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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))

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?