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Citation
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Judgment date
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| December 2011 |
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Reported
The respondent may pursue an EEA discrimination claim despite earlier LRA unfair‑dismissal arbitration.
Res judicata — idem actor, idem reus, eadem res, eadem causa petendi — distinction between unfair dismissal under LRA and unfair discrimination under EEA; arbitration award on early termination does not bar subsequent EEA appointment discrimination claim.
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7 December 2011 |
| November 2011 |
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Reported
A purposive, fairness-based interpretation may include shift rest days as "working days" for calculating annual leave.
Labour law – Bargaining council arbitration – Review under s145 LRA – Interpretation of collective agreement – Meaning of "working day" for shift-workers' annual leave – Purposive interpretation and fairness/equity considerations permissible – Reasonableness standard (Sidumo; CUSA).
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29 November 2011 |
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Reported
A reasonable expectation of permanent employment does not amount to dismissal under s186(1)(b) for non-renewal of fixed-term contracts.
Labour law – s186(1)(b) LRA – reasonable expectation – whether expectation of permanent (indefinite) employment falls within "renewal of a fixed-term contract" – interpretation of statutory wording and jurisdiction of CCMA.
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4 November 2011 |
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Reported
A clarified transport-allowance demand not covered by the collective-agreement prohibition, and statutory s64 compliance yielded a protected strike; appeal dismissed.
Labour law – collective agreements – effect of 'no further claims' clause (A.8.3) on permissible demands – distinction between impermissible substantive wage claims and permissible company-level proposals. Labour law – strikes – interplay between collective-agreement pre-strike procedures and statutory section 64 procedure; compliance with either can produce a protected strike. Collective bargaining – facilitation and arbitration for allegations of bad faith do not necessarily preclude strike action where dispute is otherwise unregulated. Interim relief – employer must establish prima facie right to interdict; failure where union complied with s64 and demand not covered by prohibition.
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2 November 2011 |
| October 2011 |
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Reported
Placement Committee consensus under a collective agreement binds union members; individual employees may not unilaterally refer placements to arbitration.
Collective agreement – placement policy – interpretation of "parties" in dispute procedure – Placement Committee consensus binding on union members – arbitration only where Placement Committee fails to reach agreement – collective bargaining principle.
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28 October 2011 |
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Reinstatement is the primary remedy for unfair dismissal but back pay may be limited where reinstatement unduly burdens the employer.
Labour law – Unfair dismissal – Reinstatement is the primary remedy under section 193 LRA – Court must exercise discretion on retrospectivity fairly balancing employer's financial capacity and employee's loss – Employer should lead evidence on impracticability but court may consider relevant factors on record – Delay does not automatically preclude retrospective reinstatement.
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25 October 2011 |
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Reported
Repeated unwelcome sexual propositions by a senior manager constituted sexual harassment; commissioner’s narrow inquiry was unreasonable.
Labour law – unfair dismissal – sexual harassment – definition: "unwelcome conduct of a sexual nature" – repeated unwelcome conduct despite being declined suffices. Procedural fairness – commissioner’s duties – failure to take material facts into account and unduly narrowing the inquiry renders award unreasonable under Sidumo. Evidence – similar-fact evidence – exceptional admissibility to show pattern and sanction; exclusion may be reviewable irregularity. Sanction – senior manager’s persistent propositions to subordinate may justify dismissal.
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20 October 2011 |
| September 2011 |
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Reported
Dismissal for wearing dreadlocks was automatically unfair as discriminatory on grounds of religion, culture and gender.
Labour law – automatically unfair dismissal – section 187(1)(f) LRA – Dress Code prohibiting "Rasta man" hairstyles – direct and indirect discrimination on grounds of religion, culture and gender – objective causation – justification and reasonable accommodation – inherent job requirement (s187(2)(a)) – procedural: cross-appeal not required to uphold alternate grounds.
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27 September 2011 |
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Employer must prove criminal misconduct under Regulation 18(3) on a balance of probabilities; private defence can render dismissal unfair.
Labour law – review of bargaining‑council arbitration – Sidumo reasonableness test; Police discipline – Regulation 18(3) (act constituting an offence) requires employer to prove criminality on balance of probabilities; private defence and putative private defence – application and onus in disciplinary proceedings.
