This is the second alert notice of those issues that will cause YOU to slip and definitely trip in 2025. These notifications have been compiled largely on the basis of queries that our call- centre receive, as well as the solutions provided thereto by our fast-tracking team.
Some of these alert notice issues will eventually be incorporated into our mouth-watering annual seminar workbook, as well as our delicious and spicy PowerPoint presentation compiled on an annual basis.
The attached notice deals, amongst others, with the following tricky issues:
- the extent of the duty to disassociate, to be undertaken by an employee himself/herself, from primary misconduct in order to escape complicity
- the factors to be taken into account to determine whether a dismissal is a sensible operational response to risk management
- the complexities an employer will face when a bargaining council challenges an incentive scheme established in terms of the main agreement concluded at such bargaining council
We look forward to YOU being part of the CCMA and SALLR continuing learning events – to secure YOUR seat, register here
FURTHER DETAIL OF THE IDENTIFIED TRICKY ISSUES
- How did the labour court recently apply the review test formulated by the labour appeal court in Quest Flexible Staffing Solutions (Pty) Ltd (a division of Adcorp Fulfilment Services (Pty) Ltd v Legobate (2015) 36 ILJ 968 (LAC) in the scenario where an employee admits associating himself/herself with the primary misconduct committed by others?
- What is the extent of the duty to disassociate, to be undertaken by an employee himself/herself, from such primary misconduct in order to escape complicity, with reference to Commercial Stevedoring Agriculture and Allied Workers Union and Others v Oak Valley Estates and Another (2022) 43 ILJ 1241 (CC)?
- With reference to National Union of Metalworkers of SA and Others v Dunlop Mixing and Technical Services (Pty) Ltd [2021] 3 BLLR 221 (SCA), what approach did the labour court recently adopt to determine when a picket loses its protected status?
- What are the factors recently identified by the labour court to determine whether a dismissal is a sensible operational response to risk management?
- The scenario is as follows: the main agreement concluded at bargaining council level described certain employees to be remunerated on the basis of an hourly rate linked to the hours/days worked. Alternatively, it also allowed these employees to be paid on the basis of the output of work done, provided that certain conditions have been met. One of these conditions is that the above incentive scheme must attract the approval of the bargaining council. The bargaining council found that the employer had not complied with a specific further requirement, namely, the presence of a so-called joint committee and, therefore, did not grant approval. The relevant bargaining council subsequently issued a compliance order to ensure that the incentive scheme complied with the relevant requirements. Despite attempts by the employer to comply with the compliance order, the bargaining council did not approve such scheme. Instead, it referred a dispute concerning the employer’s non-compliance with the requirements to arbitration, before an arbitrator appointed by the bargaining council. With reference to the aforesaid scenario, how did the labour court recently deal with the following issues:
- with reference to, inter alia, Fidelity Cash Management Service v CCMA and Others (2008) 29 ILJ 964 (LAC) and Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC), how did the labour court meet the review test of an arbitration award in its approach that such test has a ‘logical chronology, consisting of various considerations to be taken into account at such chronological sequence’?
- what is the nature of a compliance order issued?
- with reference to the abovementioned approval required from a bargaining council, once compliance is established, what is the nature of such approval?
- what are the principles governing the issue of substantial compliance with a statutory enactment as formulated in, inter alia, National Commissioner of SA Police Service and Others v Phopho (2021) 42 ILJ 1666 (LAC), Maharaj and Others v Rampersad 1964 (4) SA 638 (A) and National Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others (2015) 36 ILJ 363 (CC), and so applied by the labour court in casu to resolve the above dispute?
