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Article 63/2021

Labour Edge

Is it a requirement that a strike must actually start before a lockout can be lawfully implemented?

In Technikon SA v National Union of Technikon Employees of SA (2001) 22 ILJ 427 (LAC), at paragraph [29], the following was stated:

‘S64 also does not say that once employees have given notice to strike or once they have begun with their strike before the employer can either give its notice to lockout or can institute its lockout, the employer can no longer exercise its recourse to lockout under s64(1) even if all the requirements have been met. Equally, there is no provision to the effect that, if the employer has given the notice to lockout first or has begun with its lockout before the employees can begin with their strike or can give their notice to strike, the employees lose their right to strike. This, therefore, means that a lockout may commence before, simultaneously with, or, after, a strike has commenced. It also means that a lockout and a strike can run concurrently between the same parties. What this would mean in practice is that the strikers would be excluded from the premises of the employer.’

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)?