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Article 21/2024

LabourEdge

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 – e g Aucamp v South African Revenue Services [2014] 2 BLLR 152 (LC) and Ekurhuleni Metropolitan Municipality v South African Municipality Workers Union [2015] 1 BLLR 34 (LAC).  The supreme court of appeal recently, in MEC for Economic Development, Environment and Tourism, Limpopo v Leboho (2022) 33 SALLR 281 (SCA); (2022) 43 ILJ 2695 (SCA), adopted a very different approach that, as is apparent, will in future have an important impact as to the dispute-resolution path selected by a party who alleges non-compliance with a collective agreement.  What does this approach entail?

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  • The supreme court of appeal, with reference to Health and Other Services Personnel Trade Union of SA obo Tshambi v Department of Health, KwaZulu-Natal (2016) 37 ILJ 1839 (LAC), indicated that:
    • a dispute about the interpretation of a collective agreement requires, at a minimum, a difference of opinion about a provision in the agreement
    • a dispute about the application of a collective agreement requires, at the minimum, a difference of opinion as to whether it can be invoked
    • once application is proven and there is no dispute about the interpretation, a party can enforce such an agreement in the civil courts

What are the principles governing common purpose misconduct?

What are the principles governing an employee’s duty to disclose to his/her employer information about misconduct?

In Article 31, we dealt with the distinction between desertion and abscondment.

In Article 32, we dealt with the misconduct of deeming desertion.

In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.