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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))

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)?