Co-authored by Heidi Davis

In a recent decision, the Labour Appeal Court (LAC), has clarified the jurisdiction of the Labour Court (the LC) in dealing with unlawful conduct during strikes.

The LAC upheld the Labour Court’s decision that section 68(1)(b) covers compensation for any unlawful conduct during a strike, whether the strike is protected or not. It further noted that unlawful conduct during a protected strike falls outside the immunity conferred on striking employees. The LAC held that the Labour Court has exclusive jurisdiction to award compensation for unlawful conduct during strikes, protected or not.

 It would be anomalous if an aggrieved employer could not pursue a claim for compensation for such conduct in the Labour Court.

The case revolves around an appeal to the LAC by a well-known trade union against a judgment of the Labour Court which dismissed the exception raised by the union in response to a claim in terms of Section 68(1)(b) of the Labour Relations Act (the LRA) by a well-known retail group (the employer) for damages as compensation for losses sustained due to unlawful conduct by members of the union during a protected strike. The union argued that compensation for losses during a protected strike should be pursued under the common law in the civil courts, such as the High Court, and not under the LRA in the Labour Court.

The case turned on the interpretation of sections 67 and 68 of the LRA. Section 67 defines what constitutes a protected strike, namely whether several requirements of the LRA have been complied with, and provides immunity to striking employees against delictual and breach of contract claims for participation in protected strikes. Section 68(1)(b) grants the Labour Court exclusive jurisdiction to order just and equitable compensation for any loss attributable to unlawful conduct during strikes but does not specify whether this includes protected and unprotected strikes.

The Labour Court held that it would be undermine the Labour Court’s role as a specialist court and the comprehensive legislative framework of the LRA to limit claims for compensation for loss attributable to unlawful conduct during protected strikes to the civil courts.

On appeal, the union contended that Section 68(1)(b) does not apply to protected strikes and that the Labour Court’s exclusive jurisdiction to grant compensation for losses resulting from unlawful conduct during strike action only applies to unprotected strikes. To support this contention the union referenced the heading of section 68 and the wording of section 68(1), which refers to “Strike…not in compliance with this Act” and “any conduct….that does not comply with the provisions of this Chapter” respectively. As such, the union submitted that the employer’s claim was not provided for in the LRA but instead lay in common law.

The employer argued that section 68(1)(b) does apply to protected strikes and maintained that it would have a chilling effect on the Labour Court’s ability to control strike violence if it was not able to award compensation for losses attributable to strike violence during both protected and unprotected strikes.

The LAC, in upholding the Labour Court’s decision, emphasised that the outcome relies on a sensible interpretation of section 68(1)(b).

This judgment serves as a reminder to employers and trade unions that the Labour Court holds exclusive jurisdiction to award compensation for losses due to unlawful conduct during protected and unprotected strikes and that the High Court is not the forum for adjudicating such claims. Read the full judgment here: South African Commercial Catering and Allied Workers Union v Massmart Holding Limited and Others (JA119/2022) [2024] ZALAC 13 (29 April 2024) (saflii.org)