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.
What approach did the constitutional court recently adopt, in NUMSA v Trenstar (Pty) Ltd (2023) 44 ILJ 1189 (CC)?
Is an employer entitled to rely on s68(1)(b) of the LRA to claim compensation for losses suffered during a protected strike/lockout?
In the scenario where an employer was not permitted to trade during the Covid-19 lockdown (i e hard lockdown), are the employees, who could not tender their services lawfully, entitled to their normal benefits, such as leave and bonus benefits?
What are the principles regulating demotion as an alternative sanction to dismissal and how is the jurisdiction of the CCMA affected by the agreement of the employee to such sanction?
What are the principles regulating the scenario where an employer permits an employee to continue working after reaching the agreed or normal retirement age but subsequently terminates his/her services on the basis that the retirement age has been reached?
In assessing if reinstatement is fitting after CCMA deems dismissal in a fixed-term contract unfair, what factors guide this determination?
Is a binding agreement between a retrenching employer and the alternative employer required for the above section to be applicable and what role does the retrenching employer have to play in arranging alternative employment for such section to be applicable?
An accountant at a municipality faced dismissal for attempting to access the account. Reinstated after appealing to the bargaining council, new charges of dishonesty and IT policy breach led to another dismissal.
The Code of Good Practice: Dismissal (Schedule 8 of the LRA) does not contemplate a criminal justice model incorporating formal charge sheets, formal procedures for leading and cross-examination of witnesses, formal rules of evidence and legal representation.
In an alleged workplace bullying environment, there will most probably be two versions of what occurred – the version of the alleged offender and the version of the alleged victim.
What are some of the important principles applicable when considering workplace bullying?
What is the difference between the reasonable employer test and the reasonable decision-maker test and why is this of importance?
It is well-established that an employee has available to him/her various statutory causes of action dealing with alleged conduct of an employer.
On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?
Is an employer vicariously liable where its employee is sexually harassed by a superior employee?
It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).
Up to now, the traditional approach in respect of collective agreements was that the civil courts do not have jurisdiction in respect of the interpretation or application (inclusive of breaches) of collective agreements.
With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).
In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?
Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.
Often employment contracts contain a clause to the effect that the agreement is the sole record of the terms existing between the parties and that any variation or amendment thereof will only be valid if reduced to writing and signed by both parties.
When appearing in the labour court in motion proceedings and there are material disputes of fact, should the matter be referred for oral evidence?
Motion proceedings (including applications in terms of rule 31 of the CCMA rules) are not designed to resolve disputes of fact, but indeed disputes of law.
The supreme court of appeal, in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), at paragraph [18], formulated the approach to be adopted when interpreting legislation, other statutory instruments or any contract.
Seeing that employees can challenge their dismissal on the basis of unlawful conduct, it has not taken long for employees to jump at every opportunity to try and utilise this avenue.
What is the viewpoint of the labour appeal court, as expressed in SA Municipal Workers’ Union obo Morwe v Tswaing Local Municipality and Another [2023] 2 BLLR 131 (LAC); (2022) 33 SALLR 60 (LAC)?
An employer set out its employees’ rights in disciplinary hearings in the applicable disciplinary code and incorporated same into their employment contracts.
What are the options available to an employee when an employer allegedly owes such employee monies in terms of a contract of employment?
By now, it is firmly established that the workplace is governed by both statutory and contractual rights and obligations.
What are the fundamental principles differentiating the aforesaid scenarios?
The constitutional court, in NUMSA v Marley Pipe Systems (2022) 33 SALLR 22 (CC), indicated, in no uncertain terms, that the labour appeal court in this matter incorrectly created various principles.
Is it permissible for an employer, when misconduct occurs, to dismiss employees on the basis of operational requirements?
SACCAWU and Others v Makgopela, the CCMA and Cashbuild (Pty) Ltd 2023 (44 ILJ 1229 (LAC); (2023) 34 SALLR 73 (LAC) is the first labour appeal court judgment handed down, so referring to derivative misconduct, after the constitutional court judgment of NUMSA v Dunlop Mixing and Technical Services (2019) 30 SALLR 2 (CC).
On what basis are the principles of team misconduct applicable where an employer attempts to hold a group of employees accountable when stock losses occur within the retail sector?
The Labour Relations Act 66 of 1995 (‘LRA’) has created a statutory formula to be applied when dealing with breaches of workplace rules.
What are the requirements to be met to obtain an interdict against unlawful conduct during a protected strike where the employees against whom the employer wants to obtain this interdict did not personally commit the unlawful conduct?
What is the extent of the duty of an applicant during an interview to make disclosure to his/her prospective employer as to the basis upon which his/her employment with the previous employer was terminated?
The workplace has become an ever-increasing dishonest place. It is apparent that this dishonesty already creeps in when people apply for jobs and present their curriculum vitae.
How should an employee be dealt with if tested positive for being under the influence of cannabis?
Has the decriminalisation of the use of cannabis in private surroundings had any effect on the
approach to be adopted?
In order to determine whether s197 of the LRA is applicable to a change in service providers, in essence entails a factual question as to whether or not the relevant preconditions are simultaneously met, namely, a transfer, of the business (or part thereof) as a going concern.
With reference to the most recent judgment of the constitutional court in Road Traffic Management Corporation v Tasima; Tasima v Road Traffic Management Corporation (2020) 41 ILJ 2349 (CC), what are the relevant factors to be considered when determining such factual question?
From article 41/2023, it is evident that a successful applicant in terms of an unfair discrimination claim (evaluated in terms of the EEA) is entitled to both compensation and damages, whereas, if the claim was considered in terms of the LRA (on the basis of being an automatically unfair dismissal in terms of s187(1)(f) of the LRA) the employee would not be entitled to a damages claim.
What is the distinction between compensation and damages awarded in terms of the EEA and compensation awarded for an automatically unfair dismissal in terms of the LRA?
The previous three articles respectively dealt with compensation in terms of s193(2)(d) of the LRA, compensation when s193(2)(a) to s193(2)(c) of the LRA are applicable and remedies so available to a successful applicant in an unfair labour practice action.
Contrary to the above, what are the specific remedies available to a successful applicant in an automatically unfair dismissal or unfair discrimination dispute?
What are the remedies available to a successful applicant in an unfair labour practice dispute?
Article 38/2023 dealt with the calculation of compensation when a dismissal is only procedurally unfair in terms of s193(2)(d) of the LRA. On the other hand, how is compensation to be calculated when s193(2)(a) to s193(2)(c) of the LRA are applicable?
How is compensation to be calculated when a dismissal is only procedurally unfair – i e when section 193(2)(d) of the LRA is applicable?
