Article 68/2021

Labour Edge

When applying s198 of the LRA, what is the content of the so-called ‘second fiction’ recently identified by the labour court in Chep SA (Pty) Ltd v Shardlow NO and Others (2019) 30 SALLR 169 (LC)?


Chep SA adopted the following approach: s198A(3)(b) is said to be the ‘gateway’ to s198A(5), which provides for ‘deemed employees’ to be treated no less favourably than the deemed employer’s directly engaged or permanent employees. In order to access both their s198A(3)(b) right to be deemed permanent, and their 198A(5) right to be treated no less favourably than other employees, a worker must be working for a TES. This fiction was referred to in this judgment as the second fiction created by s198.

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)?