Slip & Trip Alert Notice 7

Slip 'n Trip

This is the seventh 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. Attached kindly find such notice dealing with the following ‘tricky issues’: different results achieved by breathalyser tests and blood sample tests, settlement agreements, the requirement of post-facilitation conciliation when challenging the substantive fairness of a dismissal in terms of s189A(7) of the LRA, the absence of oral evidence and the requirement of a stated case, and taxing masters, the taxation of costs and costs awarded for non-legal practitioners.

We look forward to YOU being part of this continuing learning event – secure YOUR seat at our 40th Annual SALLR Seminars,  register here.

  • The scenario is as follows: an employee is tested positive for alcohol, using a breathalyser test on an Alcoblow Rapid machine. Thereafter, the employer utilised another machine, the Lion Alcometer 500 and, again, it indicated alcohol content. However, a blood sample drawn from the employee and so analysed by Ampath Laboratory indicated the opposite result. With reference to these circumstances, how did the labour court recently deal with the following issues:
    • what is the difference between being charged with intoxication, on the one hand, and, on the other hand, being charged with ‘having tested positive for alcohol’?
    • what are the grounds on which a breathalyser test may produce false positive results?
  • What are the principles of a compromise and what is the nature of an agreement concluded in full and final settlement, as confirmed by the labour court?
  • The labour court recently found that a full and final settlement concluded on the basis of being ill-advised by legal representatives does not render same unlawful. What are the considerations at play when considering this issue?
  • On what basis did the labour court recently decide that a settlement agreement cannot be set aside because to do so would be contrary to good governance and accountability?
  • With reference to SA Post Office Ltd v Communication Workers Union obo Permanent Part-Time Employees (2014) 35 ILJ 455 (LAC), what are the fundamental requirements to be met before a settlement agreement can be made an order of court?
  • With reference to Eke v Parsons 2016 (3) SA 37 (CC), what approach did the labour court recently adopt when it stated that, when considering making a settlement agreement an order of court, it has to consider whether the agreement accords with both the Constitution and the law and, furthermore, must not be at odds with public policy?
  • What distinction is to be drawn between a case where the parties to litigation have reached a compromise and approach the court to make the settlement agreement an order of court and a case where the settlement agreement is disputed and one party seeks for it to be made an order of court while the other party seeks for it to be set aside?
  • The scenario is as follows. The employer initiated a s189A process by issuing a notice in terms of s189(3) of the LRA to the affected employees. The CCMA facilitated the consultation process and subsequently the employer dismissed the employees for operational reasons. Under the above circumstances, what is the recent view of the labour court as to the following issues:
    • is the employer required to seek conciliation of the dispute before the CCMA prior to filing its statement of claim challenging such substantive fairness of the dismissal, in terms of s189A(7) of the LRA?
    • what is the time period to expire within which the employer may refer the dispute to the labour court if, indeed, it is required that the matter is to be referred to the CCMA or the relevant bargaining council?
    • in the above scenario, to what extent does the facilitation process constitute a substitute for conciliation?
  • On the one hand, it appears that National Union of Metalworkers of SA and Others v Driveline Technologies (Pty) Ltd and Another 2000 (4) SA 645 (LAC) and a number of other labour court judgments require conciliation before the filing of a statement of claim with the labour court by the employer. On the other hand, Van Niekerk J, in National Union of Metalworkers of SA obo Members and Others v Bell Equipment Co SA (Pty) Ltd (2011) 32 ILJ 382 (LC), held that post-facilitation conciliation is not a requirement for referral to the labour court in terms of s189A(7)(b)(ii). How did the labour court recently resolve these different approaches?
  • In the absence of a stated case, to what extent must oral evidence be led on the material facts in dispute at arbitrations in terms of the LRA?
  • What is the effect of an agreement between the parties that no oral evidence needs to be led but they fail to agree upon a stated case?
  • With reference to Arends and Others v SA Local Government Bargaining Council and Others [2015] 1 BLLR 23 (LAC) and Kgoale v Thaba Chweu Local Municipality and Others (JR2863/19), the labour court recently reiterated the approach that, in the absence of a stated case, an arbitration cannot be conducted in a fair manner. However, it went further and expressed the viewpoint that, despite the accreditation of such bargaining council, the director of the CCMA, in conjunction with the secretary of the bargaining council, may allocate an arbitrator to arbitrate the dispute. On what basis is such viewpoint founded?
  • What was the position in terms of the CCMA rules as well as the rules of all bargaining councils, before 2015, as to whether or not cost orders made by arbitrators are to be taxed by taxing masters so appointed?
  • In 2015, the CCMA amended its rules and decided to remove taxation based on the magistrates’ courts tariffs. When the SA Local Government Bargaining Council published its main collective agreement and new rules in 2015, it adopted the amended CCMA rule 39 in a slightly amended form because, instead of stipulating the cost in rule 39(4), it decided to base the cost on tariffs that the council would publish from time to time. However, in 2018, the CCMA again amended rule 39. This amended rule increased the day fees for legal practitioners to R7 000.00 (for the first day of arbitration) and R4 700.00 (for additional days) and all provisions concerning taxing masters and taxation of costs were removed. Again, when the said bargaining council amended its main collective agreement in 2019, it revised rule 39 based on the latest amendments of the CCMA rules and it also removed any reference to taxing master and taxation of costs in its rules. The 2019 edition of these bargaining council rules (rule 39) is currently still applicable. How are these rules, so relating to taxing masters, taxing officers or the taxation of costs, to be interpreted?
  • On what basis is a bargaining council (as well as the CCMA) entitled to award costs for non-legal practitioners?
  • The South African Local Government Bargaining Council rules differ from the CCMA rules in that they do not provide for the legal costs for practitioners to be R7 000.00 for the first day of arbitration and R4 700.00 for additional days. These rules indicate that, pertaining to such costs payable to legal practitioners, the amounts so payable are applicable to the Council’s fee structure, which is determined by the executive committee of the Central Council from time to time. What are the consequences of this when parties appear before such bargaining council?
  • If there is a dispute between the parties as to costs awarded in respect of legal practitioners, it appears that there is no mechanism to resolve such disputes, seeing that the current South African Local Government Bargaining Council fee structure does not cater for this scenario. With reference to the aforesaid scenario and taking into account the approach of the labour court in Okhahlamba Local Municipality v Mabuya and Others (2022) 43 ILJ 198 (LC), does the South African Local Government Bargaining Council or the CCMA have jurisdiction to make costs orders on an attorney and clients scale?