On the basis of the constitutional court’s approach in McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (2021) 32 SALLR 33 (CC), it is apparent that arbitrators and the courts are required to separately consider substantive fairness and procedural fairness issues when determining compensation.
It therefore appears not to be permissible for arbitrators and courts to consider fairness holistically, but what is required is to determine various relevant factors relating to substantive fairness and procedural fairness, independently, in determining compensation.
What is the recommended approach therefore to be followed in the light of the aforesaid approach of the constitutional court?
Articles 34/2023 and 35/2023 dealt with the general approach in dealing with compensation where a dismissal is substantively unfair or, alternatively, substantively and procedurally unfair.
However, it appears that the calculation of compensation, if the unfair dismissal took place on the basis of operational requirements, may be treated slightly differently.
What are the relevant principles that practitioners should be aware of when executing dismissals for operational requirements with reference to this deviation?
What is the rationale for awarding compensation?
What are the types of factors to be taken into account to determine whether compensation should be
awarded?
The constitutional court, in McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (2021) 32 SALLR 33 (CC), identified the different discretions applicable when an arbitrator, firstly, makes the decision to award compensation and, secondly, determines the amount of compensation – not to be confused with the amount of back pay which was covered in articles 32/2023 and 33/2023.
What are the principles to be extracted from this judgment of the constitutional court that would be applicable during arbitrations and court proceedings when dealing with the issue of compensation?
In article 32/2023, we dealt with the relevant factors determining the period of reinstatement and the relevant factors determining the amount of back pay. In this article, we deal with the difference between the amount of back pay and compensation calculated in terms of s193(1)(c) read with s194(1) of the LRA.
The constitutional court, in Booi v Amathole District Municipality (2022) 32 SALLR 51 (CC), clearly spells out the difference between the aforesaid remedies.
What are the factors to be taken into account to determine the period of reinstatement?
What are the factors to be taken into account to determine the amount of back pay?
As has been the case as set out in article 30/2023, reinstatement or re-employment is the primary remedy but for the existence of the statutory defences.
Article 30/2023 dealt with s193(2)(b) of the LRA, whereas this article deals with the application of s193(2)(c) of the LRA.
What is the content of the defence of not being reasonably practicable to reinstate or re-employ as recently applied by the labour appeal court in Sibiya v SAPS (2022) 33 SALLR 28 (LAC), based on the viewpoint originally expressed by the constitutional court in 2019?
In Booi v Amathole District Municipality (2022) 32 SALLR 51 (CC), the constitutional court specifically dealt with the statutory exceptions to reinstatement or re-employment as a primary remedy.
What are the important principles that practitioners are to be aware of when considering the content of s193(2)(b) of the LRA, namely, that the continued relationship is made intolerable?
The labour appeal court recently, in Mthethwa v CCMA (2022) 33 SALLR 26 (LAC), reiterated some very important principles governing the peremptory nature of the relief of reinstatement or reemployment. In the light of the above, what approach should be adopted by the labour court or the arbitrator when considering such relief?
Does a reinstatement order in itself reinstate an employee?
Does a reinstatement order restore the contract unfairly terminated?
What are the potential remedies should a dismissal be substantively or substantively and procedurally
unfair?
Is there a difference between such remedies if the dismissal is for misconduct or incapacity, as
opposed to operational requirements or automatically unfair dismissals?
What is the potential relief if the dismissal is only substantively unfair?
The constitutional court recently, in McGregor v Public Health and Social Development Sectoral Bargaining Council (2021) 32 SALLR 33 (CC), had the opportunity to deal with the perception that, once a finding is made that an employee has been unfairly dismissed, he or she is automatically entitled to a remedy.
What was the approach adopted by the constitutional court?
We all know that the constitutional court, in Sidumo and Congress of SA Trade Unions v Rustenburg Platinum Mines Ltd, the CCMA and Moropa NO (2008) 19 SALLR 35 (CC) rejected the reasonable employer test and introduced the reasonable decision-maker test, when dealing with reviews of arbitration awards. Since then, various approaches have been adopted to better understand the reasonable decision-maker test and what is set out hereunder is a summary of such test.
On what basis can an employer claim for losses attributable to an unprotected strike or conduct in contemplation or furtherance of such strike?
Delictual claims may be instituted by an employee as an alternative, or in conjunction with various statutory claims. How do these civil claims, based on delict, fit into the following scenarios
What is the interpretive approach to be adopted in respect of, inter alia
What is the quantum of damages suffered by an employee in all cases of the unlawful termination of a contract.
What is the effect of the BCEA Amendment Act 2018 on the dispute-resolution path for monies owed in terms of the National Minimum Wage Act, a contract of employment, sectoral determination or collective agreement?
The constitutional court, in NUMSA v Marley Pipe Systems (2022) 33 SALLR 22 (CC), held that the labour appeal court wrongly created the following principles pertaining to common purpose misconduct
Finally, the constitutional court, in NUMSA v Dunlop Mixing and Technical Services (2019) 30 SALLR 2 (CC), had to determine the content of derivative misconduct, so entailing an alleged duty on an employee to disclose his knowledge of primary misconduct.
What approach did the constitutional court adopt?
In the scenario where there is a lawful assembly, demonstration, picket, the presentation of a petition or strike action but unlawful conduct occurs, on what basis can an interdict be obtained to restrain such conduct against bystanders who do not participate in the actual unlawful conduct – simply put, is mere participation in such lawful action, such as strike action, sufficient to establish a link?
Is an employer entitled to institute a second disciplinary enquiry relating to a new and different charge
as compared to the original disciplinary enquiry?
Is an employer entitled to, after having informally handed down a sanction, to subject an employee to
a formal enquiry?
After a first enquiry, is an employer entitled to ask the employee to make representations as to why
the original sanction should not be altered?
Is an employer entitled to substitute a sanction where same is not permitted by such employer’s
disciplinary code?
What are the factors to be taken into account to determine whether misconduct committed outside the workplace, not in execution of duties and outside working hours, including the use of social media,
could be addressed by an employer and be subject to disciplinary procedures?
If the employer holds the viewpoint that it would never have employed an employee had it known about certain factors which the employee failed to disclose, what are the potential remedies for such an employer?
What is the extent of the duty on a person when applying for a job to disclose the circumstances under which his or her employment with a previous employer had been terminated?
On what basis can an employer institute civil action against an employee for misrepresenting his qualifications and falsely claiming that he received a better job offer that induced the employer to increase such employee’s salary to match the offer?
Under what circumstances will a transcript of an internal disciplinary enquiry be admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act 45 of 1998, thereby constituting prima facie proof of misconduct?
On what basis can an employer reject a medical certificate utilised by an employee to justify his absence from the workplace?
