Article 64/2021

Labour Edge

In terms of s64(1)(c) of the LRA, at least 48 hours’ notice of the commencement of the lockout has to be given, in writing, to the trade union that is a party to the dispute or, if there is no such trade union, the employees, unless the dispute relates to a collective agreement to be concluded in a council, in which case notice must be given to that council.  What is the latest viewpoint of the labour court as to the requirements of a lockout notice, formulated in the National Association of SA Workers obo Members v Kings Hire CC (2019) 30 SALLR 55 (LC)?

In Kings Hire, the labour court adopted the following approach to such issue:

  1. as to the requirements of the notice itself, the only express requirement in s64(1)(c) itself is 48 hours’ prior notice to the trade and/or the employees concerned;
  2. in SA Transport and Allied Workers Union and Others v Moloto NO and Another (2012) 33 ILJ 2549 (CC), at paragraph [86], it was held that the only certainty required to be reflected in a strike notice is when the strike will start; and
  3. in the labour court’s view, this equally applied to a lockout notice. There is, however, the proviso that if there is a trade union, the lock out notice only has to be given to the trade union and not to the employees.

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?