Is an employer entitled to rely on s68(1)(b) of the LRA to claim compensation for losses suffered during a protected strike/lockout?
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- Section 68(1) of the LRA reads as follows:
- In the case of a strike or lock-out, or any conduct in contemplation or in furtherance of a strike or lock-out, that does not comply with the provisions of this Chapter [Chapter IV], the Labour Court has exclusive jurisdiction –
- to grant an interdict or order to restrain…
- to order the payment of just and equitable compensation for any loss attributable to the strike or lock-out, or conduct, having regard to – …’ (underlining and insertion provided)
- In the case of a strike or lock-out, or any conduct in contemplation or in furtherance of a strike or lock-out, that does not comply with the provisions of this Chapter [Chapter IV], the Labour Court has exclusive jurisdiction –
- In Blinkwater Mills (Pty) Ltd v FAWU (2020) 31 SALLR 161 (ML); (2020) 41 ILJ 837 (ML), the high court held that any loss attributable to a strike or lockout, where such strike or lockout is protected, s68(1)(b) of the LRA is not applicable and the scenario is not covered by a statutory cause of action – it further held that such claim is to be based on the principles of a delict (the loss must be caused by the unlawful, intentional/negligent action or omission and the extent of the loss determines the quantum of the claim).
- However, in Massmart Holdings Ltd and Others v SACCAWU (2022) 33 SALLR 274 (LC), the labour court recently, per Van Niekerk J, held that s68(1)(b) of the LRA is to be interpreted to cover the scenario where the loss is attributable to an unprotected strike/lockout or conduct in contemplation or furtherance thereof, as well as a protected strike/lockout or conduct in contemplation or furtherance thereof.