Section 2 of the Public Holidays Act 36 of 1994 (‘the Act’) provides:
‘Days to be observed as public holidays
(1) The days mentioned in Schedule 1 shall be public holidays, and whenever any public
holiday falls on a Sunday, the following Monday shall be a public holiday.
(2) Notwithstanding the provisions of sub-section (1) any public holiday shall be exchangeable
for any other day which is fixed by agreement or agreed to between an employer and
employee.’
To what extent is an employer entitled to request that an employee’s pension benefits be withheld pending finalisation of civil and criminal cases for damages caused and unlawful conduct committed during such employee’s employment?
In terms of s60 of the Employment Equity Act 55 of 1998 (‘EEA’), an employer may be vicariously liable for acts committed by an employee in breach of the EEA. In the above regard, the employer has certain obligations and failure to observe those obligations may result in the employer being deemed to have also contravened the EEA.
When will an employer be vicariously liable for the wrong committed by an employee, such as a
senior employee sexually harassing a junior employee, and therefore exclude the application of
COIDA?
Throughout an employee’s career, spanning approximately 40 years, he worked around noisy, heavy
machinery. Following a hearing assessment when he was 59, he was declared to be permanently
unfit for his normal duties due to noise-induced hearing loss. He was, therefore, forced to retire
permanently before the age of 65.
What is the content of the presumption entailing that such noise-induced hearing loss took place in
the course of the employee’s employment?
What are some of the guidelines to be taken into account to determine the degree of disability when
an employee sustained an injury at the workplace?
An employee has a pre-existing injury. However, subsequently, he was involved in an accident at
work which caused further injury.
Does the pre-existing injury affect compensation claimed by the employee for the latter injury?
An employee suffered severe injuries, whilst on duty and working on a machine. It is common cause
that the employee’s injuries were caused by the negligence of senior management whilst under the
influence of alcohol.
What are the principles applicable when injuries at work are caused by the negligence of senior
management as opposed to when same are caused by a co-employee or third party?
An employee arriving at work is faced with a group of striking workers, who proceed to abuse her emotionally…
A doctor is raped at work whilst performing her duties…
A teacher is shot at school during a tea break…
What are some of the important principles governing the applicability of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 (‘COIDA’) in the above circumstances as
opposed to the employer’s civil liability?
Demarcation disputes in terms of s62 of the LRA. Demarcation disputes between various bargaining councils are a sui generis species of dispute. It is a broad investigative process rather than the usual adversarial contest at arbitration. Policy decisions of policymakers play an important role in this regard. What are the main principles to be extracted from the approach recently followed by the labour appeal court in National Union of Metalworkers of SA v CCMA and Others (200) 31 SALLR 148 (LAC); (2020) 41 ILJ 1629 (LAC)?
The content of the term ‘another arbitrary ground’ in terms of s6(1) of the EEA. Does a collective agreement, concluded in a bargaining council regulating conditions of service of employees, constitute administrative action reviewable in terms of the Promotion of Administrative Justice Act 3 of 2000?
How did the labour appeal court recently interpret the phrase ‘any other arbitrary ground’ contained in s6(1) of the Employment Equity Act 55 of 1998?
Review of bargaining council exemption appeal authority. In terms of s158(1)(g) of the LRA, subject to s145 of the LRA, the labour court has the power to review the purported performance of any functions provided for in the LRA on any grounds that are permissible in law. In terms of s30(1)(k) of the LRA, the parties to a bargaining council are specifically mandated to include in a collective agreement an exemption procedure. What is the viewpoint of the labour appeal court as to whether or not the workings of such exemption body are subject to the review jurisdiction of the labour court in terms of s158(1)(g) of the LRA?
Are the decisions of domestic tribunals, such as exemption appeal authorities of bargaining councils, subject to review on common law grounds?
Helping hand principle: clauses 20 and 21 of the CCMA guidelines on misconduct. What is the criteria to be utilised to determine whether a commissioner is under a duty to comply with the so-called helping hand doctrine or principle? To what extent is a commissioner obliged, in terms of the so-called helping hand doctrine or principle, to extend such assistance to a party and what are the consequences of his or her failure in this regard?
What are the consequences of a commissioner’s failure to warn a party that hearsay evidence requires corroboration and negative inferences may be drawn from same?
Derivate misconduct
The constitutional court recently, in National Union of Metalworkers of SA obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others (Casual Workers Advice Office as amicus curiae) 2019 (5) SA 354 (CC); 2019 (8) BCLR 966 (CC), finally determined the principles regulating derivative misconduct. How has the labour court subsequently applied such principles?
Labour court practice manual: clause 11.2.3. How did the labour court recently identify the purpose of its practice manual? In the scenario where there is non-compliance with the required 60-day time period in respect of the filing of the record of proceedings under review, is the defaulting party simply to apply for condonation or also required to bring a separate application to revive the review application?
How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC); [2021] 4 BLLR 652 (LAC), interpret the first judgment of Madlanga J and the second judgment of Zondo J in National Union of Metalworkers of SA obo Fohlisa and Others v Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd) (2017) 28 SALLR 2 (CC); (2017) 38 ILJ 1560 (CC), so dealing, inter alia, with the implementation of an award or order?
Force majeure and impossibility of performance. In the scenario where an employer’s operations are placed under severe financial stress as a result of restrictions implemented when the Covid-19 pandemic enfolded, to what extent can an employer rely on force majeure? To what extent does the principle of impossibility of performance apply during the above time period?
What is the content of the common purpose doctrine in the misconduct environment?
Rule 25 of the CCMA rules
Rule 25(1)(a)(ii) of the CCMA rules states that the right of representation is extended to any office-bearer, official or a member of an employers’ organisation of which the employer party is a member. With reference to the definitions of ‘office-bearer’ and ‘official’, as defined in s213 of the LRA, it is apparent that officials are limited to persons employed by the organisation as the secretary, assistant secretary or organiser. How did the labour court recently apply these principles in determining whether or not so-called dispute advisers of an employers’ organisation, existing and established in terms of the LRA, are entitled to representation in terms of rule 25(1)(a)(ii) of the CCMA rules?
In determining whether or not an individual has the right to representation, is it only required, within the context of an employers’ organisation, that it be established that the organisation is a registered employers’ organisation, that the employer party to the dispute is a member of such organisation and that the individual representative from the employers’ organisation has been appointed in terms of its constitution? Assuming that a representative meets the requirements as set out in rule 25(1) of the CCMA rules, to what extent is a commissioner still entitled to enquire into various issues in terms of rule 25(5) of the CCMA rules and exclude such representative from the proceedings?
What are the principles governing frequent absenteeism due to illness, so formulated by the labour court in General Motors SA (Pty) Ltd v National Union of Metalworkers of SA and Others (2018) 39 ILJ 1316 (LC)?
