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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))
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?