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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))
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)?