Jurisdictional facts to be met before the CCMA can determine a picketing rule dispute in terms of s69 of the LRA. What are the jurisdictional facts to be met before the CCMA has jurisdiction to determine a picketing rule dispute in terms of s69 of the LRA, subsequent to the amendments of 2014 and 2018?
What is the approach to be adopted to resolve disputes of fact in motion proceedings?
Compensation for loss attributed to an unprotected strike/lockout as opposed to a protected strike/ lockout Section 68(1)(b) of the LRA gives the labour court exclusive jurisdiction to determine just and equitable statutory compensation for losses attributable to unprotected strike action. How did the high court recently approach the issue as to whether or not the labour court has jurisdiction to order payment of just and equitable compensation for any loss attributable to protected strike action or to entertain delictual actions?
Section 19(1) of the Labour Relations Amendment Act 8 of 2018 requires the Registrar of Labour Relations to perform two tasks in relation to a trade union whose constitution does not already provide for a recorded and secret ballot to be held before a strike, namely, firstly, consultation with the union’s office-bearers and, secondly, after such consultation, the issuing of a directive regarding the inclusion of the balloting requirement in the union’s constitution. What was the recent viewpoint of the labour appeal court as to whether or not there is an obligation on a trade union to amend its constitution so as to incorporate the required balloting provisions until the aforesaid consultation has taken place and until the directive has been issued? What is the recent viewpoint of the labour appeal court as to whether or not there is an obligation on such union to hold a secret ballot until such consultation and directive have occurred?
To what extent may an employer pay non-striking employees a bonus during a strike?
Extra-territorial jurisdiction. The scenario is as follows: a South African citizen is employed by a foreign branch of his or her employer. In order to obtain the required foreign work permit, it is required that such employee’s employment contract states that the foreign law of the country where the employee works is applicable. On what basis did the labour appeal court recently hold that, despite such contractual terms, the CCMA has jurisdiction to determine employment-related issues of such employee? In order to determine the jurisdiction of the CCMA in respect of extra-territorial scenarios, what is the meaning to be attached to ‘location of the employee’s workplace’ as opposed to ‘the place where the employer carries on an undertaking’?
The scenario is as follows: a trade union and an employer concluded a collective agreement for the period 2011 to 2012. The agreement governed matters such as salary increases, working hours, benefits and other terms and conditions of employment and was to remain binding on the parties until 30 June 2012. The union alleged that, in 2018, a dispute arose in that the employer failed to extend benefits in terms of the said collective agreement to certain employees. When the matter proceeded to arbitration before the CCMA, the employer challenged the jurisdiction of the CCMA alleging that the dispute was not referred within a reasonable time period.
Finally, the constitutional court dealt with the scenario where employees are precluded by a union’s constitution from becoming members and the purported admission of such employees as members of such trade union. On what basis did the constitutional court recently determine that such employees cannot be taken into account in determining such union’s entitlement to organisational rights?
The labour appeal court recently, in Department of Rural Development and Agrarian Reform; Eastern Cape v General Public Service Sectoral Bargaining Council and Others (2020) 31 SALLR 150 (LAC); (2020) 41 ILJ 1321 (LAC), confirmed that, in respect of the non-promotion of an employee, interference by an arbitrator or the court is limited to very specific circumstances. On what basis did the court make such a finding?
Finally, the labour appeal court, in Standard Bank of SA Ltd v Chiloane (‘Chiloane (LAC)’) (2021) 32 SALLR 11 (LAC); (2021) 42 ILJ 863 (LAC) had to determine whether or not an employer has the right to proceed with a disciplinary enquiry during a notice period when an employee terminates his or her employment in breach of a term requiring notice – what were the considerations and why are they relevant for future scenarios like this? What is the true effect of a resignation? What are the consequences of the requirement to give proper notice when resigning? What are the consequences of non-compliance with the contractual notice period when resigning? When does resignation take effect?
n the above circumstances, what are the requirements to be met for legal causation to have been established?
How does an employer deal with an employee in circumstances where such employee’s depression plays a role in the misconduct committed by such employee? When an employer has to deal with an employee who is allegedly depressed, how should the conative ability and cognitive capacities of such employee be dealt with? In the scenario where an employee suffers from depression and he or she alleges that he or she was dismissed on this basis, what is the content of the evidentiary burden on such employee when he/she relies on s187(1)(f) of the LRA?
The scenario is as follows: an employee files a grievance against a colleague and, after investigating such grievance and dismissing it, the employer charges the employee with several counts of misconduct relating to making false accusations of assault against such colleague, leading to her dismissal. On what basis did the labour appeal court recently find that s187(1)(d) of the LRA, dealing with automatically unfair dismissals, does not concern the filing of a grievance in the aforesaid circumstances?
How do you determine the true reason for the dismissal when, on the one hand, the employer contends that the dismissal is on the basis of operational requirements but, on the other hand, the employees contend that same is based on automatically unfair grounds, namely, the refusal to accept new terms and conditions of employment?
To what extent is a business rescue practitioner entitled to commence consultations regarding possible retrenchment without such process being contemplated in the company’s business rescue plan? To what extent are business rescue practitioners prevented from issuing notices in terms of s189(3) of the LRA in the absence of business rescue plans catering for such procedure?
In Rogers v Exactocraft (Pty) Ltd (2015) 36 ILJ 277 (LC), the labour court held that the period before retirement should not be taken into account when calculating an employee’s severance pay in accordance with s41(2) and s84 of the BCEA. To what extent did the labour appeal court recently express a different viewpoint?
In terms of s191(12) of the LRA, an employee being retrenched under certain limited circumstances has the choice of referring the matter either to arbitration or the labour court. Is s191(12) of the LRA applicable if the individual employee’s dismissal formed part of a bigger retrenchment exercise involving other employees?
What is the interpretation formula adopted in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), paragraph [18], to be applied to interpreting words used in any document, including legislation, other statutory instruments or contracts? In the 37th annual SALLR seminar workbook (2021), the aforesaid approach was adopted in respect of the interpretation of pre-trial minutes (page 77 of the workbook), the interpretation of various sections of the BCEA (page 112 of the workbook), the interpretation of strike ballot guidelines (page 99 of the workbook), the interpretation of the Gatherings Act (page 232 of the workbook) and the interpretation of various provisions regulating protest action (page 238 of the workbook).
What are the principles governing frequent absenteeism due to illness, so formulated by the labour court in General Motors SA (Pty) Ltd v National Union of Metalworkers of SA and Others (2018) 39 ILJ 1316 (LC)?
