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Article 41/2024

LabourEdge

The constitutional court, in National Union of Metalworkers of SA v Lufil Packaging (2020) 31 SALLR 138 (CC); (2020) 41 ILJ 1846 (CC), found that the membership of a union by an employee, who was employed in a sector which fell outside of the scope of the union’s constitution, was invalid and void ab initio.

With reference to the aforesaid legal position, how did the labour appeal court subsequently, in NUMSA v Afgri Animal Feeds (2022) 33 SALLR 270 (LAC); (2022) 43 ILJ 1998 (LAC), deal with the following issues:

  • what is the distinction between collective bargaining rights and individual rights, like the right to representation?
  • where an employee does not fall within the sector covered by the union’s constitution, is the union still permitted to act as a party to proceedings on behalf of the employee or in the interests of such employee?

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The labour appeal court, in the Afgri Animal Feeds judgment, approached the aforesaid questions as follows:

  • the Lufil Packaging judgment (CC) is only applicable to the issue of collective bargaining rights (e g organisational rights disputes)
  • the approach adopted in such judgment by the constitutional court is not applicable to individual rights, such as representation in dismissal and unfair labour practice disputes
  • in terms of s191(1)(a) of the LRA, an employee (and not a trade union) has the right to refer disputes about the fairness of dismissals or unfair labour practices to the CCMA or the relevant bargaining council
  • in terms of s191(5)(b) of the LRA, an employee (and not a trade union) may refer disputes to the labour court regarding automatically unfair dismissals, dismissals on the basis of an employer’s operational requirements, dismissals for participation in an unprotected strike and dismissals where an employee refused to join, or was refused membership, or expelled from a trade union party to a closed shop agreement
  • in terms of s200(1) of the LRA, a registered trade union/employers’ organisation may act in the following capacities in disputes where members are parties:
    • own interest (s200(1)(a))
    • on behalf of its members (s200(1)(b))
    • in the interests of its members (s200(1)(c)
  • apart from s200(1) of the LRA, in terms of s200(2) of the LRA, a registered trade union or employers’ organisation is entitled to be a party to any proceedings where any of its members is a party
  • therefore, in casu, it was held that NUMSA was entitled to represent employees employed in an industry which falls outside the scope provided for in the union’s constitution – and the union is not required to prove valid membership like in the case of collective bargaining
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?