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?

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)?