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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))

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?