Article 01/2021

Labour Edge

There is a misconception that the labour court has jurisdiction to entertain any disputes concerning work-related grievances, or to deal with any allegations of unfair conduct by an employer.  How did Van Niekerk J deal with this issue in Malinga and Others v KwaZulu-Natal Provincial Department of Education and Others (2020) 31 SALLR 101 (LC)?

  1. There is a common misconception, especially in relation to urgent applications, that this court has jurisdiction to entertain any dispute that concerns a work-related grievance, or to deal with any allegations of unfair conduct by an employer. This is not the case,
  2. Section 157(1) of the LRA provides:

‘Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.’

  1. Section 157(2) reads as follows:

‘The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from –

(a)     employment and from labour relations;

(b)     any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and

(c)      the application of any law for the administration of which the Minister is responsible.’

  1. The labour court is a superior court that has authority, inherent powers and standing equal to those of a division of the high court, but only in relation to matters under its jurisdiction (s151(2)). The scope of the court’s exclusive and concurrent jurisdiction is to be determined by reference to s157. It is self-evident that s157 does not confer jurisdiction on the labour court to make orders regarding all and any employer conduct that is alleged to be unfair.

It is settled law that one of the requirements of a lockout is that it is to be preceded by a demand from the employer in respect of a matter of mutual interest.  Does this equate to a lockout notice?

What is the purpose of a lockout?

What are the requirements to be met for an urgent application to be granted in the labour court?