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Article 11/2025

The labour appeal court, in Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA (2013) 24 SALLR 41 (LAC), firstly, identified the questions to be avoided when a matter is taken on review and, secondly, the questions to be asked during a review process.

What are these respective questions to be asked in avoiding a piecemeal approach to the factors to determine unreasonableness?

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QUESTIONS TO BE AVOIDED

  • Failure to mention a material fact in the award?
  • Does the award fail to deal with an issue that has a material bearing on the dispute?
  • Failure to evaluate or consider facts presented at the arbitration?

QUESTIONS TO BE ASKED

  • Were the parties given a full opportunity to have their say with regard to the dispute?
  • Did the arbitrator correctly identify the dispute required to be arbitrated?
  • Did the arbitrator understand the nature of the dispute required to be arbitrated?
  • Did the arbitrator deal with the substantive merits of the dispute?
  • Is the decision one that another arbitrator could reasonably arrive at, based on the evidence presented?
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?