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Article 50/2021

Labour Edge

Is an incorrect interpretation of the law a material error of law resulting in both an incorrect and unreasonable award?

  1. In National Union of Metalworkers of SA v Assign Services and Others (2017) 38 ILJ 1978 (LAC); [2017] 10 BLLR 1008 (LAC); (2017) 28 SALLR 15 (LAC), at paragraph [32], the labour appeal court said:

‘An incorrect interpretation of the law by a commissioner is, logically, a material error of law which will result in both an incorrect and unreasonable award. Such an award can either be attacked on the basis of its correctness or for being unreasonable’ (the judgment of the labour appeal court was upheld by the constitutional court in Assign Services (Pty) Ltd v National Union of Metalworkers of SA and Others (Casual Workers Advice Office as Amicus Curiae) (2018) 39 ILJ 1911 (CC). See also with regard to this principle the judgments in Democratic Nursing Organisation of SA on behalf of Du Toit and Another v Western Cape Department of Health and Others (2016) 37 ILJ 1819 (LAC), at paragraphs [21]–[22]; MacDonald’s Transport Upington (Pty) Ltd v Association of Mineworkers and Construction Union and Others (2016) 37 ILJ 2593 (LAC); [2017] 2 BLLR 105 (LAC), at paragraph [30]).

  1. As succinctly summarised in Auto Industrial Group (Pty) Ltd and Others v Commission for Conciliation, Mediation and Arbitration and Others (2019) 40 ILJ 550 (LC), at paragraph [31]:

‘There is a line of judgments by the LAC that establish that an arbitration award may be set aside as constituting a gross irregularity when a commissioner commits an error of law, provided the error of law was material, in the sense that it materially affected the commissioner’s ultimate decision. Put in the negative, an error of law is not material if the commissioner would have reached the same decision on the facts, despite the error of law.’

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?

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