Test your knowledge and preparedness levels

The South African Labour Law Reports Annual Seminars

You are invited to test your knowledge and preparedness levels by answering the questions relating to the developments during the last 12 months in respect of the issues covered in this list:

s198B(3), s198B(4) and s198B(5) of the LRA: fixed-term contracts

  • Are ss 198B(3), (4) and (5) applicable to fixed-term contracts entered into before 1 January 2015?
  • To what extent does s198B ‘outlaw’ fixed-term contracts or seek to replace them with contracts of indefinite duration?

s157 of the LRA: limited jurisdiction of the labour court to entertain disputes concerning work-related grievances or allegations of unfair conduct

  • On what basis does the labour court generally lack jurisdiction, in motion proceedings, to grant relief to an employee alleging an unfair dismissal?
  • How did the labour court, in Malinga and Others v KwaZulu-Natal Provincial Department of Education and Others apply the approach adopted by the constitutional court in Steenkamp and Others v Edcon Ltd when dealing with the validity or lawfulness of a dismissal?

The obligation to disclose the circumstances surrounding termination of employment by a previous employer

  • It is accepted law that, during the application for a post process, a person may not make a material misrepresentation of fact or give false information. But, what about the scenario where the applicant for the post simply failed to disclose the facts surrounding the termination of his or her employment with his or her previous employer?
  • In the above scenario, is it a defence for the employee when his or her failure to disclose is challenged to indicate the existence of a non-disclosure agreement signed by him or her with his/her previous employer?

The content of the misconduct comprising possession of stolen goods

  • What is the content of the offence of being in possession of stolen property in terms of common law?
  • What is the content of the offence of being in possession of stolen property in terms of ss 36 and 37 of the General Law Amendment Act 62 of 1995?

The duty to bargain and organisational rights

  • What are the restrictions on the CCMA with reference to defining a bargaining unit for the purposes of collective bargaining?
  • What are the restrictions on commissioners and judges as to the duty on a party to bargain collectively, the subject matter of collective bargaining, the level at which bargaining should be conducted or the identification of any bargaining partner?
  • Does the law recognise organisational rights outside the parameters of statutory organisational rights defined in ss12 to 16 of the LRA?

Code of Good Practice: Collective Bargaining, Industrial Action and Picketing

  • How has the labour court recently applied the newly-published Code of Good Practice: Collective Bargaining, Industrial Action and Picketing (‘the Code’)?
  • What are the fundamental elements of collective bargaining recently identified by the labour court, with reference to the Code?
  • When an employer applies for an interdict in respect of an unprotected strike, is the employer obliged to identify particular individual employees allegedly guilty of misconduct?

Employer’s vicarious liability for acts of employees: deviation cases

  • Where an employee commits an intentional wrong entirely for his or her own purposes, the law has been developed to provide redress to a victim against the employer of the employee if the wrong was objectively sufficiently linked to the business or enterprise of the employer. How did the supreme court of appeal recently further develop the law regulating deviation cases where an employer created the risk of harm that provided the opportunity for the employee to commit the wrong in question?

An employer terminating employment lawfully for operational reasons

  • According to the labour appeal court, what are the types of factors to take into account to determine whether or not the termination of employment was lawful but potentially unfair?
  • The labour appeal court recently held that non-compliance with a contractual term does not per se amount to a breach of contract. What are the preconditions to be met for such non-compliance to amount to a breach of contract?
  • On what basis did the labour appeal court recently hold that the mere breach of a contract does not entitle an employee to damages?

s186(1)(b) of the LRA: reasonable expectation of renewal of a fixed-term contract

  • On what basis did the labour court recently find that the mere fact that a fixedterm contract is repeatedly renewed does not, in itself, prove a reasonable expectation of renewal?
  • What are the types of factors to be evaluated objectively to determine whether or not a reasonable expectation of renewal exists?
  • According to the latest viewpoint of the labour court, what are the consequences attached to an employee’s active participation in the recruitment process for a permanent position in the scenario where he or she was employed on a series of fixed-term contracts?

Settlement agreements in terms of s158(1)(c) and s158(1A) of the LRA

  • What approach should be adopted when interpreting a retrenchment agreement?
  • What role does the parol evidence rule play when interpreting a retrenchment agreement?
  • To what extent is the Prescription Act 68 of 1969 applicable when interpreting a retrenchment agreement?
  • With reference to s158(1)(c) read with s158(1A) of the LRA and taking into account the approach adopted by the labour appeal court in Greef v Consol Glass, what approach should be adopted when considering whether or not a retrenchment agreement should be made an order of court?
  • Under what circumstances will the exchange of WhatsApp messages constitute a binding agreement?
  • Is it required that the parties’ respective signatures must be attached to formalise an offer and acceptance?
  • What are the elements of the defence of duress when the parties conclude an agreement?

Rule 4 of the CCMA rules: who is entitled to sign a referral form?

  • In terms of rule 4 of the CCMA rules, read with rule 25 of such rules, who is entitled to sign referral forms?
  • What effect has the fact that a referral form is not correctly signed by a party or person entitled to do so have on the jurisdiction of the CCMA to entertain the dispute?

Breakdown of trust requirement: CCMA powers and functions

  • According to the latest viewpoint of the labour appeal court, under which two circumstances is an employer not obliged to lead evidence to satisfy a commissioner that the relationship of trust had been broken down?
  • What is the extent of the discretion that a commissioner has when evidence is led of a breakdown in a relationship?
  • What is the extent of the proximity required between an employee and his or her superior when considering a breakdown in the relationship?
  • Is the existence of a breakdown in the relationship to be determined at the moment when the offence was committed or the moment when an employee is found guilty of such offence?

Probationary employee: Code of Good Practice: Dismissal (item 8(1))

  • What are the consequences, according to the labour appeal court, when an employer extends an agreed-upon probationary period to continue with ongoing review and evaluation of the employee?
  • According to the latest viewpoint of the labour appeal court, what precautionary measures should arbitrators utilise when dealing with an employer’s decision as to whether or not a probationary employee has attained the required performance standards?
  • According to the latest viewpoint of the labour appeal court, what is the content of the duty on an employer if a probationary employee does not meet the required standards, to amend its job requirements to accommodate the limitations of such employee?
  • Is the purpose of a probationary period merely to assess technical skills or ability to do the job or, alternatively, can it extend to determine whether or not an employee is a suitable employee in the wider sense, taking into account factors such as demeanour, diligence, compatibility and character?

Incapacity outside the parameters of poor work performance or ill-health injury: imprisonment

  • On what basis did the labour court recently confirm the principle that there is no inflexible rule of law that incapacity which falls outside the control of the employee cannot be the cause for dismissal?

Industrial action: a demand concerning a change in work practice amounting to a substantive demand

  • What are the factors to be taken into account to determine whether or not a demand amounts to a change in work practice or a substantive demand?
  • According to the labour appeal court, what is the test to be utilised to determine whether or not strikes are prohibited in terms of a collective agreement?
  • Are employers, according to the labour appeal court, entitled to an order interdicting a strike over impermissible demands even where there are permissible demands?

Resignations

  • Is an employer entitled to conduct a disciplinary enquiry after an employee resigns immediately, in breach of his or her contractual obligation to give notice of a specific number of days of his or her intention to terminate his or her employment?
  • What is the latest viewpoint of the labour court as to whether or not an employee who resigns and, subsequent to such resignation, faces disciplinary action against him or her by his or her employer, is entitled to interdictory relief in the labour court?
  • In Mtati v KPMG Services (Pty) Ltd, the labour court held that, in circumstances where resignation takes place with immediate effect, it deprives the employer to proceed with disciplinary action against the employee. This principle was subsequently endorsed by the labour court in Chiloane v Standard Bank of SA Ltd. What is the latest viewpoint of the labour court in this regard?
  • On what basis did the labour court recently, in Coetzee v Zeitz Mocaa Foundation Trust and Others, as well as Mzotsho v Standard Bank SA Ltd, express a different viewpoint than the one held in the Mtati and Chiloane judgments?
  • On what basis did the labour court recently not follow such different viewpoint?

CCMA powers and functions: admissibility and weight attached to the transcript of an internal enquiry

  • On what basis is a commissioner entitled to admit the transcript of an internal disciplinary enquiry as hearsay evidence during arbitration proceedings?
  • What is the latest viewpoint of the labour court as to what factors are to be taken into account to determine the weight to be given to the transcript of an internal disciplinary enquiry admitted as hearsay evidence?
  • What is the difference between the weight attached to ‘simple hearsay’ and hearsay constituting a comprehensive and reliable record of a prior quasi-judicial encounter between the parties, such as a disciplinary enquiry?
  • Under which circumstances will the admission of the transcript of an internal disciplinary enquiry as hearsay evidence require an accused employee to rebut allegations contained in such evidence?

The refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer, resulting in their dismissals being branded automatically unfair: s187(1)(c) of the LRA

  • What is the test to be applied to determine whether or not an exception should succeed?
  • On what basis did the labour court recently hold that s187(1)(c) of the LRA, dealing with the refusal to accept a demand in respect of a matter of mutual interest, relates only to the collective sphere and not to an individual employee?
  • What are the preconditions identified recently by the labour court for s187(1)(c) of the LRA to be applicable?

Interpretation of employment contracts

  • What is the latest viewpoint of the supreme court of appeal as to the approach to be adopted when interpreting employment contracts?
  • What is the latest viewpoint of the labour appeal court as to the reasons why an employee’s claim is limited to the salary for a notice period, and not damages for the unexpired portion of the contract, when the employer terminates a fixed-term contract?

Material misrepresentation by the employer inducing the employee to conclude a termination agreement

  • According to the labour appeal court, what is the test to determine whether or not misrepresentation led to the conclusion of a settlement agreement?
  • How does the regime for costs in claims brought in terms of s77(3) of the BCEA differ from such regime in respect of claims brought in terms of the LRA?
  • According to the labour appeal court, what is the test to be applied to determine the true dispute between the parties, with reference to the question as to whether or not such dispute is in terms of the LRA or, alternatively, a contractual, civil dispute in terms of the BCEA?
  • According to the latest viewpoint of the labour appeal court, is the labour court competent to treat a matter as a civil claim in terms of s77(3) of the BCEA in the absence of express allegations to this effect?

Misconduct: insubordination

  • In order to justify dismissal, what must the content of insubordination be?
  • According to the labour appeal court, what types of factors are to be taken into account to determine whether or not the refusal to obey an instruction amounts to insubordination?
  • According to the latest viewpoint of the labour appeal court, what types of factors are to be taken into account to determine whether or not an instruction is reasonable?
  • According to the labour appeal court, what is the test to be adopted in the employment environment as to whether a contract is made for the benefit of a third party (a stipulatio alteri)?
  • What is the test to determine whether or not an employer repudiates a contract and, if such is indeed the position, what are the contractual remedies available to an employee finding himself or herself in such a position?

s197 of the LRA: employees not required to tender services to the new employer and employment continues uninterrupted

  • What is the latest interpretation of the labour appeal court as to the defence of exceptio non adimpleti contractus covering the scenario where there is no obligation to perform because the other party has not performed its obligations?
  • What is the viewpoint adopted by the constitutional court in NUMSA obo Fohlisa v Hendor Mining Supplies recently, and followed by the labour appeal court in respect of the following questions:
  • in the scenario where an employee has been retrospectively reinstated, on what basis is the employee entitled to back pay?;
  • what prescription period is applicable to a claim for back pay based upon a reinstatement order?;
  • on what basis is the exceptio non adimpleti contractus not applicable in the scenario of a reinstatement order but only where the claim is based on contract?
  • On what basis did the labour appeal court recently decide that a declaratory order, to the effect that s197 governs a specific scenario and therefore that the ‘new employer’ is the true employer of the employees, ‘with no loss of service’, does not amount to a reinstatement order?
  • In a s197 scenario, is it required of the employees to tender their services to the new employer?
  • Does the application for a declaratory order interrupt the running of prescription, in terms of s15(1) of the Prescription Act 68 of 1969?
  • On what basis is mora interest payable when a reinstatement order is made?
  • In the scenario that a specific interest rate is applicable when the mora interest first begins to run in respect of a particular debt, what interest is applicable if there are variations in interest over the debt period?

Interpretation of collective agreements

  • In line with the constitutional court approach adopted in Commercial Workers Union of SA v Tao Ying Metal Industries, what is the latest viewpoint of the labour court as to the approach to be adopted when interpreting collective agreements?
  • What is the content of the ‘modern’ test to be utilised when interpreting agreements adopted by the constitutional court in Association of Mineworkers and Construction Union and Others v Chamber of Mines and recently followed by the labour court?
  • What is the test to determine whether or not a commissioner commits an error of law constituting a gross irregularity, rendering an award reviewable?

Industrial action: the true nature of the dispute between the parties

  • What is the latest viewpoint of the labour court as to which factors are to be taken into account to determine the true nature of a dispute?
  • With reference to National Union of Metalworkers of SA and Others v Edelweiss Glass & Aluminium, what is the latest viewpoint of the labour court as to whether or not a strike may only be called in respect of the issue(s) in dispute so referred to conciliation?

Piercing of the corporate veil: Close Corporation Act 69 of 1984

  • The test to be applied when determining whether a party should be joined in proceedings is whether such party has a substantial interest in the subject matter of the A further important factor is that the party sought to be joined is entitled to be heard on the specific question of relief. What other factors are to be taken into account?
  • What is the latest viewpoint of the labour court as to the types of special circumstances required for piercing of the corporate veil to take place?

s157(2) of the LRA: does the labour court have jurisdiction in disputes where the landlord of property, but not the employer of the employees concerned, refuses to grant the union access to such property to meet the employees of an employer, who provides services to the landlord?

  • With reference to Gcaba v Minister for Safety and Security and Others and Zungu v Premier, Province of KwaZulu-Natal and Another, what is the recent approach taken by the labour court when its jurisdiction is challenged at the outset (in limine)?
  • To what extent can an unregistered trade union (therefore not qualifying as a sufficiently representative registered trade union) challenge a landlord’s stance that it can refuse such trade union the right to access of the premises and meeting facilities on the basis that it has the undisturbed use of its property and the right to conduct business without unlawful interference?
  • When determining whether or not an alleged infringement of a fundamental right that arises from ‘employment and from labour relations’ exists, what two different approaches have the labour court recently identified to be followed?
  • What is the content of the term ‘arising from employment and labour relations’?
  • The scenario entails an unregistered trade union (obviously not entitled to organisational rights in terms of Chapter III of the LRA) and with no collective agreement in place which grants such union organisational rights. In such scenario, what is the latest viewpoint of the labour court as to whether or not such trade union can bypass the LRA mechanism for achieving such rights of access and convening meetings by trying to directly enforce their constitutional right to freedom of association and fair labour practices?

Stay of enforcement of arbitration awards pending reviews: s145(7) and s145(8) of the LRA

  • What is the latest viewpoint of the labour appeal court as to whether or not the labour court has a discretion to stay the enforcement of an arbitration award without furnishing security?
  • How did the labour appeal court recently resolve the contentious issue as to whether or not the operation of an arbitration award is automatically suspended pending the decision in the review application when the required security has been furnished?
  • According to the labour appeal court, in the scenario where the employer wished to be absolved from providing security or wished to provide security in an amount less than the threshold (s145(8)(a) and s145(8)(b)), what is the latest viewpoint of the labour appeal court as to the process to be followed?
  • What is the latest viewpoint of the labour appeal court as to whether or not public entities, such as municipalities, are required to provide security if they want the operation of arbitration awards to be suspended pending the decision of the labour court on review?
  • What are the types of factors that the labour appeal court identified that should be taken into account by the labour court when it exercises its discretion in terms of s145(8) of the LRA as to whether or not to suspend the operation of an arbitration award?

s95(5)(p) of the LRA is a transitional provision providing for the conduct of a secret ballot before engaging in a strike until the registrar issues a directive to amend the constitution of a union which does not provide for a pre-strike ballot

  • In the scenario where a union’s constitution does not provide for a pre-strike ballot, what is the latest viewpoint of the labour court as to whether or not such union members are entitled to strike without a secret ballot having been conducted?

Payment of bonuses to non-striking employees

  • On what basis did the labour court recently find that strike action does not amount to participation in the lawful activities of a union but rather the exercise of a right guaranteed by the Constitution?
  • In the scenario where an employer fails to pay both striking employees and nonstriking employees an annual performance bonus but pays a performance reward or bonus to those employees working during the strike, on what basis did the labour court recently decide that such conduct does not amount to a breach of s5(1) of the LRA and is thus permitted?
  • What are the requirements recently identified by the labour court to be complied with to prove a breach of the provisions of s5(1) of the LRA?
  • According to the labour court, what are the requirements to be met to prove that there has been an infringement of s5(2)(c)(vi) of the LRA?
  • What are the types of elements identified recently by the labour court that need to be present for an employer to be entitled to pay a ‘performance reward or bonus’ during strike action, to non-striking employees?
  • How did the labour court recently deal with the issue as to whether or not the conduct by an employer, entailing the payment of a so-called ‘performance reward or bonus’ to non-striking employees, should be dealt with in terms of s6 of the EEA (i.e. whether or not such conduct amounts to discrimination)?
  • According to the latest viewpoint of the labour court, what is the test to determine whether or not the discrimination contemplated in s5 of the LRA exists?
  • In Food and Allied Workers Union and Others v Pets Products (Pty) Ltd (2000) 21 ILJ 110 (LC), it was held that to pay a R200 voucher for non-strikers for the hard work they had performed during the strike action and for going the extra mile was a breach of s5 of the LRA. On what basis did the labour court recently decide not to follow this approach?
  • On what basis did the labour court recently agree with the approach of the appellate division in SA Commercial Catering and Allied Workers Union v OK Bazaars to the effect that measures to discourage strikers, such as the offering of financial inducements, are to be encouraged and are legally permissible?
  • The labour court, in National Union of Mineworkers v Namakwa Sands – A Division of Anglo Operations Ltd, held as follows: ‘…Indeed, in my view, in the context of a legal strike, payment of any reward, incentive or bonus should be strictly prohibited. Such payment is unnecessarily provocative and fuels an adversarial approach to collective bargaining’.  On what basis did the labour court recently disagree with such approach?

Promotion, demotion, training and benefits are not always single acts of discrimination but may be continuous

  • In the scenario where an employer’s grievance procedure, contained in a collective agreement, indicates that a party had to obtain a mediation certificate before referring a dispute externally, is the date of the dispute the date on which the act or omission occurred or, alternatively, the date on which the grievance remained unresolved and the certificate issued?
  • Recently, the labour court accepted that, within the employment context, discriminatory acts, such as promotion, demotion, training and benefits, could be once-off and/or continuous in nature. What are the consequences of such approach when taking into account the date of, for instance, non-promotion?
  • With reference to SA Broadcasting Corporation Ltd v CCMA, on what basis did the labour court recently endorse the test to be followed to determine whether or not an unfair labour practice or unfair discriminatory act may be a single act or, continuous, continuing or repetitive?

Misconduct: irretrievable breakdown in trust relationship

  • What is the test to determine whether or not an employee acted negligently?
  • What is the test utilised to determine whether or not there is an irretrievable breakdown in the trust relationship where no evidence had been adduced during either the trial or arbitration?
  • What is the latest viewpoint of the labour court as to the types of circumstances required to exist where, without leading evidence of the breakdown of the relationship, the labour court will be of the view that such breakdown exists?
  • What are some of the more important consequences of the distinction between a dismissal dispute, on the one hand, and a dispute concerning a warning, as an unfair practice dispute, on the other hand?
  • What is the latest viewpoint of the labour court as to whether or not an employee is entitled to challenge an earlier final written warning as part of a dismissal challenge before the CCMA?
  • What aspects of a final written warning may permissibly be challenged during an arbitration concerning the dismissal of an employee?
  • During the past 12 months, the labour court had various opportunities to identify a variety of factors to be taken into account to determine whether or not the dismissal of an employee for misconduct is fair. With reference to, inter alia, the approach adopted in Vodacom (Pty) Ltd v Bryne NO and Others, how are these different factors to be applied to various factual matrixes?
  • What are the elements of the charge of insubordination recently identified by the labour court, with reference to, inter aliaHumphries & Jewell (Pty) Ltd v Federal Council of Retail and Allied Workers Union and Others and Motor Industry Staff Association and Another v Silverton Spray Painters and Panelbeaters (Pty) Ltd and Others?
  • What is the consequence when an employer does not lead evidence as to the breakdown of the trust relationship but the type of case of misconduct considered clearly indicates the destruction of the trust relationship?

Secondary strikes

  • What effect must the harm caused by the secondary strike to the secondary employer have or potentially have on the business of the primary employer to render the secondary strike protected?
  • When determining the effect or impact or potential effect or impact on the business of the primary employer, is it permissible to group a number of secondary employers in a particular industry together?
  • What are the factors that the labour court recently identified to be taken into account when considering a secondary employer?
  • As far as the requirement of reasonableness is concerned, what are the three key issues recently identified by the labour court that require assessment?
  • To what extent must there be a nexus between the primary and secondary employer when determining the possible direct or indirect effect that the secondary strike may have on the business of the primary employer, i.e. the extent of pressure that may be placed on the primary employer?
  • What are the types of factors recently identified by the labour court, in order to establish whether or not a sufficient nexus exists between the primary employer and secondary employer, when considering whether or not the secondary strike is protected?
  • Is it a requirement for the secondary strike to be protected that the secondary employer should exert influence on the primary employer or that the secondary employer should have the capacity to exert influence on the primary employer?
  • How does the remoteness of possible harm on the primary employer affect the protectiveness of the secondary strike?

Refusal of an employer to reinstate an employee if the employee does not make a valid tender to perform services within a reasonable time of the reinstatement order

  • What is the procedure to be followed when there is non-compliance with an existing labour court order?
  • What test did the labour appeal court recently formulate to be utilised by an employer who lawfully and fairly wished to resist a reinstatement order?
  • The general principle is that a litigant against whom an order has been granted must comply with such order and may not unilaterally choose not to comply with it even if non-compliance is legally justified. How did the labour appeal court recently deal with the scenario where a litigant is in fact excused from compliance on the basis of impossibility by reason of unlawfulness of the act of performance?
  • A reinstatement order covering the period from the date of the dismissal to the date of the reinstatement order is an order ad factum praestandum only enforceable through contempt proceedings. How does that work in practical terms?

An employee’s claim for back pay from the date of the reinstatement order to the final outcome of proceedings at the labour court or labour appeal court is a contractual claim

  • With reference to the constitutional court judgment in National Union of Metalworkers of SA obo Fohlisa and Others v Hendor Mining Supplies, what is the latest viewpoint of the labour court as to the nature of the claim covering the period from the date of dismissal to the date of the reinstatement order?
  • What is the latest viewpoint of the labour court as to when a claim, calculated from the date of the reinstatement order to the final outcome of subsequent legal proceedings concerning such order, is due?
  • What is the latest viewpoint of the labour court as to whether or not a trade union official can make the requisite tender for services on behalf of the reinstated employees?
  • If the reinstated employees have tendered their services in terms of a reinstatement order, are they subsequently obliged to make a new tender for services when the outcome of subsequent litigation is not in favour of the employer and thus confirming the original reinstatement order?
  • What is the process to be followed by employees who are the beneficiaries of reinstatement orders when an employer refuses to reinstate them but does not challenge such reinstatement order or, alternatively, its challenge to such reinstatement order is unsuccessful?

The nature of a retention bonus agreement or employee loyalty incentive scheme agreement

  • In the scenario where an employee concluded a so-called retention bonus agreement (also called an ‘employee loyalty incentive scheme agreement’) and leaves the employ of the employer within the prohibited period, resulting in the employer deducting from the employee an amount due in terms of such agreement, what is the latest viewpoint of the labour appeal court as to whether or not such deduction was against s34 of the BCEA?
  • According to the labour appeal court, if an employee terminates his or her employment within the retention period, is he or she obliged to repay to the employer the full amount received from the employer?
  • With reference to Bonfiglioli SA (Pty) Ltd v Panaino and Renaissance BJM Securities (Pty) Ltd v Group, what is the approach recently adopted by the labour appeal court to determine whether or not an employer is entitled to deduct the amount paid to an employee in terms of a retention bonus scheme (or a so-called ‘employee loyalty incentive scheme agreement’) if the employee leaves the employer during the retention period?
  • What are the principles of reciprocity that apply in respect of retention bonus agreements?
  • What are the three circumstances under which a repudiation of a contract will be nullified or undone before its acceptance by an innocent party?

A company concluding a genuine service level agreement with a client is not a TES in terms of s198(1)(a) and s198(1)(b) of the LRA

  • What is the approach to be adopted when interpreting legislation, with reference to Natal Joint Municipal Pension Fund v Endumeni Municipality?
  • What are the four requirements recently identified by the labour court to be present before an employer becomes a TES?
  • The constitutional court, in Assign Services, indicated that the requirement of providing persons to ‘perform work for a client’ means that these persons become part of the client’s organisation to pursue the client’s purpose or business. To what extent did the labour court recently utilise this feature to determine whether or not an employer is a TES?
  • What are the two fictions created by s198 of the LRA and identified by the labour court recently?

Agency shop agreement: applicability of s25(3) of the LRA

  • What is the latest viewpoint of the labour appeal court as to whether or not the provisions of s25(3) of the LRA may be incorporated by implication in an agency shop agreement?
  • What is the difference between the rectification of a collective agreement and the retrospective amendment of a collective agreement?
  • According to the labour appeal court, is it permissible for a collective agreement to operate from a date earlier than its conclusion?

Misconduct: not necessary to mention a competent verdict when charging an employee

  • What is the latest viewpoint of the labour appeal court as to whether or not an arbitrator of the CCMA is to adopt a formalistic approach, akin to a criminal trial, when dealing with a misconduct matter, and what are the consequences of an arbitrator having adopted such approach?
  • What is the latest viewpoint of the labour appeal court as to the consequences of an employer charging an employee with a specific offence, where such employee is unable to prove guilt in respect of such offence, but is able to prove guilt in respect of an offence that the employee had not been charged with?

The rights of individuals during a retrenchment exercise

  • On what basis did the constitutional court recently find that s189(1) of the LRA, excluding the right of individuals to be consulted during a retrenchment exercise, is constitutionally valid?
  • Having found that the right not to be unfairly dismissed is not sourced in the Constitution but, indeed, in the LRA, on what basis did the constitutional court recently find that there was no need for individual consultation in a retrenchment environment?
  • On what basis did the constitutional court recently find that the right to a fair procedure in a retrenchment process, which excludes individual consultation, passed the constitutional test of rationality?
  • According to the constitutional court, what are the remedies of an individual excluded from the consultation process during a restructuring exercise but wanting to challenge the substantive fairness of his or her dismissal?
  • Section 23(1)(d) of the LRA permits a collective agreement to bind, under certain circumstances, employees who are not members of the registered trade union or trade unions as parties to the agreement. On what basis did the constitutional court recently find that s23(1)(d) of the LRA is constitutionally valid?

Section 77(3) of the BCEA: employee entitled to bring an unlawful dismissal claim before the labour court as well as an unfair dismissal claim before the CCMA, arising from the same set of facts

  • With reference to Makhanya v University of Zululand, what is the latest viewpoint of the labour appeal court as to whether or not an employee is entitled to both a claim based upon a breach of contract (in the labour court) and a claim based upon the unfair conduct of the employer (in the CCMA)?
  • In the above regard, what is the viewpoint of the labour appeal court as to the importance of the fact that the applicant was unsuccessful in his or her claim before the CCMA?

Interpreting an employee’s contract of employment to determine a retirement age

  • What is the so-called purposive and objective approach recently adopted by the labour appeal court and based on various judgments of the supreme court of appeal?
  • What are the types of factors identified recently by the labour appeal court that will justify a conclusion that the employee’s terms and conditions of employment, specifically related to retirement, had not unilaterally been varied?

Business rescue

  • What does the concept of business rescue entail?
  • What is the purpose of placing a company under business rescue?
  • Section 133(1)(a) of the Companies Act 71 of 2008 states that, during business rescue proceedings, no legal proceedings may be commenced or proceeded with except with the written consent of the legal practitioner. Alternatively, such legal proceedings may be commenced or proceeded with, with the leave of the court, in terms of s133(1)(b) of such Act.  Does this include the labour court?

Lockout principles

  • What are the principles applicable to urgency within a strike and lockout environment?
  • What is the difference between the prerequisite for a protected lockout that there must be a demand by the employer and the prerequisite that the trade union (and the employees) must receive notification of the lockout?
  • What is the latest viewpoint of the labour court as to when a lockout endures?
  • What is the latest viewpoint of the labour court as to the content of the lockout notice to be given by an employer?
  • What are the consequences of a trade union, in response to a lockout, suspending strike action? Contempt of court proceedings
  • Rule 7(1) of the labour court rules requires that an application must be brought on notice to all persons who have an interest in the application. On the other hand, clauses 13.1 and 13.2 of the Practice Manual of the labour court makes it mandatory that applications for contempt must be made ex parte.  How did the labour court recently reconcile these two approaches, with reference to s173 of the LRA?
  • Recently, the labour court was faced with the challenge that clauses 13.1 and 13.2 of the Practice Manual, dealing with contempt of court proceedings, disregard the audi alteram partem principle, even if the order is not final and, therefore, such process undermines substantive law (the duty to explain to a court why notice could not or should not be given is an essential requirement of our law). What is the latest viewpoint of the labour court in this regard?
  • Does a rule nisi granted in terms of rule 13 of the Practice Manual envisage interim relief?
  • What is the latest viewpoint of the labour court as to the stance that obtaining an ex parte contempt order against union negotiators tilts the power balance in the collective engagement in favour of the employer and, therefore, the mere existence of a contempt order and its implications is enough to affect power play?
  • What are the three prerequisites to be proven beyond reasonable doubt for contempt of court to have been established?
  • What is the nature of the evidentiary burden resting on the respondent once the three requisites have been proved by an applicant and, furthermore, what are the consequences of the respondent failing to discharge such burden?
  • Can a union be held vicariously liable for contempt of court by its members?

Automatic archiving of a matter upon expiry of time limit

  • What is the content of the principle of expeditious resolution of disputes and, more recently, in Food and Allied Workers Union on behalf of Gaoshobelwe v Pieman’s Pantry, what did the constitutional court have to say about this?
  • What are the principles underpinning the archiving of a statement of case and the retrieval of the relevant file?
  • What is the status of the Practice Manual of the labour court?
  • What are the consequences of the failure to comply with the time limits contained in the Practice Manual of the labour court formulated by the labour appeal court in Macsteel Trading Wadeville v Van der Merwe and recently confirmed by the labour court?
  • According to the labour court, what are the two methods to be adopted when dealing with a matter being archived in terms of clause 16.1 of the Practice Manual of the labour court?
  • With reference to Samuels v Old Mutual Bank, what is the latest viewpoint of the labour court as to what is required of an applicant party to an unfair dismissal claim to counter a rule 11 dismissal application by the respondent party?
  • Where the parties have exchanged their pleadings, a pre-trial must be held within 10 days dealing with all the issues mentioned in rule 6(4)(b) of the labour court rules as well as clause 10.4.2 of the Practice Manual of the labour court. What are the options recently identified by the labour court as to move the matter along and what are the powers of the registrar in this regard?

Employer’s unilateral abandonment of a disciplinary enquiry midstream contrary to the contractual right to a formal disciplinary enquiry

  • What is the difference between the jurisdiction of the labour court when dealing with an unlawful dismissal as opposed to its jurisdiction when it deals with a claim that entails a fundamental breach of a contract?
  • What are the consequences of a disciplinary code that embodies more elaborate procedures than the LRA requires and an employer’s failure to comply with these elaborate procedures?
  • What is the difference between a summary dismissal and a dismissal without a disciplinary enquiry?
  • Is it permissible that incompatibility and a breakdown of trust can be advanced by an employer as distinct reasons for invoking a summary dismissal provision?

The enforcement of compliance orders and written undertakings obtained prior to 1 January 2019

  • What is the viewpoint of the constitutional court as to the common law rule that, in the absence of an express provision to the contrary, a statute should be considered as only affecting future matters and, furthermore, do not take away rights vested at the time of their promulgation?
  • In the scenario where applications have been made to the labour court to have compliance orders made orders of such court and were pending on 1 January 2019, does the labour court have jurisdiction to determine such matters or, alternatively, does the CCMA have such jurisdiction?

CCMA’s jurisdiction to arbitrate an unfair discrimination dispute that arose prior to the date of the amendments to the EEA, namely, 1 August 2014

  • What is the viewpoint of the labour court as to whether or not the amendments to s10(6) of the EEA apply to all referrals of unfair discrimination disputes to the CCMA made after 1 August 2014 or, alternatively, whether the CCMA has jurisdiction to arbitrate disputes which causes of action arose before such amendments and were referred to it in terms of the amended s10(6) of the EEA?
  • It is settled law that legislation is not intended to be retroactive, but how does legislation affect matters which are the subject matter of pending proceedings prior to the date of a statute coming into operation?

Principle of competent verdict: if the evidence does not prove the specific misconduct cited in the charge sheet but proves a related charge, then the employee may be found guilty of the related charge (the so-called competent verdict) subject to the general principle that the employee should not be prejudiced

  • What is the latest viewpoint of the labour appeal court as to the following scenario: An employee is charged with a specific offence (‘X’) but at the disciplinary enquiry the employer is unable to prove such charge although the evidence indicates that the employee is guilty of another charge (‘Y’)?
  • Under which circumstances will it be permissible for the employer to find the employee guilty of Y?
  • What is the latest viewpoint of the labour appeal court as to the scenario where an employer charges an employee with misconduct with the element of intent but the employer is unable to prove intent and is only able to prove negligence?
  • What is the viewpoint of the labour appeal court in the scenario where an employer incorrectly formulated a charge against an employee and proceeded to hold a disciplinary enquiry against such employee on the incorrect charge and, during such enquiry, it is proved that the employee is indeed guilty of another offence?

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It is apparent that government initially took the viewpoint that vaccination against Covid-19 should not be compulsory.  However, it appears that the recently-promulgated Consolidated Directions on Occupational Health and Safety Measures (‘the Directions’)[1] signifies a very different approach.

Watch out for the SALLR 37th Annual Seminar this year.

Watch out for the SALLR 37th Annual Seminar this year.