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

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 alia, Humphries & 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?