Skip to main content

Article 14/2021

Labour Edge

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?

  1. Having invoked the LRA as the source of the claim to declare the agreement void, what right in terms of the LRA could be invoked to sustain that claim? The founding affidavit did not reveal an answer. If the appellant had meant to complain that the retrenchment was unfair, relying on the provisions of s189 not having been observed, it would first have had to refer a dispute to the CCMA for conciliation. However, that cause of action was not invoked. The case was not about an unfair retrenchment.
  2. Had the appellant meant to lodge a claim in contract in respect of which the labour court, in terms of s77(3) of the Basic Conditions of Employment 75 of 1997 (‘the BCEA’), could exercise civil jurisdiction? No express invocation of that power was made either.
  3. The labour court, without expressly saying so, had treated the case as a contractual dispute. By so doing, in the labour appeal court’s view, it had been generous, for otherwise the application should have been dismissed out of hand for incoherence.
  4. The incoherence was patent. Several questions arose. In the absence of expressly alleging that the labour court had to exercise civil jurisdiction pursuant to s77(3), could the labour court properly do so? Is it appropriate for the labour court to peel away the husk of the allegations and deal with the real dispute, as is required of commissioners of the CCMA? Can such an approach be competent where, unlike in the CCMA, the parties before the labour court are required to plead? More especially, if s158(1)(a)(iv) was expressly alleged as the competence of the labour court which was invoked, was it appropriate or even competent to have treated this matter as a civil claim?
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?