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Citation
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Judgment date
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| December 2008 |
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A dismissal of an application for failure to prove its case in motion proceedings can be a final judgment and bar relitigation.
Labour law – res judicata – motion proceedings – dismissal for failure to prove case on affidavits – effect as final judgment; job evaluation evidence – expert evidence required to compare posts across different organisational structures; relitigation – when plea of res judicata bars repeat proceedings.
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23 December 2008 |
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Commissioner ignored critical workplace procedure and adjudicated on an uncharged allegation; arbitration award set aside and remitted.
Labour law — review under s145 LRA — gross irregularity where Commissioner failed to consider critical workplace procedure (non‑obligation to undergo alcohol testing) and determined matter on an uncharged allegation; award set aside and remitted for rehearing.
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18 December 2008 |
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A reviewing court will not overturn an arbitrator’s interpretation absent a process defect or an irrational outcome.
Labour law – Interpretation and application of Collective Agreement – Review under s24 LRA – Standard of review: process and whether a reasonable decision‑maker could have reached the award – Disagreement with arbitrator’s interpretation not a reviewable ground. Condonation for late review where no prospects of success.
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18 December 2008 |
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An arbitrator lacked jurisdiction where the dispute concerned unilateral change to employment terms, not collective-agreement interpretation.
Labour law – Jurisdiction of bargaining council/arbitrator – Whether dispute about unilateral change to terms of employment (short time) falls under s24 (interpretation/application of collective agreement) – Effect of conciliator’s certificate and prior court proceedings on jurisdiction – Recharacterisation of disputes and nullity of awards issued without jurisdiction.
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18 December 2008 |
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Reported
No absolute right to legal representation in CCMA dismissal arbitrations; s140(1) is rational and appeal dismissed.
Labour law – CCMA arbitration – legal representation – scope of s140(1) LRA – no absolute right to counsel in misconduct/capacity dismissal arbitrations; procedural fairness – parties bound by founding papers in review proceedings; rationality/legitimacy of limitation – speedy, informal dispute resolution; PAJA and Sidumo – primacy of LRA procedure in CCMA arbitral context.
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5 December 2008 |
| November 2008 |
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Court interdicted employer deductions and ordered repayment pending resolution of OSD overpayment dispute at the PHWSBC.
Labour law – urgent interim relief – dispensation of Rule 8 time periods – interdiction of employer deductions from employees’ remuneration pending sectoral bargaining council dispute – repayment of amounts deducted – costs on attorney-and-client scale.
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15 November 2008 |
| September 2008 |
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Reported
Rule 6(7) permits enrollment for hearing but requires notice so a defaulting party can show good cause; a bar and default judgment without notice invalid.
Labour Court rules – Rule 6(7) – Directive to enroll for hearing where party defaults – Registrar must give notice to both parties and indicate enrolment under Rule 6(7) so defaulting party can show "good cause"; directive permanently barring appearance and default judgment without notice irregular and liable to be set aside.
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19 September 2008 |
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Reported
Appellant held liable under section 197 after predecessor’s business transferred as a going concern; alleged waiver ineffective.
Labour law – s197 LRA – transfer of business as a going concern – objective multi‑factor test (assets, workforce, premises, clientele, continuity) – purchase of assets from third party does not preclude transfer – alleged waiver/indemnity in settlement letter insufficient to bar enforcement of prior judgment.
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2 September 2008 |
| August 2008 |
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Reported
An applicant must exhaust the EEA’s Chapter V enforcement procedures before litigating Chapter III affirmative-action breaches in court.
Employment Equity Act – Chapter III (affirmative action) obligations – enforcement must proceed via Chapter V monitoring/enforcement procedures before court proceedings – failure to prefer a designated-group applicant does not automatically constitute unfair discrimination under s6 – s50(1)(f) does not permit bypassing Chapter V.
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21 August 2008 |
| June 2008 |
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Reported
Resignation as director does not automatically terminate employment; intention and remuneration at dismissal determine unfair dismissal and compensation.
* Labour law – resignation – whether resignation from office of director constitutes resignation from employment generally – intention must be clear and unequivocal.
* Company law v labour law – director’s office distinct from employment; a director may also be an employee; composite offices require factual analysis.