FEDCRAW v Smit Trading (2001) 22 ILJ 1945 (Arb) introduced the concept of team misconduct into the South African labour law environment. This approach was subsequently followed in Foschini Group v Maidi and Others (2010) 21 (3) SALLR 1 (LAC); (2010) 31 ILJ 1787 (LAC). Subsequently, the CCMA, on a consistent basis, followed such approach (e.g. Lekoko and Four Others v The Foschini Group (2013) 34 ILJ 2978 (CCMA); Miyen v Blue Falcon (2020) 41 ILJ 2205 (CCMA); Tswaane v City Express Stores (2020) 41 ILJ 2231 (CCMA). In terms of the principles extracted from the aforesaid judgments and awards, what are the different steps to be identified when dealing with team misconduct?
Under what circumstances should contempt of court proceedings be utilised instead of having a writ issued?
The scenario is as follows: an employee is reinstated, not to the date of his dismissal but limiting the employee’s entitlement to remuneration to 24 months. The employee argues that he or she is entitled to interest on the back pay payable for the 24-month period in terms of s75 of the Basic Conditions of Employment Act 75 of 1997. Is the employee, according to Mashaba and Another v Telkom SA Soc Ltd (2020) 31 SALLR 147 (LAC); (2020) 41 ILJ 2437 (LAC), entitled to be paid interest on the back pay from the date of the judgment or, alternatively, entitled to also be paid interest in respect of the periods before the judgment?
A reinstatement order does not in itself reinstate an employee. How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC), determine the consequences of such order and how is such reinstatement order enforced?
What is the distinction between s50(2)(a) compensation and s50(2)(b) damages of the EEA and compensation when an automatically unfair dismissal, in terms of s187(1)(f) of the LRA, occurs?
What are the remedies available to a successful applicant in an automatically unfair dismissal or unfair discrimination dispute?
What are the remedies available to a successful applicant in an unfair labour practice dispute and how is compensation calculated in this regard?
What are the principles governing compensation when a dismissal is only procedurally unfair?
On what basis did the labour appeal court recently, in SA Teachers Union obo Kruger v Gauteng Department of Education and Others (2021) 32 SALLR 12 (LAC); (2021) 42 ILJ 827 (LAC), determine that the remedies of compensation and reinstatement cannot be granted simultaneously?
What are the principles governing substantive fairness of a dismissal and do such principles cater for a competent verdict (a finding of guilty on a different charge than a charge faced at the disciplinary enquiry)?
In Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) 2013 (6) SA 224 (SCA); (2013) 34 ILJ 2795 (SCA); [2013] 11 BLLR 1074 (SCA), it was made clear that an arbitration award would be set aside on review if the defect in the proceedings fell within one of the grounds in s145(2)(a) of the Labour Relations Act 66 of 1995, as amended (‘the LRA’). What constitutes such gross irregularity in terms of s145(2)(a)(iii)?
The labour appeal court recently ruled that an employer cannot rely at arbitration on a reason for dismissal different from the reason for dismissal utilised internally. What are the considerations to be taken into account in coming to such a conclusion and what are the consequences of this judgment?
Both in terms of the rules of the CCMA and the rules of the various bargaining councils, a referral form must be signed by the referring party (Form 7.11 and Form 7.13). The obvious purpose of such rules is to avoid the possibility of an unauthorised referral for conciliation or arbitration. When such referral form is not signed by a referring party, but, for instance, by such referring party’s attorney, what are the consequences of such non-compliance at the stage when the defective referral form is filed on the CCMA or the relevant bargaining council? To what extent does such referring party’s mere participation in conciliation proceedings or arbitration proceedings render the requirement of such referring party’s signature redundant at such stage?
What are the three scenarios identified in Hillside Aluminium v Mathuse (2016) 27 SALLR 29 (LC) covering the utilisation of a record/transcript of an internal disciplinary enquiry to be utilised at the CCMA or bargaining council and recently followed by the constitutional court in AMCU v Ngululu Bulk Carriers (in liquidation) (2020) 31 SALLR 111 (CC); (2020) 41 ILJ 1837 (CC)?
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))?
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?
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)?
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
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
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?
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?
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)?
What is the difference between contractual, statutory and collective agreement rights and obligations?
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?
Previous articles focussed on the principle that the assessment criteria for appointment in a restructured position are not equivalent to selection criteria envisaged by s189 and s189A of the LRA [e.g. Article 16/2022].
What are the principles extracted from Telkom SA Soc Ltd v Van Staden (2021) 32 SALLR 8 (LAC); (2021) 42 ILJ 869 (LAC), SA Breweries (Pty) Ltd v Louw (2017) 28 SALLR 71 (LAC) and Pratten v Afrisun KZN (Pty) Ltd (2020) 31 SALLR 159 (LC) that govern such process?
What was the scoring approach adopted by the employer, when it utilised psychometric testing, in Pratten v Afrisun KZN (Pty) Ltd (2020) 31 SALLR 159 (LC)?
In what sequence should technical and behavioural competencies be assessed?
In Pratten v Afrisun KZN (Pty) Ltd (2020) 31 SALLR 159 (LC), the applicant’s case was as follows: ‘It is fundamentally unfair for an employer, such as the respondent, to use psychometric tests as an elimination tool in the context of a retrenchment exercise where a number of employees are vying or competing for appointment for a limited number of posts’.
What are some of the principles established or confirmed by the labour court in rejecting the applicant’s case?
In Pratten v Afrisun KN (Pty) Ltd (2020) 31 SALLR 159 (LC), the employer, following consultations, decided to day away with a number of existing positions within its organisational structure and to introduce a number of new positions. Pursuant to the new positions being filled, some employees found themselves likely to be without a job, and thus at risk of being retrenched, absent other alternatives
Does sexual harassment fall within the protection provided to an employer in terms of the Compensation for Occupational and Diseases Act 130 of 1993 (‘COIDA’)?
Psychometric testing is now used by over 80% of the Fortune 500 companies in the USA for selection. Psychometric testing is now used by over 75% of the Times Top 100 companies in the UK for selection.
In Pratten v Afrisun KZN (Pty) Ltd, the labour court recently held the viewpoint that the employer is entitled to use psychometric tests in order to determine behavioural competencies attached to jobs.
On what evidence did the labour court in the Pratten matter adopt the aforesaid approach?
What is the meaning of the concepts of standardisation, reliability and validity applicable to psychometric testing?
What are the stages identified when a restructuring exercise has been undertaken in the scenario where employees compete for new positions in such restructured organisation?
What are the different phases to be adopted in formulating a strategic organisational redesign model?
On what basis will an employer be vicariously liable for the wrongs committed by an employee?
What is the content of the common law duty of the employer to take reasonable care of its employees?
