If the lock-out had been implemented in response to a strike by employees, and the employees subsequently abandon their strike action and tender their services to the employer, the employer is not obliged to accept the tender. The employer can uphold the lock-out until such time that the employees have unconditionally agreed to the employer’s demands. This was demonstrated in National Union of Metalworkers of South Africa and Others v Bumatech Calcium Aluminates (J 303/16)  ZALCJHB 364 (9 November 2018).
In this case, NUMSA brought an application to the labour court to have a lock-out which was imposed by the employer declared unlawful and illegal. The salient facts were that, the employer issued a notice to NUMSA inviting it to consult in terms of s189 of the LRA. The consultation was however placed in abeyance at NUMSA’s request. During this time, the employer informed its employees that it was introducing a change to the employees’ shifts as a cost-saving initiative. As a response to the shift changes, NUMSA referred a dispute to the CCMA alleging that the employer had unilaterally changed the terms and conditions of its members’ employment. The dispute could not be resolved through conciliation. The employer then served NUMSA with a lock-out notice. NUMSA subsequently served the employer with a strike notice. NUMSA’s members thereafter embarked on a protected strike.
In its application before the court, NUMSA submitted that the employer’s lock-out was unlawful because it had addressed a letter to the employer requesting a meeting with the view of resolving the dispute between the parties. In the letter, NUMSA had further conveyed its intention to suspend the strike and for its members to return to work. However, when the NUMSA members attended at the employer’s premises to tender their services, the employer denied them access by enforcing the lock-out. The employer responded by demanding that NUMSA and its members give an undertaking that they would refrain from acts of violence and intimidatory conduct. NUMSA contended that the employer’s condition rendered the lock-out unlawful as it illustrated that the lock-out was based on disciplinary issues, and that it ought not to have continued since the strike, to which it was in response to, had been called off.
The employer’s contention was that the lock-out was lawful because NUMSA had not abandoned the strike and had not accepted the demand for shift changes unconditionally, therefore there was still a live dispute between the parties. NUMSA retaliated by challenging the employer’s lock-out notice on the basis that it did not disclose what NUMSA and its members had to do in order to resolve the dispute.
The court in its decision held that NUMSA knew that the employer wanted to implement changes to the shifts, and that NUMSA’s claim that it did not know what it had to do to resolve the dispute in order for the lock-out to be uplifted was without merit. The court further held that NUMSA’s correspondence to the employer did not show an intention by NUMSA to accept the employer’s demands unconditionally. The court ultimately dismissed NUMSA’s application and held that it failed to prove that the employer’s lock-out was unlawful.
From this case, it is important for employers to note that the lock-out notice must not only inform employees of the employer’s demand, but must also clearly set out what the employees are required to do in order to end the dispute and have the lock-out uplifted by the employer, in order to avert any challenges to the notice by employees.