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Article 14/2024

LabourEdge

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.  Since then, in the labour law environment, such approach has consistently been followed in interpreting, inter alia, pre-trial minutes, provisions of the BCEA, strike ballot guidelines issued by the CCMA, provisions of the LRA and the Gatherings Act, protest action, separation agreements, benefits, advisory arbitration awards, secondary strikes, restraint of trade clauses, etc.  Furthermore, this approach has also been followed by the constitutional court in numerous judgments, e g NUMSA v Chamber of Mines (2017) 38 ILJ 831 (CC), Democratic Alliance v Speaker, National Assembly 2016 (3) SA 487 (CC), Bertie van Zyl v Minister of Safety and Security 2010 (2) SA 181 (CC) and Cool Ideas 1186 CC v Hubbard 2014 (4) SA 474 (CC).

What does this test entail?

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The test entails the following essential considerations:

  • words must be given their ordinary grammatical meaning, unless it results in absurdity
  • provisions must be interpreted purposefully
  • provisions must be properly contextualised
  • provisions must be interpreted to preserve their constitutional validity (if applicable)
  • with reference to the above, it is apparent that the starting point is the language of the provision, read with regard to its context (i e reading the document as a whole, the purpose of the provision, the background to the preparation and production of the document, etc)
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?