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Article 3/2024

LabourEdge

What are the requirements to be met to obtain an interdict against unlawful conduct during a protected strike where the employees against whom the employer wants to obtain this interdict did not personally commit the unlawful conduct – i e did not personally throw the stone, burn the tyre, interfere with scab labour, prevent trucks from offloading, etc?

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The requirements for a final interdict are well settled, namely:

  • a clear right
  • injury actually committed or reasonably apprehended
  • the absence of an alternative remedy (Setlogelo v Setlogelo 1914 AD 221)

Taking the above into account, it is quite clear why an employer can obtain a final interdict against an employee who actually committed the unlawful conduct – however, the problems occur when the employee did not personally commit the unlawful conduct but was present at the scene of the unlawful conduct or, alternatively, was part of the union that went out on strike.

The constitutional court, in Commercial Stevedoring Agricultural and Allied Workers’ Union v Oak Valley Estates (2022) 33 SALLR 49 (CC), formulated the following two different approaches to be applied in such environment:

 

  • Scenario 1

 

This scenario covers the factual circumstance where the unlawful conduct is ongoing, widespread and manifest – an employer will be able to obtain a final interdict against those employees who, in such circumstance, do not disassociate themselves from the unlawful conduct (this entails that, in such scenario, there is a duty on such bystanders to disassociate themselves from the unlawful conduct)

 

  • Scenario 2

 

This scenario entails the factual scene where the unlawful conduct is isolated and sporadic and the industrial action is substantially peaceful – if an employer wishes to obtain a final interdict, it has to prove (by providing direct evidence or circumstantial evidence) that the bystander wished to associate himself/herself with the unlawful conduct

From the above, it is apparent that the mere participation in a strike is not sufficient to establish the required link between an employee and the actual or threatened injury and, furthermore, that innocent bystanders are not legally caught up in the web of unlawful conduct unless they fall within the aforesaid two scenarios.  Likewise, mere membership of the union that called for the strike is not sufficient to establish the required link between the employee and the actual or threatened injury.

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?