Article 65/2021

Labour Edge

What is the purpose of a strike or lockout notice?

In NASECGWU and Others v Donco Investments (Pty) Ltd (2010) 31 ILJ 977 (LC), at paragraph [16], the labour court held as follows:

‘What, however, stands out from all of these cases is the fact that it is the purpose of the strike or lockout notice to give the employer or the union and employees an opportunity to reflect on the proposed action and their response thereto. The reason for allowing the parties this opportunity is obvious: Once a lockout is instituted, the employer does not have to remunerate the locked out employees. Likewise, once the employees embark on strike action because the employer does not wish to accede to their demands, the principle of no work no pay will apply. The economic consequences of any decision taken during the 48-hour notice period are therefore important to both parties. The possibility of settling the dispute either by making a counter-proposal which may eventually settle the dispute or acceding to a demand in order to avert the strike or even abandon the strike or lockout, is of equal importance. It is therefore, in my view, clear that the legislature had intended to afford parties an opportunity to reflect on the consequences of the lockout or strike notice. Section 64(1)(c) read in its proper context and read against at least two of the primary objects of the LRA, which are to promote collective bargaining and to promote the effective resolution of labour disputes, must be interpreted to mean that the 48-hour notice serves as an opportunity to parties to reflect on the consequences of the strike or lockout notice.’

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)?