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]).

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?