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26 September 2011 |
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Reported
Dismissal based on unproven immigration suspicion was procedurally and substantively unfair; reinstatement substituted with twelve months' compensation.
Labour law – Unfair dismissal – Procedural fairness – necessity of disciplinary enquiry before dismissal based on alleged illegal immigration; Immigration law interaction – suspicion by immigration officer and High Court remarks do not equate to statutory declaration or deportation order; Review – Sidumo reasonableness standard; Remedy – reinstatement vs compensation where trust relationship irretrievably broken; Maximum compensation (12 months) under section 194(1) LRA.
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15 September 2011 |
| August 2011 |
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Reported
Appeal dismissed as moot; Court declined to decide whether s64(4)/(5) LRA permits interdictory relief for unilateral roster changes.
Labour law – unilateral variation of terms and conditions – shift rostering and increased hours – allegation of unilateral change under s64(4) LRA. Mootness – courts should not decide abstract or academic disputes; requires a live controversy with practical effect. Remedy – whether Labour Court may grant interdictory relief under ss64(4) and 64(5) LRA (declined to decide due to mootness).
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25 August 2011 |
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Reported
Articulating an additional demand during a protected strike does not automatically render the strike unprotected; summary dismissals were automatically unfair.
Labour law – protected strike – whether introduction during strike of a new demand not referred to conciliation converts protected strike into unprotected strike. Labour law – automatically unfair dismissal – section 187(1)(a) LRA – summary dismissal for participation in protected strike. Procedural fairness – employer's duty to consult union and afford reasonable time before treating a strike as unprotected and dismissing employees. Remedial discretion – assessment of just and equitable compensation for automatically unfair dismissal under section 194(3) LRA.
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3 August 2011 |
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Reported
Employer’s dismissal for material falsehood in CV upheld where commissioner failed to properly evaluate evidence.
Labour law – review of arbitration award – commissioner’s failure to evaluate evidence – decision a reasonable decision‑maker could not reach; Misrepresentation in job application – materiality of false qualification – dismissal fair; Condonation – delay caused by former attorneys – interest of justice may justify reinstatement of appeal.
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3 August 2011 |
| July 2011 |
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Reported
A commissioner’s unreasonable acceptance of implausible CCTV explanations made the arbitration award reviewable and dismissal fair.
Labour law – review of CCMA arbitration award – reasonableness standard (Sidumo) – whether commissioner’s findings were ones a reasonable decision‑maker could not reach. Evidence – CCTV/DVD footage as prima facie proof of concealment – shifting evidential burden to employee to give credible exculpatory explanation (Federal Cold Storage principle). Procedural fairness – review grounds include commissioner’s gross irregularity or unreasonable factual findings under s145 LRA. Sanction – relevance of long service and clean record when misconduct involves gross dishonesty.
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26 July 2011 |
| June 2011 |
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Reported
Dismissal for applicant's derogatory remarks was disproportionate; award set aside and applicant reinstated.
Disciplinary procedure – time limits in departmental code – whether clause 7.4 creates an absolute bar; Misconduct – misuse of state vehicle; failure to return vehicle; absence without leave; indecent/derogatory remarks to supervisor; Fairness of sanction – proportionality of dismissal for intemperate remarks; Review – arbitral award unreasonable where commissioner misdirected on nature/seriousness of offence.
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29 June 2011 |
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Reported
Retrenchment without a negotiated s189 consultation procedure was procedurally unfair despite a later recognition agreement.
Collective bargaining; recognition agreement — does not automatically discharge s189 consultation obligations where no retrenchment procedure negotiated; section 189(1) consultation hierarchy; effect of existing collective agreement; procedural fairness of retrenchment and re-employment on inferior terms.
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20 June 2011 |
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Reported
Condonation for late reconstruction of arbitration record refused for inadequate explanation and poor prospects of success.
Labour law – Condonation for late filing of reconstructed arbitration record – Application of ordinary condonation principles – Adequacy of explanation for delay – Prospects of success on review – Hearsay evidence and failure to call private investigator – Arbitration award made an order of the Labour Court (s158(1)(c) LRA).
