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.’

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.