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.’

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.