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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.
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?