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Citation
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Judgment date
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| November 2009 |
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Reported
Ongoing discriminatory pay practices are continuous acts, so CCMA jurisdiction is not lost by delay; review dismissed.
Labour law – unfair labour practice and unfair discrimination – s191(5) LRA time limits – ongoing or repetitive discriminatory pay practices constituting continuous acts – jurisdiction of CCMA to entertain timeous referrals; condonation – requirement to apply promptly; review of CCMA rulings and certificate of outcome.
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18 November 2009 |
| October 2009 |
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Reported
Section 197 may apply to second‑generation transfers on termination of an outsourcing agreement; purposive, constitutional interpretation required.
Labour law – Section 197 LRA – Transfer of business as a going concern – Applicability to second-generation transfers where outsourced services revert to the original employer or are re‑contracted – Purposive and constitutionally informed interpretation of "transfer" – Literal meaning of "by" rejected if it defeats statutory purpose.
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9 October 2009 |
| September 2009 |
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Condonation refused for late filing of appeal record due to flagrant rule breaches and inadequate explanation.
Labour Appeal Court — condonation for late filing of appeal record — Rule 5(8) and Rule 5(17) compliance — defective application lacking notice of motion — transcription delays insufficient explanation — prospects of success must be pleaded — attorney negligence not an automatic excuse.
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18 September 2009 |
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Reported
Employer’s failure to re-invite the union and use of FIFO rendered the retrenchments procedurally and substantively unfair.
Labour law – retrenchment – procedural fairness – employer’s duty to provide relevant financial information and to re-invite a union that suspended participation; Labour law – retrenchment – selection criteria – FIFO not fair and objective where not agreed and open to abuse; Remedy – unfair retrenchment entitles reinstatement, employer may conduct fresh fair retrenchment if necessary.
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2 September 2009 |
| August 2009 |
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The applicant’s dismissal for representing a colleague and lodging grievances was automatically unfair; 24 months' compensation awarded.
Labour law – automatically unfair dismissal – s187(1)(d) LRA – victimisation for representing a co‑employee and lodging grievances; employee entitlement to fellow‑employee representation (Code of Good Practice); evidential burden under Kroukam – employee must raise credible possibility, employer to rebut; maximum compensation and costs awarded.
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28 August 2009 |
| June 2009 |
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A transport subsidy demand is a wages/conditions issue and barred from strike by existing collective agreements.
Labour law – collective agreements and peace clauses – whether a transport subsidy/allowance is a wages and conditions of employment issue – effect on right to strike under s65(1) of the LRA – relevance of certificate of non-resolution issued under s135(5).
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19 June 2009 |
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Reported
Compensation for occupational detriment from protected disclosures must be just and equitable, remuneration serving as a statutory cap rather than the automatic measure.
Protected disclosures – occupational detriment under PDA – deemed unfair labour practice under LRA – section 194(4) compensation must be just and equitable and is capped at 12 months' remuneration; remuneration is a cap not the measure – quantification considers patrimonial losses and solatium factors (humiliation, publication, employer conduct, protraction) – costs including senior counsel recoverable.
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2 June 2009 |
| May 2009 |
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Whether dismissal for medical incapacity under a DMA was procedurally and substantively fair.
Labour law; medical incapacity dismissals; collective Disability Management Agreement (DMA); categorisation and re‑categorisation procedures; joint committee functions; procedural fairness; Sidumo standard of review; reasonableness of arbitration award.
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18 May 2009 |
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Reported
Non‑union employees in the same bargaining unit may join a union‑called strike if the union complied with s64 pre‑strike procedures.
Labour law – right to strike – s64(1) LRA – scope and content of strike notice – purposive construction – whether non‑union employees in same bargaining unit may join union‑called strike without separate conciliation or notice – evidentiary burden to prove union membership under union constitution – automatic unfair dismissal for participation in protected strike.
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14 May 2009 |
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Reported
Labour Court cannot set aside an arbitration award not challenged in the papers; alternative relief and joinder requirements must be respected.
Labour law – arbitration awards – s158(1)(c) LRA – limits on making awards orders of court; alternative relief – relief limited by pleadings and papers; joinder – necessity to join arbitrator/ bargaining council where they have direct interest; conditional reinstatement – effect of failure to fulfil condition.
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8 May 2009 |
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Reported
Gross dishonesty by an employee in a payroll role rendered dismissal both substantively and procedurally fair; arbitration award set aside.
