The substantial increase in the number of wildcat strikes this year should not cause employers undue concern; while these strikes are illegal, employers still have a raft of legal processes at their disposal to manage these events.

This is according to Lynn February, partner at Webber Wentzel’s Cape Town office who says employers are often intimidated at the negotiating table when employees threaten to go out on strike.

Wildcat strikes are not protected, unlike legal strikes where the no work no pay rule applies but the continued employment of striking workers is guaranteed.

Wildcat strikes are illegal because employees have failed to follow the very clear legal processes which should precede the decision to go out on strike, or deal with issues over which the law does not allow employees to go out on strike. For a strike to be legal the issue must deal with a matter of mutual interest, in other words issues which affect everyone such as wages, bonuses and working conditions.

February advises that if during negotiations, employees threaten to go out on a wildcat strike, they should first inform the union that they should follow the processes as laid out in the Labour Relations Act for declaring a strike, otherwise it will not be protected and the continued employment of striking workers cannot be guaranteed.

“This will give you further time to engage in negotiations and to potentially resolve the matters at hand or to make contingency plans in order to manage the wildcat strike.

“The union and employees should also know that should they go out on a wildcat strike, they may be responsible for any legal costs that arise as a result. By laying out the consequences of their intended action, it can help bring resolution,” says February.

If the wildcat strike proceeds, employers may issue a legal demand to the union or to employees to return to work and desist from strike action. If they ignore the demand, the employer can approach the High Court for an urgent interdict. The employer can determine the scope of the order, for example, striking employees must remain off the premises, or refrain from causing further damage.

On the return date of the interdict, if the employees are in breach of that interdict, it is a violation of a court order which has serious consequences including the right to terminate employment.

February says usually at this point employees will return to work.