The First List Of Issues To Be Considered During The Upcoming South African Labour Law Reports’ 36th Annual Seminar

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?