Article 56/2021

Labour Edge

When a secondary employer seeks an interdict prohibiting a secondary strike, what is the nature of the onus on the secondary employer?


In Samancor Ltd and Another v National Union of Metalworkers of SA (1999) 20 ILJ 2941 (LC), [1999] 11 BLLR 1202 (LC), the court held that:

‘[5]     If an interdict is sought, the onus rests on the secondary employer, even on the return day, to prove that the interdict should be granted. The employer must show that the conditions for embarking on a secondary strike have not been met. The employer would therefore also have to show that, as in this case, the secondary strike is unreasonable or not proportional.

[6]      The union would have to rebut any prima facie case that the employer may make out and may have to justify its decision to have embarked on the secondary strike.

The scenario is as follows: an employee is reinstated, not to the date of his dismissal but limiting the employee’s entitlement to remuneration to 24 months.  The employee argues that he or she is entitled to interest on the back pay payable for the 24-month period in terms of s75 of the Basic Conditions of Employment Act 75 of 1997.  Is the employee, according to Mashaba and Another v Telkom SA Soc Ltd (2020) 31 SALLR 147 (LAC); (2020) 41 ILJ 2437 (LAC), entitled to be paid interest on the back pay from the date of the judgment or, alternatively, entitled to also be paid interest in respect of the periods before the judgment?

A reinstatement order does not in itself reinstate an employee.  How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC), determine the consequences of such order and how is such reinstatement order enforced?

What is the distinction between s50(2)(a) compensation and s50(2)(b) damages of the EEA and compensation when an automatically unfair dismissal, in terms of s187(1)(f) of the LRA, occurs?