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Article 28/2021

Labour Edge

In order to resist an order or award of reinstatement, is it always a requirement to lead evidence of the irretrievable breakdown of the trust relationship?

The labour appeal court recently, in Drs Dietrich, Voight & Mia t/a Pathcare v Bennett NO and Others (2019) 30 SALLR 160 (LAC), adopted the following approach: in a situation where no evidence was adduced during the trial or arbitration, as in this case, on the effect of an order or an award of reinstatement, the court or the commissioner should consider all the factors and circumstances relevant to that form of relief, including the gravity of the offence committed by the employee. Equally trite is that that dismissal is a penalty of last resort because of the harsh consequences it may have on an employee who is dismissed (Transport and Allied Workers Union of South Africa obo Ngedle and Others v Unitrans Fuel and Chemical (Pty) Ltd ([2016] 11 BCLR 1440 (CC); (2016) 37 ILJ 2485 (CC); [2016] 11 BLLR 1059 (CC), at paragraph [173]).

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?