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Article 67/2022

What are the latest developments in respect of lockouts?

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The approach adopted in Transport and Allied Workers Union of South Africa v PUTCO (2016) 27 SALLR 22 (CC); (2016) 37 ILJ 1091 (CC); [2016] 6 BLLR 537 (CC), read together with the labour court’s recent judgment in SA Commercial Catering and Allied Workers Union v Sky Country Meats Thaba’Nchu (Pty) Ltd (2020) 31 SALLR 160 (LC); (2020) 41 ILJ 2913 (LC), entails the following:

  • an unpacking of the definition of ‘lockout’ as well as the definition of ‘issue in dispute’ in s213 of the LRA entails:
  • an acknowledgment that the format of a lockout is the exclusion by the employer of its employees from the employer’s workplace
  • the purpose of compelling the employees to accept a demand made by the employer
  • the nature of the employer’s demand concerns a matter of mutual interest between the employer and employee
  • the ancillary benefit for the employer is that it is permitted to breach the contracts of employment in the course of and for the purpose of a lockout
  • that the necessary implications of the aforesaid exposition are that a demand made by the employer must precede the institution of a lockout and that the lockout notice does not constitute the required preceding demand – an issue in dispute must precede the institution of the lockout, same amounting to a demand, grievance or issue forming the subject matter of the lockout
  • when unpacking s64(1)(a), read with s64(1)(b), of the LRA, the following phases in implementing a lockout can be identified:
  • first phase: an application of s64(1)(a)
  • the issue in dispute must be referred to the CCMA or the relevant bargaining council for conciliation
  • second phase: an application of s64(1)(a)(i), read with s64(1)(a)(ii)
  • a certificate of non-resolution issued or the expiration of a 30-day period (or an extension agreed upon by the parties) since the CCMA/bargaining council received the referral is to occur before the lockout notice is issued
  • third phase: an application of s64(1)(c)
  • 48 hours’ written notice of the lockout must be given to any trade union that is a party to the dispute or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be concluded in a council, in which case notice must be given to that council (or, in the case of a proposed strike or lockout where the state is the employer, at least seven days’ notice of the commencement of the strike or lockout has been given to the parties contemplated above)
  • further necessary implications of the aforesaid phased approach:
  • an issue in dispute must proceed a referral to conciliation
  • the issue in dispute must be between the relevant parties and the relevant subject matter referred to conciliation – a lockout is only permitted in respect of the said subject matter and the said parties

See further NUMSA v Trenstar (2021) 32 SALLR 23 (LC); (2021) 42 ILJ 555 (LC)

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)?