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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.

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?