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Article 37/2024

LabourEdge

Section 76(1) of the LRA reads as follows:

  • An employer may not take into employment any person –
    • to continue or maintain production during a protected strike if the whole or a part of the employer’s service has been designated a maintenance service; or
    • for the purpose of performing the work of an employee who is locked out, unless the lock-out is in response to a strike.’

What approach did the constitutional court recently adopt, in NUMSA v Trenstar (Pty) Ltd (2023) 44 ILJ 1189 (CC); [2023] 7 BLLR 609 (CC); (2023) 34 SALLR 67 (CC), to determine whether an employer can rely on s76(1)(b) of the LRA to employ replacement labour when a strike has been suspended?

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The constitutional court, in the Trenstar judgment, adopted the following approach to such issue: 

  • two fundamental requirements must be met for action on the part of the trade union and the employees to constitute a strike, namely, there must be the concerted (collective/coordinated) withholding of labour (entailing the refusal to work/retardation/obstruction of work) and such concerted withholding of labour must be for a specific purpose
  • the implications of both the aforesaid requirements having to be present before conduct constitutes strike action entails, at the most fundamental level, that, if one of these requirements is absent, there cannot be a strike
  • the LRA does not distinguish between termination of strikes and suspension of strikes – a strike ends when there is no longer a concerted withdrawal of labour, even if a demand still exists, as is the case with the so-called suspension of a strike
  • when a strike is suspended, the trade union and its members have not given up the demand, but there is no concerted withdrawal of labour – the consequences being that there is still an unconditional right to strike (seeing that the dispute has successfully been processed by means of s64 and s65 of the LRA)
  • once the conduct of the trade union and the employees no longer constitutes a strike, as set out above, the employer is entitled to implement a lockout, but the lockout is not in response to a strike and, therefore, the employer will not be able to rely on s76(1)(b) of the LRA to utilise replacement labour
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)?