour Court are further spelt out in section 77A(e) of the BCEA. The section empowers the Court to make a determination that it considers reasonable on any matter concerning a contract of employment in terms of section 77(3), which determination may include an order for specific performance, an award of damages or an award of compensation.
An employee who is subjected to a unilateral change of employment conditions may approach the Labour Court for relief, in the form of specific performance, damages or compensation. Such an action may be defended by an employer should they so wish.
It must be highlighted that the CCMA, bargaining councils, and private agencies do not have jurisdiction to arbitrate a unilateral change of employment conditions dispute and are only empowered to conciliate it.
[1] (1997) 10 BLLR 1364 LC
[2] (2013) 6 BLLR 573 LC
[3] (2012) 33 ILJ 1093 LC
[4] Act 75 of 1997 (the BCEA).
