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

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?