In assessing damages for loss of earnings or support suffered by an ex-employee, with reference to a delictual as opposed to a labour law claim, it is usual for a deduction to be made for contingencies as well as general contingencies for which no explicit allowance has been made in the actuarial calculations. What are contingencies and what is the approach to be adopted in respect of general contingencies?
Is there a difference between an organ of state, such as a municipality, offering employment to settle a claim and an employer in an unfair dismissal dispute offering such a settlement?
Under which circumstances can an organ of state, such as a municipality, offer employment to an aggrieved employee to settle a delictual claim?
What factors are to be taken into account to determine whether or not an offer of alternative employment is lawful, as opposed to fair?
Does sexual harassment fall within the protection provided to an employer in terms of the Compensation for Occupational and Diseases Act 130 of 1993 (‘COIDA’)?
The scenario is as follows: after an employee’s employer made his/her employment intolerable compelling him/her to resign, the employee made the decision not to pursue the conventional remedy of claiming an unfair constructive dismissal in terms of the LRA (s186(1)(e) read with s191 of the LRA). The employee also elected not to pursue a claim of unfair discrimination in terms of s6(3) of the Employment Equity Act 55 of 1998, in terms of which he/she could have claimed both compensation and damages.
In Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), the high court applied delictual principles within an employment environment. What are the requirements to establish a delict in this regard?
Liability of an employer in terms of Compensation for Occupational Injuries and Diseases Act 130 of 1993 (‘COIDA’)?
How can an SALLR delegate obtain all the required continuing professional development (‘CPD’) points for a year and/or for a 3-year rolling cycle?
To what extent is the practice manual of the labour court binding on all parties and the labour court?
The institution of review proceedings does not suspend the operation of an arbitration award unless security is furnished to the satisfaction of the court in terms of s145(8) of the LRA. On what basis did the labour appeal court recently resolve the conflict between various labour court judgments interpreting the stay of enforcement of arbitration awards pending review proceedings?
What are the requirements to be met for s158(1)(c) of the LRA to be applicable (dealing with the jurisdiction of the labour court) to make an arbitration award or settlement agreement an order of court?
In terms of s142A(2) of the LRA, the CCMA has the power to make a settlement agreement an arbitration award for the purpose of enforcement thereof, in terms of s143(1) of the LRA. On the other hand, in terms of s158(1)(c) of the LRA, the labour court may make an arbitration award or any settlement agreement an order of court. What are some of the differences between the approaches adopted in the aforesaid statutory provisions, recently identified by the labour court in National Union of Metalworkers of SA obo Kubane and Others v Kewberg Cables and Braids (Pty) Ltd (2019) 30 SALLR 218 (LC)?
The parol evidence rule prevents a party from contradicting, adding to or modifying an agreement by reference to extrinsic evidence and, in that way, redefining the terms of such contract. To what extent has this rule survived our new constitutional dispensation?
What are the consequences of a provision in an agreement recording that the agreement itself contains the entire agreement and that the parties are not bound by any terms, conditions or provisions not contained in the agreement itself?
In respect of an order of reinstatement, what is the nature of the claim calculated from the day of the order granting reinstatement to the end of the judicial process challenging such order?
In respect of an order of reinstatement, what is the nature of the claim from the date of dismissal until the date of the arbitration award or labour court judgment ordering reinstatement?
In respect of an order of reinstatement, what is the nature of the claim from the date of dismissal until the date of the arbitration award or labour court judgment ordering reinstatement?
The current position with regard to hearsay evidence is that such evidence may generally be admissible, but the weight afforded to that evidence should be considered in the light of the nature of the evidence. In other words, due to the evidence being hearsay, the weight given to such evidence will be affected. Ultimately, its reliability will, to a large extent, determine the weight that will be given to the evidence. However, under what circumstances will the transcribed record of an internal disciplinary hearing constitute hearsay of a special type, thus affording greater intrinsic weight than simple hearsay?
It is settled law that arbitration proceedings before the CCMA or bargaining councils are conducted de novo. However, is the record of a disciplinary internal proceeding necessary for the fair determination of such dispute before the CCMA or the relevant bargaining council?
What are the principles governing condonation applications, recently applied by the labour court in Department of Home Affairs v General Public Service Sectoral Bargaining Council and Others (2019) 30 SALLR 172 (LC)?
What are the principles governing condonation applications, recently applied by the labour court in Department of Home Affairs v General Public Service Sectoral Bargaining Council and Others (2019) 30 SALLR 172 (LC)?
In Thaver v Pick ‘n Pay Retailers (Pty) Ltd (2020) 41 ILJ 2655 (CCMA), the employee’s attorney signed the referral form to arbitration (LRA Form 7.13) before the issue of legal representation had been canvassed (neither had the parties agreed to legal representation nor had an application for legal representation been determined by the CCMA at such stage). Does the CCMA have the requisite jurisdiction to arbitrate an alleged unfair dismissal dispute in such circumstances?
What are the differences between terms expressly stated, implied terms and tacit terms?
Does an exchange of WhatsApp messages constitute a settlement agreement?
What are the requirements to be met for s200B of the LRA to be applicable?
When applying s198 of the LRA, what is the content of the so-called ‘second fiction’ recently identified by the labour court in Chep SA (Pty) Ltd v Shardlow NO and Others (2019) 30 SALLR 169 (LC)?
The facts of Chep SA (Pty) Ltd v Shardlow NO and Others (2019) 30 SALLR 169 (LC) are briefly as follows: approximately 201 workers were employed by C-Force to repair wooden pallets for the benefit of Chep. The pallets were then returned or supplied in their refurbished condition to clients of Chep. With reference to s189(2) of the LRA, what is the content of the so-called ‘first fiction’?
In the scenario where a union embarks on a strike and thereafter suspends the strike or holds it in abeyance, is an employer obliged to lift its lockout and accept the employees’ tender of service?
In terms of s64(1)(c) of the LRA, at least 48 hours’ notice of the commencement of the lockout has to be given, in writing, to the trade union that is a party to the dispute or, if there is no such trade union, the employees, unless the dispute relates to a collective agreement to be concluded in a council, in which case notice must be given to that council. What is the latest viewpoint of the labour court as to the requirements of a lockout notice, formulated in the National Association of SA Workers obo Members v Kings Hire CC (2019) 30 SALLR 55 (LC)?
Is it a requirement that a strike must actually start before a lockout can be lawfully implemented?
It is settled law that one of the requirements of a lockout is that it is to be preceded by a demand from the employer in respect of a matter of mutual interest. Does this equate to a lockout notice?
What are the requirements to be met for an urgent application to be granted in the labour court?
To what extent is a nexus between a primary and secondary employer required for the secondary strike to be lawful?
What is the content of the reasonableness requirement to be complied with for a secondary strike to be lawful?