Labour law – dismissal for dishonesty – time-sheet fraud by employee in position of trust – gross dishonesty may render continued employment intolerable. Review of arbitration award – whether decision a reasonable decision‑maker could not reach (Sidumo standard) – importance of considering totality of evidence including admissions. Procedural fairness – ambiguous charge sheet and missing original documents do not automatically vitiate process where hearing de novo and overall fairness established. Consolidation – related appeals with identical records may be consolidated for efficiency.
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8 May 2009 |
| March 2009 |
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Reported
Genuine, reasonable reinstatement offers may justify denying compensation for an unfair dismissal.
Labour law – unfair dismissal – remedies under s193(1)(c) and s194(1) of the LRA – distinction between awarding compensation (value judgment; appellate court may substitute its view) and fixing amount (narrow discretion) – effect of employer’s genuine reasonable offers of reinstatement – refusal of compensation where employee unreasonably rejects reinstatement.
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26 March 2009 |
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Reported
An agreed 'effective date' cannot displace the actual transfer date for s197; dismissal connected to a transfer is automatically unfair.
Labour law – Transfer of business (s197) – date of transfer is factual moment transfer occurs (when suspensive conditions fulfilled), not merely 'effective date' agreed between parties; dismissal for or related to transfer automatically unfair (s187(1)(g)); evidential burden on employee to show dismissal and transaction within s197; employer must disprove transfer-related reason; compensation under s194(3) is discretionary but limited to 24 months.
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10 March 2009 |
| February 2009 |
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Labour Court erred in substituting arbitration reinstatement; reinstatement ordered as proper remedy and review dismissed.
Labour law – arbitration awards – review standard versus appeal – reinstatement as primary remedy under s193 LRA – prior disciplinary statements and trust breakdown – employer-caused delay not barring reinstatement.
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24 February 2009 |
| January 2009 |
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Employee’s refusal to sign new contract repudiated it; non‑payment lawful and resignation was not a constructive dismissal.
Employment law – change of contractual dispensation after consultation; employee’s refusal to sign = repudiation; repudiation relieves employer’s reciprocal duty to pay; constructive dismissal requires employer culpability and wrongful conduct; mere non‑payment is not automatically constructive dismissal where employee is in breach.
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13 January 2009 |
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A commissioner seized with arbitration must exercise independent discretion on merits; prior substantive rulings do not bind a succeeding commissioner.
Labour law – arbitration – scope of commissioner’s discretion under s138(1) LRA – commissioner seized with dispute must independently determine substantial merits and admissibility of evidence. Arbitration procedure – distinction between jurisdictional rulings (condonation/jurisdiction) which bind successors and substantive rulings which do not when matter is postponed to another commissioner. Review – successor commissioner’s reliance on earlier substantive ruling is reviewable and can be set aside.
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13 January 2009 |
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Labour Court upheld CCMA award of unfair dismissal compensation and dismissed employer’s review, granting conditional leave to appeal.
Labour law – unfair dismissal – CCMA award – review – commissioner’s factual findings reasonable and justifiable; employer’s failure to produce key witnesses and particulars fatal to review; selective re‑employment evidencing unfair conduct; conditional leave to appeal subject to payment of award and interest.
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8 January 2009 |
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Labour Court enforces arbitration reinstatement award as court order; reinstatement includes backpay, separate BCEA wage claims unnecessary.
Labour law — enforcement of bargaining council arbitration awards under s158(1)(c) LRA; dispute of fact in motion proceedings (Plascon-Evans test); unreasonable delay vs. Prescription Act; reinstatement orders restore contract and include backpay; jurisdiction under s77(3) BCEA vis-à-vis compliance orders.
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6 January 2009 |
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An employee cannot bypass LRA/CCMA dispute processes by recasting employment claims as BCEA or common-law causes of action.
Labour law — jurisdiction — interplay between LRA and BCEA — limits on using common-law contract and delict to bypass LRA dispute resolution; Act 40 of 2002 notice requirements against organs of state; prescription and interruption by abandoned CCMA proceedings; no independent delictual right to dignity in Labour Court.
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6 January 2009 |
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An employer breached the contractual duty of fair dealing by suspending a senior public servant without independent discretion or hearing.
Labour law – Public-sector employment – Common-law contractual duty of fair dealing – Pre-suspension hearing as procedural component; Suspension pending investigation – requirements: prima facie misconduct, objective justification to deny workplace access, and opportunity to be heard; Chirwa – does not abolish contractual remedies enforceable in civil or labour court; Separation of powers – employer must exercise independent discretion, not merely follow legislature directives.
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5 January 2009 |
