Article 24/2023

On what basis can an employer claim for losses attributable to an unprotected strike or conduct in contemplation or furtherance of such strike?

On the other hand, on what basis can an employer claim for losses attributable to a protected strike?

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In the scenario where losses are attributable to an unprotected strike or lockout or conduct in contemplation or furtherance of such strike or lockout, the following principles are applicable:

  • the employer has available to it a statutory cause of action based on the provisions of the LRA
  • the compensation must be just and equitable with reference to all the factors contained in
    s68(1)(b) of the LRA, namely:

    • whether attempts were made to comply with the provisions of the LRA and the extent of
      those attempts
    • whether the strike or lockout or conduct was premeditated
    • whether the strike or lockout or conduct was in response to unjustified conduct by another
      party to the dispute
    • whether there was compliance with an order granted to restrain the relevant conduct
    • the interest of orderly collective bargaining
    • the duration of the strike or lockout or conduct in contemplation thereof
    • the financial position of the employer, trade union or employees concerned
    • the labour court has exclusive jurisdiction

(Rustenburg Platinum Mines v Mouthpeace Workers Union (2021) 22 ILJ 2034 (LC)

    • delictual claims are not permitted
  • On the other hand, if the losses are attributable to a protected strike or lockout or conduct in contemplation or furtherance thereof, the following principles are applicable:
    • s68(1)(b) of the LRA is not applicable and the employer does not have available to it a statutory cause of action
    • the employer’s claim is to be based on the principles of a delict, entailing that it must prove that the loss was caused by unlawful, intentional or negligent acts or omissions
    • the employer will be able to recover the full extent of the proven loss

(Motor Industry Staff Association v Macun 2016 (5) SA 76 (SCA) – see, further, Blinkwater Mills
(Pty) Ltd v FAWU (2020) 31 SALLR 161 (ML))

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The scenario is as follows: in terms of a collective agreement between an employers’ organisation and various trade unions, provision is made for the accreditation of medical schemes by the relevant bargaining council, so that employees may enjoy the benefits of selecting and joining a scheme to which their employers contribute.

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