An expert giving evidence before a court is not a hired gun. What are some of the principles governing an expert witness, as recently identified by the labour court in Anglo Gold Ashanti Ltd and Others v Association of Mineworkers and Construction Union and Others (2019) 30 SALLR 216 (LC)?
When a secondary employer seeks an interdict prohibiting a secondary strike, what is the nature of the onus on the secondary employer?
It is legitimate for a union to place additional pressure on the primary employer to meet its demands by calling out its members employed by another employer, subject to the procedural requirements introduced by s66(2)(a) and (b) and the reasonable requirements introduced by s66(2)(c) of the LRA. How did the labour court recently, in Anglo Gold Ashanti Ltd and Others v Association of Mineworkers and Construction Union and Others (2019) 30 SALLR 216 (LC), interpret these requirements:
What is the content of the test ‘substance over form’ when determining the true nature of a dispute?
How did the labour court recently, in Mahle Behr SA (Pty) Ltd v National Union of Metalworkers of SA and Others; Foskor (Pty) Ltd v National Union of Metalworkers of SA and Others (2019) 30 SALLR 173 (LC), deal with the pre-strike ballot requirement?
How did the labour appeal court recently, in Solidarity obo members employed in the motor industry v Automobile Manufacturers Employers’ Organisation and Others (2019) 30 SALLR 41 (LAC), deal with issues surrounding the enforceability of agency shop agreements?
Is an incorrect interpretation of the law a material error of law resulting in both an incorrect and unreasonable award?
How did the labour court recently, in Civil and Power Generation Products (Pty) Ltd v CCMA and Others (2019) 30 SALLR 170 (LC), deal with the issue as to whether or not the requirement of reasonableness (when reviewing an arbitration award) has been met?
How did the labour court recently, in Jacobson v Vitalab (2019) 30 SALLR 175 (LC), interpret s187(1)(c) of the LRA dealing with the refusal to accept a demand?
With reference to Jacobson v Vitalab (2019) 30 SALLR 175 (LC), what is the test to be met to succeed in raising an exception:
What is the non-exhaustive list of factors to be taken into account to determine whether or not an employee has a reasonable expectation of renewal?
Once an employee discharged the onus of proving a dismissal, what is the content of the onus on the employer?
Does merely being employed on the basis of a series of fixed-term contracts, without more, create a reasonable expectation in terms of s186(1)(b) of the LRA?
To what extent is an arbitrator entitled to alter the duty to begin and the discharging of the onus?
What determines the test to be used on review – correctness standard or reasonable decision-maker?
What are the consequences of an employer electing to consult with non-union members?
Is individual or parallel consultation required when embarking on a s189 exercise?
On what basis will an employer be entitled to dismiss an employee who has been imprisoned?
Is it always required to lead evidence about the destruction of the trust relationship in order to avoid a reinstatement order?
On what basis did the labour court recently hold, in De Kock v CCMA and Others (2019) 30 SALLR 177 (LC), that insubordination destroys the relationship of trust, mutual confidence and respect, and generally makes the continued employment relationship intolerable?
To what extent is a commissioner permitted to rely on the employer’s decision in determining whether or not a dismissal is fair?
In general terms, the determination of the fairness of a dismissal requires an arbitrator to form a value judgment, having regard to the interests of both the employer and the employee, and to achieve a balanced and equitable assessment of the fairness of the sanction. What are the types of factors to be taken into account in determining whether the employer had thus acted fairly in deciding to dismiss an employee?
On what basis did the labour court recently hold, in De Kock v CCMA and Others (2019) 30 SALLR 177 (LC), that, when an unfair dismissal dispute is pursued, it does not mean, by implication, that a challenge of an earlier final written warning may be pursued as part of such unfair dismissal dispute?
What is the content of the two-stage enquiry to be adopted when considering a review application of an arbitration award?
In order to resist an order or award of reinstatement, is it always a requirement to lead evidence of the irretrievable breakdown of the trust relationship?
An employer charges an employee in a charge sheet with having committed misconduct A. On what basis has the labour appeal court recently indicated that an appropriate disciplinary sanction may be imposed in respect of misconduct B, not mentioned in the charge sheet?
The traditional approach adopted in determining whether or not an employee is guilty of the alleged offence is to determine, on a balance of probabilities, whether or not he or she is guilty of the offence he or she was charged with (including all the elements of such offence). On what basis did the labour appeal court recently, in SA Police Service v Magwaxaza and Others (2019) 30 SALLR 42 (LAC), reject such approach?
In terms of a health and safety collective agreement, an employee was appointed as a fulltime health and safety shop steward (HSS). To what extent does this collective agreement between the employer and trade union constitute a contract for the benefit of a third party (stipulatio alteri), namely, the employee?
Under what circumstances is an employee obliged to disclose facts during the recruitment process surrounding the termination of his or her employment with his or her previous employer and when will the failure to do so constitute serious misconduct?
In taking an arbitration on review, is an applicant entitled to adopt the approach that the grounds of review extend to both an incorrect interpretation of law by the arbitrator as well as the unreasonableness of the arbitrator’s finding?
The failure by an arbitrator to apply his or her mind to the material issues at hand will usually be an irregularity. However, before such irregularity will result in the setting aside of an arbitration award, it must reveal a misconception of the true enquiry or result in an unreasonable outcome. What are the requirements to be met for an arbitration award to be set aside under the above circumstances?
The general principle is that a statute does not operate retrospectively unless it clearly indicates that it has such effect (Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National Transport Commission and Others; Transnet Ltd (Autonet Division) Division v Chairman, National Transport Commission and Others 1999 (4) SA 1 (SCA). What are some of the factors to be considered when determining whether legislation amending procedures is applicable to pending applications or actions, with reference to the Basic Conditions of Employment Amendment Act, 7 of 2018, effective from 1 January 2019, in respect of compliance orders?
The scenario is as follows: an employer and employee conclude a retention bonus agreement. The employer is in non-compliance with certain material aspects of such agreement. The employee has not accepted such breaches. Until when is the employer entitled to retract its position?
Employment contracts are, by their nature, reciprocal contracts. What does this principle of reciprocity entail?
In the scenario where an employee alleges that, as a result of a misrepresentation by his or her employer, a termination agreement was concluded, why, according to the labour appeal court in Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC), would it be the wrong approach to seek a declarator that the agreement is void and what should be the correct approach?
Although claims under the LRA and the BCEA are distinct and based upon different causes of action, can they be heard in a single hearing before the labour court?
It is settled law that an arbitrator of the CCMA or a bargaining council may peal away the husk of allegations and deal with the real dispute. On what basis did the labour appeal court, in Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC), recently find that the same approach is not applicable when a contractual dispute is referred to the labour court?
