Article 58/2021

Labour Edge

What is the content of the reasonableness requirement to be complied with for a secondary strike to be lawful?


The reasonableness requirement involves a proportionality assessment: the harm caused by the secondary strike to the secondary employer must be in proportion to the harm potentially caused to the primary employer as a consequence of the secondary strike.  In the labour court’s view, this called for an assessment of three key issues:

  1. the effect of the secondary strike on the secondary employer;
  2. the possible direct or indirect effect that the secondary strike may have on the business of the primary employer; and
  3. the proportionality of the harm caused to the primary and secondary employers respectively.

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?