LabourEdge is the sharp edge of labour law, human resources and employee relations.

It is designed by the SALLR team to assist busy practitioners when the boundaries of their knowledge, skills and insight are being challenged. On an ongoing basis, the latest developments are identified so that you can stay ahead of the game. Well-researched solutions are provided that will save you the time and effort slogging through periodicals, opinions, judgments, awards and publications.

Article 30/2022

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

Article 28/2022

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

Article 29/2022

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?

Article 27/2022

The current test of review, which relies on flaws in the arbitrator’s reasoning, has been clearly articulated in the Goldfields Mining judgment dealt with in a previous article [Article 26/2022]. This test has been further articulated by the labour appeal court in Head of Department of Education v Mofokeng (2014) 25 SALLR 82 (LAC); (2015) 36 ILJ 2802 (LAC), and the following extracts from such judgment serve as clear guidelines for formulating grounds of review

Article 26/2022

In Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (2014) 24 SALLR 41 (LAC); (2014) 35 ILJ 943 (LAC); [2014] 1 BLLR 20 (LAC), the labour appeal court has also emphasised that picking away at threads of an arbitrator’s reasoning in a piecemeal fragmented fashion is not the correct way to approach a review. Although the court was referring to a review based on irregularities in the conduct of arbitration proceedings, it is apparent, from the passage cited below, that this principle is applicable to any review premised on grounds of unreasonableness

Article 25/2022

The constitutional court recently found that it was obliged to assign to s77 of the BCEA a meaning that promotes access to the labour court rather than a meaning that prevents that access.  It held so because s34 of the Constitution guarantees access by applicants to the labour court, which must resolve the disputes by means of a fair hearing and by application of law.  Taking such viewpoint into account, the constitutional court held that the labour court has jurisdiction in respect of all matters arising from the LRA, barring the exception, namely, where the LRA itself provides otherwise (for example, s77(3) stipulates that the labour court enjoys concurrent jurisdiction with civil courts in matters concerning contracts of employment).  Such exclusivity is, however, subject to the Constitution and the jurisdiction of the labour appeal court.  This also means that, on a proper reading of s77 of the LRA, as soon as a dispute is ripe for litigation, the claimant is entitled to refer it to the labour court.  Taking the above into account, what was the viewpoint of the constitutional court as to whether or not the labour court has the required jurisdiction to deal with matters in terms of the LRA only after the matter has been dealt with by the relevant labour inspector?

Article 24/2022

With reference to Mogalakwena Local Municipality v The Provincial Executive Council, Limpopo and Others (2014) JOL 32103, what were the principles recently endorsed by the labour court in Munthali v PRASA (2021) 32 SALLR 22 (LC) when considering whether or not an applicant has established the required urgency when demanding re-employment on an urgent basis?

Article 23/2022

In the scenario where a senior employee enters into an agreement resolving a grievance of employees, on what basis did the labour appeal court recently hold that such employer is estopped from denying the authority of such senior employee to enter into such agreement?  And, what role does the conduct of the agent play, on the one hand (i.e. the senior employee), and, on the other hand, what role does the conduct of the principal play (i.e. the senior employee’s superior)?

Article 22/2022

What is the difference between contractual, statutory and collective agreement rights and obligations?

Article 21/2022

What are the incompatibility principles recently identified by the labour appeal court in, inter alia, Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk?