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

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?