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Article 36/2024

LabourEdge

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 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.
September 7, 2026

The previous article dealt with the distinction between misconduct constituting desertion and misconduct constituting abscondment – see, further, in this regard, Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC).

In this article, what we attempt to do is provide some clarity as to a very different misconduct, namely, the misconduct of deeming desertion.

August 31, 2026

What is the difference between desertion and abscondment?

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?