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Article 55/2021

Labour Edge

It is legitimate for a union to place additional pressure on the primary employer to meet its demands by calling out its members employed by another employer, subject to the procedural requirements introduced by s66(2)(a) and (b) and the reasonable requirements introduced by s66(2)(c) of the LRA.  How did the labour court recently, in Anglo Gold Ashanti Ltd and Others v Association of Mineworkers and Construction Union and Others (2019) 30 SALLR 216 (LC), interpret these requirements:

In Anglo Gold Ashanti, the labour court followed the following approach:

  1. section 66(2)(c) of the LRA places emphasis on the effect that a secondary strike may have on the business of the primary employer and this is a factor that requires consideration in determining the reasonableness of the strike. This entails an enquiry into the nature and extent of the secondary strike, which involves an enquiry into its impact on the secondary employer. It also entails an enquiry into the possible direct or indirect effect that the secondary strike may have on the business of the primary employer. Ultimately, it is a proportionality assessment aimed at determining whether the harm caused by the secondary strike to the secondary employer is in proportion to the effect or impact or potential effect or impact on the business of the primary employer. If the harm caused to the secondary employer is in proportion to the effect of the secondary strike on the business of the primary employer, the secondary strike satisfies the requirements of s66(2)(c) of the LRA and the strike will be protected and, if it does not, the strike will be unprotected;
  2. essentially, it is an enquiry into the extent of the pressure that is placed on the primary employer (see SA Local Government Association v SA Municipal Workers Union (2007) 28 ILJ 2603 (LC) (‘SALGA1’), paragraph [16]);
  3. the relevant legal principles in regard to the reasonableness requirement were enunciated in SALGA1 as follows:

‘[16]   Whether or not a secondary strike is protected is determined by weighing up two factors – the reasonableness of the nature and extent of the secondary strike (this is an enquiry into the effect of the strike on the secondary employer and will require consideration, inter alia, of the duration and form of the strike, the number of employees involved, their conduct, the magnitude of the strike’s impact on the secondary employer and the sector in which it occurs) and secondly, the effect of the secondary strike on the business of the primary employer, which is in essence an enquiry into the extent of the pressure that is placed on the primary employer’;

  1. the labour appeal court in SALGA v SAMWU (2011) 32 ILJ 1886 (LAC) (‘SALGA2’), at paragraph [95], upheld SALGA1 and confirmed that s66(2)(c) of the LRA imported a proportionality test and that the proportionality enquiry involved in s66(2)(c) is about the weighing up of two factors: the reasonableness of the nature and extent of the secondary strike, thus the effect of the strike on a secondary employer, and the effect of the nature and extent of the secondary strike on the business of the primary employer; and
  2. In SALGA2, the labour appeal court confirmed that:

‘[10]      Under the heading of proportionality, the court must weigh the effect of the secondary strike on the secondary employer and the effect of the nature and extent of the secondary strike on the business of the primary employer.  The subsection does not require actual harm to be suffered by the primary employer but that there must be the possibility that it may. The harm that the employer may suffer is not required to be direct. It may be harm that indirectly affects the business of the primary employer. It would, therefore, in every case require a factual inquiry to determine whether or not the possible effect the secondary strike will have on the business of the primary employer is reasonable. The harm that may be suffered by the secondary employer must be proportional to the possible effect the secondary strike may have on the business of the primary employer.’

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)?