Unlawful demands and strikes and the importance of contractual terms

On appeal, the employer argued that the employees’ refusal to work on Sundays and public holidays fell within the definition of a strike in the Labour Relations Act, No 66 of 1995. In terms of the Basic Conditions of Employment Act, No 75 of 1997 an employer may not require an employee to work on a public holiday, unless a written agreement exists.

The Labour Appeal Court considered whether the employees had a contractual obligation to work on Sundays and on public holidays.

The court held that although the contracts of employment provided for overtime, it did not mean that the employees were obliged to work on Sundays or on public holidays. It held that the there was no obligation on the employees to work every Sunday and therefore the employer could not require employees to do so. The employees’ refusal to work on Sundays did not constitute a strike and does not fall within the definition of strike.

The effect of the judgment is that the refusal by employees to work in response to an employer’s request that does not contractually arise will not amount to a strike. The essence of the case is that employers that require their employees to undertake work on Sundays or on public holidays must contractually agree the terms.

Written by Sipelelo Lityi and Stephanie Gonclaves