Article 9/2025

The constitutional court, in Sidumo and Congress of SA Trade Unions v Rustenburg Platinum Mines Ltd, the CCMA and Moropa NO (2008) 19 SALLR 35 (CC), signalled the end of the reasonable employer test to be utilised when an arbitration award is taken on review. How does the pre-Sidumo scenario differ from the post-Sidumo
scenario that is currently applicable?

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PRE-SIDUMO SCENARIO

In this scenario, the following principles applied:

  • when the employer dismissed an employee, it utilised various ‘tools’, including statutory rights and obligations, as well as contractual rights and obligations
  • when the CCMA arbitrated the dismissal dispute, it utilised the reasonable employer test, entailing that the employer’s view of fairness prevailed and that the CCMA arbitrator only interfered with such viewpoint if the employer did not behave like a reasonable employer
  • the enquiry at the CCMA was not an enquiry de novo

POST-SIDUMO SCENARIO
In this scenario, the following principles are applicable:

  • when the CCMA arbitrates a dismissal dispute, the arbitrator sits as a reasonable decision-maker
  • the arbitrator performs an administrative function and is obliged to properly exercise its administrative powers
  • the commissioner’s view of fairness prevails and no longer the employer’s view of fairness
  • the reasonable decision-maker test is applied within an enquiry de novo
  • when the LC reviews the decision of the commissioner, the following considerations are applicable:
    • the grounds of review, as set out in s145(2) of the LRA, are still applicable, namely:
      • whether or not the commissioner committed misconduct in relation to his or her duties as an arbitrator;
      • whether or not the commissioner committed a gross irregularity;
      • whether or not the commissioner exceeded his/her powers;
      • whether or not the award has been improperly obtained
  • apart from the above, the grounds of review, as set out in s158(1)(g) of the LRA, are still applicable, namely, subject to s145, the LC may review the performance of any function provided in the LRA, on any ground permissible in law
  • thus, the grounds of review set out in the LRA have been maintained and are subsumed by the constitutional requirement of reasonableness
June 12, 2025

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

June 5, 2025

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

May 29, 2025

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?