Jurisdiction boundaries redrawn: Constitutional Court clarifies limits of the Labour Court's jurisdiction over compensation claims arising from protected strikes

Facts

• In May 2021, SACCAWU issued formal notice to Massmart of its intention to embark on a protected strike for which picketing rules had been established. Massmart subsequently alleged that SACCAWU, its supporters and its members engaged in conduct that transgressed the prescribed picketing rules and failed to comply with statutory and constitutional obligations, including those set out in the LRA, section 17 of the Constitution, the then Covid-19 regulatory measures, and provisions of the Occupational Health and Safety Act 85 of 1993, as amended (OHSA). According to Massmart, the strike was characterized by acts of intimidation, threats, and damage to property, which necessitated the closure of its stores and culminated in financial losses estimated at approximately R9 million.
• Following the conclusion of the strike, Massmart instituted proceedings in the Labour Court against SACCAWU, seeking compensation for losses incurred due to the actions of the union, its supporters and its members, when picketing during the protected strike. In the Labour Court, SACCAWU raised, inter alia, an exception relating to the Labour Court's jurisdiction to consider the claim. The Labour Court dismissed the exception. SACCAWU's appeal in the Labour Appeal Court (LAC) was also dismissed.

Legal Questions

• The Constitutional Court had to determine whether the Labour Court has jurisdiction to consider a claim for just and equitable compensation under section 68(1)(b) of the LRA for loss attributable to conduct that occurred during a protected strike.

• SACCAWU contended that Massmart’s claim was grounded in common law, maintaining that where criminal conduct arises in the context of a protected strike, any resultant civil liability must be adjudicated by the High Court in accordance with delictual and contractual principles. Further, that the Labour Court does not have jurisdiction to grant compensation under section 68(1)(b) of the LRA where the strike is protected.

• Massmart argued that the provisions of section 68(1)(b) encompass any unlawful conduct during strike action, regardless of whether the strike itself is protected.

Applicable Law

• Sections 67 (strike or lock-out in compliance with the LRA), 68 (strike or lock-out not in compliance with the LRA) and 69 (Picketing) of the LRA.

Application of law to facts

The majority judgment, having considered and interpreted sections 67, 68 and 69 of the LRA and the conflicting case law in National Union of Metalworkers of SA v Dunlop Mixing & Technical Services (Pty) Ltd [2020] ZASCA 161 and Stuttafords Department Stores Ltd v SA Clothing and Textiles Workers Union [2000] ZALAC 22 found that:

• Sections 67 and 68 of the LRA draw a deliberate distinction between protected and unprotected strikes. Section 67 deals with protected strikes and grants immunity from civil liability for participation in a protected strike and for conduct in contemplation or furtherance of a protected strike, subject to the qualification in section 67(8) that such immunity does not extend to conduct that may constitute an offence. However, the majority stressed that section 67 does not confer jurisdiction on the Labour Court to award compensation in respect of criminal conduct (or a delictual claim) in support of a protected strike.
• By contrast, section 68 is concerned with strikes and conduct that does not comply with Chapter IV of the LRA and the phrase " does not comply with the provisions of this Chapter" governs both the strike itself and conduct in contemplation or furtherance of that strike. Section 68(1)(b) therefore applies only where the strike is unprotected, or where the conduct is in furtherance of a strike that is unprotected. It does not create a statutory compensation remedy in the Labour Court for unlawful conduct committed during a protected strike.
• Section 68 is confined to strikes and related conduct that does not comply with Chapter IV of the LRA. Where unlawful conduct occurs during a protected strike, any claim for damages must be pursued in the High Court under ordinary delictual principles.
• The 2002 amendment to section 68(1)(b), which introduced the words "or conduct in the furtherance of a strike or lock-out", did not broaden the Labour Court’s jurisdiction to include conduct occurring during a protected strike. The amendment sought to align section 68(1)(b) with the balance of section 68 and did not disturb the basic focus on unprotected strikes or lock-outs.
• While section 69(12) permits the Labour Court to grant picketing-related relief, it does not extend section 68(1)(b) compensation to disputes concerning protected strikes. This provision does not import section 68(1)(b) compensation into disputes concerning protected strikes. Rather, section 69(12) preserves the Labour Court's power to grant picketing-specific relief, such as enforcing picketing rules, suspending pickets, or granting urgent interim relief. It does not create a basis for a damages-type compensation claim in the rubric of section 68(1)(b) where the strike is protected.
• The interpretation of section 68(1)(b) advanced by SACCAWU is the correct one, as it aligns with the ordinary meaning of the provision when read in its broader context within Chapter IV and the LRA.
• If the legislature had intended to vest the Labour Court with jurisdiction in respect of delictual conduct arising during a protected strike, it would have expressly done so in section 67.
• In Stuttafords, the LAC confirmed that the Labour Court does not have jurisdiction to award compensation for losses resulting from a protected lock-out, holding that section 68(1)(b) only applies to unprotected industrial action. The fact that Stuttafords was decided prior to the 2002 amendment of section 68(1)(b) does not diminish the persuasiveness of the reasoning adopted in that case, which aligns more closely with the purpose of the LRA. The Labour Court and LAC were found to have been wrong to reject this reasoning.
• Dunlop Mixing could not be applied because it was distinguishable on facts and the law, in any event, the remarks in Dunlop Mixing regarding sections 67,68 and 69 of the LRA were obiter.
• The appeal is upheld and the LAC's order is set aside and replaced with order upholding SACCAWU's exception (the Labour Court lacks jurisdiction).

Key takeaways

• A claim for just and equitable compensation under section 68(1)(b) cannot be considered by Labour Court where the underlying strike is protected.

• Unlawful or even criminal conduct during a protected strike may remove statutory immunity from civil liability, but it does not bring the dispute within section 68(1)(b) of the LRA.

• Where an employer suffers loss because of unlawful conduct committed during a protected strike, the appropriate claim would likely lie in delict and would be a claim that would be brought before the High Court.

• The Labour Court remains the appropriate forum for picketing disputes under section 69, including applications to enforce, vary or suspend picketing rules, and to obtain urgent interim relief where appropriate.