Can a Single Employee Strike?

Issue: Can an individual employee embark on strike action alone?

Question from Mthokozisi:

I am not happy at work and the managers do not take our complaints seriously. We have been telling them about unsafe working conditions and the low wages, but they don’t do anything about it. I told the others that we must go on strike because they are not listening to us but they are afraid. There are six of us and I am the only one who is not afraid. I told my manager that I am not going to work next week because I am going on strike and he said I will be fired. Some of my friends on WhatsApp said he can’t fire me for striking. I want to know if I can go on strike. And if I strike by myself and the others continue to go to work, can I be fired?

From The Legal Desk

* Please note this question was translated from IsiXhosa to English.

Thank you for your question Mthokozisi. I am sorry to hear things are not well at work. The question of whether an individual employee may embark on strike action alone may, at first glance, appear trivial. However, it is of considerable significance, especially in circumstances where an employee, perhaps isolated or feeling aggrieved, wishes to take such action independently. Alternatively, there may be other employees similarly dissatisfied but hesitant to take industrial action, leaving one individual as the sole person willing to go on strike. The question then becomes: can one employee lawfully engage in strike action unilaterally? Let’s take a look at the legals…

Strike action is typically the final and most extreme measure available to employees to express grievances and address workplace issues. There are numerous steps that must be taken before strike action is considered legal and, thus, protected. However, for the purposes of this response, I will focus specifically on the legal requirements and implications of engaging in strike action as an individual.

It is well established that the right to strike is a fundamental human right. This right has been recognised by the International Labour Organisation as being intrinsic to workers’ rights to freedom of association and to engage in collective bargaining effectively. Industrial action encompasses various forms, including strikes, protest actions, or lock outs imposed by employers. It is typically undertaken to exert economic pressure on the opposing party in the context of a labour dispute, although it may also be employed to advocate for social change.

In South Africa, section 27 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) enshrines the right of all workers to engage in industrial action, including the right to strike. Furthermore, the Labour Relations Act (“LRA”)¹ outlines the specific conditions under which strike action is legally protected. Although the Constitution guarantees the right to strike, it is crucial to note that this right cannot be exercised individually. This is evident from the very definition of “strike” as set out in section 213 of the LRA, which defines a “strike” as:

“The partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory.”

According to this definition, the action must be ‘concerted’, i.e. jointly undertaken, ‘by persons’. This means that strike action occurs when two or more employees collectively refuse to work. An employee acting alone would not be engaged in a strike, and would instead be subject to disciplinary action for refusal to work or be in breach of their contractual obligations. The requirement for collective action is further clarified by Grogan, who explains that:

When more than two employees down tools, their action constitutes a strike only if they act with a common purpose: they must have agreed to act in concert. In the unlikely event of a number of employees independently and simultaneously deciding to down tools in response to the same grievance, their action will not constitute a strike, provided that the refusal to work is not collective in both nature and intent. If a number of employees simultaneously refuse to work, but do so for different reasons, they are not on strike.²

In light of the foregoing, it is evident that an individual employee cannot lawfully engage in strike action independently. For a strike to be deemed valid under the LRA, it must be a collective action involving two or more employees. This principle was affirmed by the Labour Court in Schoeman & Another v Samsung Electronics (Pty) Ltd,³ in which it was held that an individual employee cannot strike, and likewise, an employer cannot impose a lock out against a single employee.

In summary, and to specifically answer your question Mthokozisi, if you are the sole employee willing to strike, you will not be able to legally do so on your own. The collective nature of strike action, as mandated by the LRA, requires the participation of your colleagues for it to be recognised as valid. All the best.

Written by Theo Tembo