* Unfair dismissal – employer’s acceptance of resignation as termination of employment where employee intended otherwise can constitute substantively unfair dismissal.
* Compensation – s 194 LRA requires calculation at the employee’s remuneration on the date of dismissal.
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20 June 2008 |
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Reported
Dismissal for employee theft and rule breaches in retail was substantively fair given surveillance evidence and shrinkage risk.
Labour law – dismissal for theft/dishonesty – evidentiary weight of surveillance footage and witness evidence – employer operational need to curb shrinkage – sanction appropriateness; review of arbitration awards.
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20 June 2008 |
| May 2008 |
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Reported
Whether s189A is triggered before dismissal is genuinely contemplated or only after alternatives are exhausted.
Labour law – Collective dismissals – Interpretation and interplay of ss 189 and 189A LRA – Duty to consult triggered when employer genuinely contemplates dismissal after alternatives exhausted – Splitting retrenchments to avoid s189A constitutes fraudem legis only if bona fide contemplation of larger retrenchments existed but was concealed.
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19 May 2008 |
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Reported
Registrar’s failure to give statutorily required notice and remedy opportunity rendered refusal non‑final; matter remitted for compliance.
Labour law – registration of trade unions – section 95, 96 and 111 LRA – registrar must give written reasons and 30‑day remedy period before taking final refusal – failure to comply renders decision non‑final and non‑appealable – matter to be remitted for statutory compliance.
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19 May 2008 |
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Reported
Short-term, event-specific fixed-term contracts with an express no-renewal clause negate a reasonable expectation of renewal under s186(1)(b).
Labour law – s186(1)(b) LRA – reasonable expectation of renewal of fixed-term contracts; event-specific short-term contracts; contractual exclusion clauses; authority of manager/coach to bind employer; jurisdiction of CCMA.
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12 May 2008 |
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Reported
An award of compensation after finding employer failed to prove dismissal is irrational; matter remitted for proper remedy determination.
* Labour law – unfair dismissal – burden of proof – employer must prove substantive fairness; if not proved reinstatement is default remedy.
* Labour law – remedy – section 193(2) LRA – reinstatement, re‑employment or compensation; arbitrator must apply and give reasons when departing from reinstatement.
* Judicial review – section 145(4) LRA – remit versus substitution; courts should be cautious to substitute commissioner’s decision absent exceptional circumstances.
* Administrative law – irrationality – awarding compensation after finding employer failed to discharge onus, without reasons, is irrational.
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9 May 2008 |
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Reported
An arbitrator's refusal to award procedural-compensation stands unless it is unreasonable or tainted by a gross irregularity.
* Labour law – arbitration awards – review under section 145(2) LRA – defect defined as misconduct, gross irregularity or exceeding powers; suffused by constitutional reasonableness standard (Sidumo/Carephone).
* Procedural fairness – compensation for procedural irregularity – application of Johnson formula and discretion to refuse compensation where fairness demands.
* Gross irregularity – distinction between process defects (material failure to consider evidence) and mere judgment calls; refusal to award compensation not automatically reviewable.
* Standard of review – courts must not lightly substitute their views for arbitrators; only set aside awards that are unreasonable or tainted by a material defect.
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8 May 2008 |
| April 2008 |
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Reported
Failure to consider employee’s proven false testimony when awarding reinstatement was a gross irregularity; reinstatement impracticable for a senior commissioner.
Labour law — CCMA arbitration award review — gross irregularity — commissioner’s failure to consider employee’s false evidence under oath when deciding relief — relevance of false evidence to remedy (not to validating substantive reason for dismissal) — s193(2)(c) LRA ‘reasonably impracticable’— senior public role and integrity — reinstatement incompetent; compensation awarded.
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18 April 2008 |
| March 2008 |
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Reported
Applying the reality test, the court held the appellant, not the intermediary, was the true employer and liable for compensation.
Labour law – determination of employer where an intermediary entity is interposed – application of the ‘reality test’ (Denel v Gerber) considering supervision/control, organisational integration and economic dependence; intermediary as conduit; s 198 inapplicable; absence of clean hands not decisive.
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20 March 2008 |
