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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]).
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)?