Article 25/2021

Labour Edge

In terms of a health and safety collective agreement, an employee was appointed as a fulltime health and safety shop steward (HSS).  To what extent does this collective agreement between the employer and trade union constitute a contract for the benefit of a third party (stipulatio alteri), namely, the employee?

The labour appeal court recently, in Maripane v Glencore Operations SA (Pty) Ltd (Lion Ferrochrome) (2019) 30 SALLR 163 (LAC), adopted the following approach to this issue:

  1. the test whether a contract is made for the benefit of a third party (a stipulatio alteri) is whether, by adopting the contract, the third party can become a party to it (see GB Bradfield Christie’s Law of Contract in South Africa 7 ed. (LexisNexis 2016). at 266 and the cases referred to there, including Crookes v Watson 1956 (1) SA 277 (A) at 291C; and Joel Melamed and Horwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A). at 172A–F); and
  2. because of its terms and the way in which it was structured, the agreement was capable of being construed as a contract made for the benefit of a third party(ies), such as the health and safety representatives envisaged in it. By standing for and being elected to the position of HSS, they adopted the agreement and a vinculum iuris was created between the elected HSS, NUM and the employer (i.e. the respondent). As a result, they (individually and respectively) came into the agreement as a party with one of the parties to the agreement, were bound by it and could enforce its terms insofar as those terms related to them (see: inter alia, McCullough v Fernwood Estates Ltd 1920 A.D. 204 at 206, cited in Christie’s (above). at 310). These would include the terms relating to their qualifications, their appointment, their term of office, their conditions of employment, including their reporting obligations, their remuneration, their hours of work, their facilities, the termination of their appointment and the manner in which they had to perform their functions, the obligations of the respondent, including its obligation to inform the health and safety representatives of inspections, accidents, etc, the obligations of secrecy, the dispute procedures regarding disclosures of information, and the training of health and safety representatives;

Is it always required to lead evidence about the destruction of the trust relationship in order to avoid a reinstatement order?

On what basis did the labour court recently hold, in De Kock v CCMA and Others (2019) 30 SALLR 177 (LC), that insubordination destroys the relationship of trust, mutual confidence and respect, and generally makes the continued employment relationship intolerable?

To what extent is a commissioner permitted to rely on the employer’s decision in determining whether or not a dismissal is fair?