Article 61/2022

Compensation for loss attributed to an unprotected strike/lockout as opposed to a protected strike/ lockout

Section 68(1)(b) of the LRA gives the labour court exclusive jurisdiction to determine just and equitable statutory compensation for losses attributable to unprotected strike action.  How did the high court recently approach the issue as to whether or not the labour court has jurisdiction to order payment of just and equitable compensation for any loss attributable to protected strike action or to entertain delictual actions?

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In Blinkwater Mills (Pty) Ltd and Another v FAWU (2020) 31 SALLR 161 (ML), the high court adopted the following approach to such issues:

  • s68(1) provides as follows:

‘Strike or lockout not in compliance with this Act

    1. In the case of any strike or lockout, or any conduct in contemplation or in furtherance of a strike or lockout, that does not comply with the provisions of this Chapter, the Labour Court has exclusive jurisdiction –
    1. to order the payment of just and equitable compensation for any loss attributable to the strike or lockout, or conduct, having regard to –
      1. whether –

(aa) attempts were made to comply with the provisions of this Chapter and the extent of those attempts…’

unprotected strike/lockout

  • s186(1)(b) of the LRA is applicable
  • a statutory cause of action is, therefore, applicable, entailing the awarding of just and equitable compensation
  • the labour court has exclusive jurisdiction in such a matter: Rustenburg Platinum Mines v Mouthpeace Workers Union (2001) 22 ILJ 2035 (LC)

protected strike/lockout

  • s186(1)(b) of the LRA is not applicable and no statutory cause of action exists.  However, this is a claim to be dealt with by the high court
  • the claim is, in essence, a damages claim based upon delictual principles, entailing, inter alia, the following:
  • the claim covers any loss caused by unlawful, intentional or negligent acts or omissions
  • the claimant is entitled to the full extent of the loss proven (Motor Industry Staff Association v Macun NO and Others 2016 (5) SA 76 (SCA); (2016) 37 ILJ 625 (SCA))

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).