Slip & Trip Alert Notice 2

Slip 'n Trip

This is the second alert notice of those issues that will cause YOU to slip and definitely trip in 2024.

These issues will be incorporated into our famous seminar textbook as well as our highly sought-after PowerPoint presentation. The attached notice deals with the following ‘tricky issues’: the principles governing an arbitrator who ‘steps into the shoes’ of another arbitrator who has recused himself/herself,  the specific factors to be taken into account when determining negligence in labour law,  the latest development regarding the requirement to provide evidence as to the alleged breakdown in the trust relationship between the employer and employee and the role played by ‘risk management’ when determining the appropriate sanction.

We look forward to YOU being part of this continuing learning event – secure YOUR seat,  register here.

  • With reference to the test formulated by the supreme court of appeal, in Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA), how did the labour court recently consider the application of such test to determine that an arbitrator, who ‘steps into the shoes’ of another arbitrator, who has recused himself or herself, is unable to effectively discharge the functions to be performed, so contained in this test?
  • To what extent is the doctrine of functus officio applicable when an arbitrator, having commenced an arbitration, recuses himself or herself, with reference to, amongst others, Zackey and Another v Magistrate of Benoni and Another 1957 (3) SA 12 (T)?
  • With reference to, inter alia, Standard Bank of SA Ltd v Sibanda 2021 (5) SA 276 (GJ), what is the recent viewpoint of the labour court as to an agreement between the parties that the presiding officer (or arbitrator) may continue with the matter based on the recording of the earlier proceedings, instead of conducting a hearing de novo?
  • The review court is not required to consider every factor individually and how the arbitrator treated and dealt with each factor and then determine whether a failure by the arbitrator to deal with it is sufficient to set the award aside. It is settled law that this piecemeal approach of dealing with an award is improper and the reviewing court must consider the totality of the evidence. What is the short review test recently confirmed by the labour court?
  • An award of an arbitrator will only be set aside on review if both the reasons and the result are unreasonable. How does the labour court apply this approach?
  • With reference to Mukheiber v Raath and Another 1999 (3) SA 1065 (SCA), what is the test for negligence so recently confirmed by the labour court?
  • In labour law, the test for negligence is not to be applied ‘in vacuo’ or against the general standards of a ‘reasonable person’, with reference to the Mukheiber judgment. What are the specific factors to be taken into account when determining negligence in labour law? What is the difference between negligence and gross negligence? What is the potential effect of medicine when considering the issue as to whether or not an employer acted negligently or was grossly negligent?
  • In Edcon Ltd v Pillemer NO and Others (2009) 30 ILJ 2642 (SCA), it was held that the employer had led no evidence showing the alleged breakdown in the trust relationship and that, in the absence of this evidence, it was unfair to determine that dismissal is the appropriate sanction. How did the labour court recently track the development since the handing down of such judgment and what is the current test to be utilised to determine whether or not the relationship between the employer and the employee has been irretrievably broken down?
  • What is the recent viewpoint of the labour appeal court as to the role played by ‘risk management’ when determining whether or not dismissal is the appropriate sanction?