An employee is expected to speak up if he/she objects to an employer’s action. On what basis did the labour appeal court recently, in Legal Aid South Africa v Theunissen (2019) 30 SALLR 34 (LAC), hold that the failure to speak up against altering a retirement age will result in the employee having acquiesced to the revised retirement age?
The labour appeal court recently confirmed that so-called flexibility provisions entitle an employer to change the retirement age of employees. How did the labour appeal court deal with such provisions contained in an employment manual and an employee’s individual letter of employment?
On what basis did the supreme court of appeal recently, in Theron v Premier of the Western Cape Province and Others (2019) 30 SALLR 192 (SCA), adopt the approach that, when interpreting contracts, statutory provisions, etc, a unitary exercise should be undertaken considering the text, context and purpose to achieve a sensible meaning?
In Wereley v Productivity South Africa and Naidoo NO (2020) 31 SALLR 103 (LC), the employee sought an order for specific performance consequent on a decision that her dismissal had been void ab initio on the basis of the fundamental breach committed by her employer by dispensing with an enquiry before dismissing her. On what basis did the labour court hold that reinstatement, from the date of dismissal, was the appropriate remedy for the employee (Wereley)?
An employee is not obliged to challenge the procedural unfairness of his or her dismissal in the CCMA. The employee may also challenge the non-compliance of such procedure with the contractual obligations of an employer. Such challenge will occur in the labour court and will be for specific performance or the cancellation of the agreement and a claim for damages. On what basis did the labour court recently, in Wereley v Productivity South Africa and Naidoo NO (2020) 31 SALLR 103 (LC), hold that it is a conceptual mistake to collapse these two causes of action simply because they both concern procedural non-compliance?
How should incompatibility be dealt with and what is the approach adopted recently by the labour court in Wereley v Productivity South Africa and Naidoo NO (2020) 31 SALLR 103 (LC)?
If an employer deems it fit to include elaborate procedures in a contract of employment, which go beyond what is required in terms of the LRA, is the employer entitled to simply revert to the default position of the LRA?
What are the five differences between a claim in terms of the LRA and the BCEA, recently identified by the labour appeal court, in Pilanesberg Platinum Mines (Pty) Ltd v Ramabulana (2019) 30 SALLR 165 (LAC)?
A claim in the labour court is for the payment of damages arising from a breach of contract, whereas a claim before the CCMA or the bargaining council is for reinstatement, alternatively, compensation. How did the labour appeal court recently, in Archer v Public School – Pinelands High School and Others, deal with these two different claims?
A claimant has a potential claim for enforcement of an LRA right (enforceable only in a labour forum) as well as a potential claim for enforcement of a right falling outside the LRA (enforceable either in the high court or labour court). These claims can be pursued simultaneously or sequentially. What is the basis of such approach, recently confirmed by the labour appeal court in Archer v Public School – Pinelands High School and Others (2019) 30 SALLR 28 (LAC)?
What are the consequences of the fact that, in the LRA, there is no reference to a right not to be unlawfully dismissed nor are there processes or procedures for the enforcement of such a right?
Under which circumstances is conciliation by the CCMA or the relevant bargaining council an indispensable precondition to the labour court’s jurisdiction over unfair dismissal disputes?
There is a misconception that the labour court has jurisdiction to entertain any disputes concerning work-related grievances, or to deal with any allegations of unfair conduct by an employer. How did Van Niekerk J deal with this issue in Malinga and Others v KwaZulu-Natal Provincial Department of Education and Others (2020) 31 SALLR 101 (LC)?
In the scenario where the parties agreed that the transcript or record of an internal disciplinary enquiry correctly purports what it wishes to portray and the relevant arbitrator is contemplating utilising certain portions of such transcript, what guidelines must be complied with in order to ensure compliance with the audi alteram partem rule?
The article sets out the approach adopted to the above question by the labour court in Hillside Aluminium (Pty) Ltd v Moses Mathuse and Others.
What are the consequences and what approach should be adopted when there exists a record or transcript of an internal disciplinary enquiry (or similar process) and, subsequently, at the CCMA or the relevant bargaining council, such record or transcript is considered under the following circumstances:
(a) where there is no agreement between the parties on the authenticity of such documents, or, alternatively, the authenticity is disputed?;
(b) where the parties reached an agreement as to what such documents purport to portray?;
(c) where the parties reached an agreement that the documents should be regarded as evidence?
The article provides guidelines as to how the arbitrator should deal with such record or transcript in each of the above scenarios with reference to the approach recently adopted by the labour court in Hillside Aluminium (Pty) Ltd v Moses Mathuse and Others.[1]
To what extent is an employer required to lead evidence that the trust relationship has been broken down in order to justify a finding that the sanction of dismissal is appropriate? What are the true factors to be taken into account when determining whether or not dismissal is the appropriate sanction?
The article contains the original approach to such issue by the supreme court of appeal in Edcon Ltd v Pillemer NO and Others1 and the interpretation of such approach subsequently in the following judgments:
(a) Woolworths (Pty) Ltd v Mabija and Others;[2]
(b) Easi Access Rental (Pty) Ltd v CCMA and Others;[3] and
(c) Member of the Executive Council, Department of Health, Eastern Cape v Public Health and Social Development Sectoral Bargaining Council and Others.[4]
To what extent is it permissible to utilise the plea bargaining process in industrial relations and labour law as contained in s204 of the Criminal Procedure Act, 51 of 1997, as amended?
Should an employer conclude a plea bargain with one of the employees involved in the alleged misconduct, to what extent will the other employees with whom the employer has not concluded a similar plea bargain agreement be entitled to raise the issue of inconsistent treatment? This article provides answers to the above issues and sets out the approach adopted by the labour court in Member of the Executive Council, Department of Health, Eastern Cape v Public Health and Social Development Sectoral Bargaining Council and Others.
What is the content of the test applied by the CCMA to determine whether or not an employee, who arrives at work under the influence of cannabis, wilfully disregards his or her employer’s safety rules?
If an employee challenges the termination of his or her employment contract as an unfair dismissal before the CCMA, is such employee subsequently entitled to claim that the said termination of his or her contract does not constitute a dismissal in law when challenging the conduct of the employer as constituting unlawful action?
Employers and employees employed in the public sector are subject to administrative law principles. One of these principles is, irrespective of contractual rights, that such employees are entitled to the administrative law right of audi alteram partem before dismissal. The consequence of non-compliance with the aforesaid administrative right is that the dismissal will be branded as unlawful. Are employees so employed in the private sector entitled to the aforesaid administrative law principles, thus rendering the dismissal unlawful, in the absence of any reliance on a breach of contractual rights?
Under which circumstances will an employee be entitled to commission after his or her contract came to an end, in terms of s77(3) of the BCEA?
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