Is it permissible to dismiss the worker because of a strike?

Strike action, also called labor strike or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strike will usually be conducted by the employees, in an orderly manner and for a specific intent to put pressure on employers or authority to enforce their demands or find solutions to their existing disputes. It is used as a method to defend the interests and rights of workers. The trade unions will call for a strike in an organized manner, to meet the interests of the employees if they have not been met .

Industrial action is used where employees want new or better conditions at the workplace and wish to use strike to create new terms and conditions of their employment.. Stayaways, strikes, work stoppages, go-slows, work-to-rule, and union bans on overtime, and lock-outs, are all forms of industrial action. Industrial action can be protected (legal) or unprotected. It is obligatory that the trade union should notice the employer in advance before embarking on the strike.

As per Kuwait law it is not permissible to resort to strike directly without notifying the employer, though not followed strictly. However, the procedures and obligations of the trade union who call for a strike are so complex that it makes the strike impossible in reality. Most importantly, the safety of places and means of work should be ensured. There should not be a ban or prohibition on essential services and facilities, thought all facilities will not come under the category of ‘essential facility’.

There are several methods of the strike.

1. ‘Sit-down Strike’ where workers remain at the workplace and refuse to do work.

2. ‘The strike action as required by law’ only (Work-to-Rule) where workers perform their work according to the law in a way that will not hinder the productivity. The employees may only refuse to work overtime or do a task which requires more diligence and effort.

3. A ‘sympathy strike’ is a strike where a group of workers or employees belonging to the same industry but employed in the other companies sympathise with the employees holding the strike and support it.

4. A hunger strike occurs when employee(s) voluntarily refrain from consuming food. This is a common strike in prison .

It is during the time of Industrial revolution strike got its prominence. strike actions were quickly made illegal due to the influence and political power of factory owners. Most western countries partially legalized striking in the late 19th or early 20th centuries. However, Marxism – Leninism considered banning the strike as illegal since these systems claim to represent the working class.

Though some legislation and international conventions considered the strike a legitimate means to defend the rights of workers, the Kuwaiti legislature remains silent though strike is not prohibited by the law. It comes under the provisions of Article 98 of the Law No. (6 ) of 2010 concerning work in the the private sector. The law says that the right to form unions, the right to gather together for the benefit of the workers is in accordance with the provisions of this law. The law is applicable to workers in the private sector. These provisions are not in conflict with the provisions for the employees under the oil or government sectors. Article 99 recommends that all Kuwaiti workers has the right to join the trade unions, protect the interests and working conditions of the employees to improve their financial and social status.

The wages of a dismissed worker who is absent from work due to his participation in the strike is calculated differently in different legislations. In some legislation there is no pay and the employer is entitled to lay off the worker.

In the Kuwaiti legislation the right of the employer to lay off worker because of the strike was provided earlier but Article 42 of the Labor Law states that if the employee refrain from work without an acceptable excuse for a period of seven consecutive days or twenty days scattered through the year that employee shall be considered to have resigned from his employment. In Article (132) of the Act it is prohibited to stop working completely or partially and that absence from work is not permissible. If it exceeds seven consecutive days or twenty days during the year the employee may be terminated from his service. Ironically, Article 46 of the Labor Code states that the employer may not end the service of the worker without justification or because of his trade union relation or because of their demands before the trade union and the employees enjoy their legitimate rights in accordance with the provisions of the law. Therefore, based on this provision it can be argued that the right to strike is guaranteed to workers as per Kuwaiti law when it is intended to claim their legitimate rights according to the law and cannot be dismissed from work for this reason.

It can be concluded that the Kuwaiti legislature does not prohibit the strike when it is conducted peacefully and which takes into account the laws and regulations of the country. Though not expressly stated, the freedom of expression is also provided in the legislation.

Posted on 22/12/2015 by special correspondent

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