Social and other media are abuzz with a call for the entire nation to participate in nationwide protest action this coming Friday, 7 April. One such call reads “South Africans regardless of race or political affiliation will stand up and stand together against Zuma and corruption”. Given the possibility of widespread disruption, the question is how employers should respond to the situation.
Assuming employers adopt a neutral stance regarding this protest action, they are faced with several possible scenarios:
1 . Employees who apply for leave in order to participate in the protest action.
2 . Employees who insist that they will stay away in support of the protest action, because they believe they have the right to do so (without applying for leave).
3 . Employees who apply for leave in fear of disruption to transport or possible violence.
4 . Employees who merely fail to arrive for work on Friday without having applied for leave.
From an operational perspective some employers can ill afford widespread absenteeism relating to the protest action. Others may be less affected.
The envisaged national stay-away from work would not be “protected protest action” as envisaged by the Labour Relations Act. Section 77 of the Act makes provision for “(p)rotest action to promote or defend socio-economic interests of workers”. While the cause for the protest action is arguably one that workers have an interest in, the process that would render it protected (in the sense that no disciplinary action may be taken against workers that stay away from work) has not been followed. It would have been necessary for a registered trade union or federation of trade unions to initiate the process by referring it to NEDLAC for consideration. If the matter remained unresolved, it would have been necessary to give 14 days’ notice of the commencement of the protest action. This has clearly not happened.
Looking at abovementioned scenarios, we can comment as follows:
1 . If employees apply for occasional leave because they wish to participate in the protest action, it is up to each employer to decide whether such leave should be granted or not. Employers that support the protest action may even decide to give employees paid time off. Others may decide to grant unpaid leave.
2 . Employees who deliberately stay away from work merely because they feel entitled to do so (without applying for leave), would be guilty of misconduct and may face disciplinary action.
3 . Employers should give favourable consideration to applications for occasional leave if there are employees who have good reason to believe that their transport to work may be disrupted, or where they have well-founded fears of violence related to the anticipated protest action.
4 . There may be employees who merely fail to arrive for work on Friday. There could be various reasons for their being absent. It would be advisable for employers to make contingency plans, and to inform employees to immediately communicate with their respective supervisors if they are unable to come to work. What action an employer takes would depend on the reasons for the absence.