Article 62/2021

Labour Edge

It is settled law that one of the requirements of a lockout is that it is to be preceded by a demand from the employer in respect of a matter of mutual interest.  Does this equate to a lockout notice?

  1. It is, however, important to appreciate that the lockout notice itself does not constitute the demand by the employer, but is simply a notification of the industrial action to be implemented by the employer as a result of a demand that already exists. This is evident from the following dictum in Transport and Allied Workers Union of SA v Putco Ltd (2016) 37 ILJ 1091 (CC),:

‘[36]   The LRA clearly distinguishes between a notice and a demand and does not use the two interchangeably. The purpose of a lockout notice is to inform a union and its members of an impending lockout. In other words, recourse to a lawful lockout must already be available. An employer is not entitled to resort to a lockout if it has not yet made a demand to those employees who are to be excluded from the employer’s workplaces.’

  1. The issue of what constitutes a demand in the context of a lockout was further elaborated on by the Court in United Transport and Allied Trade Union/SA Railways and Harbours Union and Others v Autopax Passenger Services (SOC) Ltd and Another (2014) 35 ILJ 1425 (LC), at paragraph [60], as follows:

‘In addressing this issue, the pertinent question to be answered is what, in the context of collective bargaining, constitutes a “demand”. The starting point in this enquiry is the definitions section in the LRA, which defines a “dispute” as “a dispute includes an alleged dispute”, and “issue in dispute” as “in relation to a strike or lockout, means the demand, the grievance, or the dispute that forms the subject matter of the strike or lockout”. What is clear from these definitions is that to use the word “demand” in the context of the sole subject-matter of a lockout is not really correct. The definition provides for both a “demand” and a “dispute” as being susceptible to forming the subject-matter of a lockout. The problem that arises in respect of this issue is that “demand” and “dispute” are often regarded as synonyms, when they are not.’

  1. It therefore follows that, where a trade union tabled a demand relating to conditions of employment with an employer, and that dispute is referred to conciliation but remains unresolved, a lockout may be implemented by an employer as part and parcel of the collective bargaining process to resolve the impasse, irrespective of whether a strike starts or not (Putco (supra), paragraph [45]; Autopax (supra), paragraph [42]; Technikon SA v National Union of Technikon Employees of SA (2001) 22 ILJ 427 (LAC), paragraph [16]).

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.