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6 June 2011 |
| May 2011 |
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Reported
An appeal does not automatically suspend a registrar's deregistration; suspension requires judicially exercised balancing of competing interests.
Labour law – deregistration of trade unions – section 106 LRA – effect of noting an appeal on execution of deregistration decision – no automatic suspension for administrative deregistration; discretionary stay required. Procedure – Rule 11(3)/(4) Labour Court Rules – courts empowered to adopt procedures to determine suspension pending appeal. Interim relief – factors: prejudice, prospects of success, public interest in protecting members and union funds, frivolous/vexatious appeals.
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30 May 2011 |
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Reported
Arbitration awarding reinstatement for non-renewal of fixed-term contract was reasonable; Labour Court erred in setting it aside for non-joinder.
Labour law – fixed-term contracts – dismissal by non-renewal – reasonable/legitimate expectation to renew; Review – non-joinder not a ground where proposed party had no direct and substantial interest; Administrative law – Sidumo reasonableness standard applied; Immigration Act (s19(2)) does not preclude formation of legitimate expectation to re-employment where work permit previously granted.
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13 May 2011 |
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An unprotected strike does not automatically justify dismissal; employer unlawful pay deductions and mitigating factors may render dismissal unfair.
• Labour law – strike – statutory definition under s213 – concerted refusal to work to obtain redress qualifies as a strike.
• Labour law – protected vs unprotected strike – non‑compliance with s64 renders strike unprotected but does not automatically justify dismissal.
• Code of Good Practice (Schedule 8), item 6(1) – factors to consider when assessing fairness of dismissal for participation in unprotected strike.
• Review standard – Sidumo: award must be one a reasonable decision‑maker could have reached; failure to weigh relevant mitigating factors renders award unreasonable.
• Employer conduct – unilateral unlawful deduction of wages is a significant mitigating factor against dismissal.
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1 May 2011 |
| April 2011 |
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Reported
Under s197A an insolvent employer's going‑concern transfer substitutes the new employer in existing employment contracts, including reinstatement obligations.
Labour law — transfer of business as a going concern; section 197A — transfer in insolvency; automatic substitution of new employer for contracts existing immediately before provisional winding‑up; survival and effect of reinstatement orders; new employer's liability for post‑transfer remuneration but not prior wrongful acts.
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18 April 2011 |
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Commissioner’s arbitration upheld: dismissal for dishonest misuse of salary and bonuses was procedurally and substantively fair.
Labour law – arbitration award – review under s145 LRA – allegations of commissioner misconduct, gross irregularity and bias – standard of review: reasonableness. Employment law – disciplinary procedure – deviations from internal code, denial of internal appeal, presence of director and legal advice – procedural fairness and prejudice. Employment law – substantive misconduct – unauthorised salary increases, undeclared duplicate bonuses, manipulation of overpayments and misrepresentation. Fiduciary duties – senior employee/director’s duty of loyalty and breach of trust as basis for dismissal.
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1 April 2011 |
| March 2011 |
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Reported
A one‑day secondary strike excluding essential services was held reasonable and protected under s 66(2)(c), appeal dismissed.
Labour law – Secondary strikes – s 66(2)(c) – proportionality test: reasonableness of nature and extent of secondary strike weighed against possible direct or indirect effect on primary employer’s business. No requirement that secondary employer must be able to influence primary employer. Possible (not actual) harm suffices. One‑day strike excluding essential services held reasonable and protected.
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29 March 2011 |
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The applicant's dismissal application succeeded due to the respondent's inordinate delay and inadequate explanation.
Labour law – dismissal of referral for inordinate delay; delay in prosecution; adequacy of explanation (departure of officials; lack of records); factors for striking out/dismissal (length, explanation, prejudice); condonation unnecessary once dismissal granted; costs awarded to applicant for dismissal application.
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22 March 2011 |
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Reported
A common mistake about expanding judicial review did not void the arbitration submission; an isolated arbitrator misconduct did not overturn the award.
Arbitration law – validity of submission to private arbitration – common error/supposition – materiality and severability of mistaken clause; Arbitration review – limits of parties' ability to contractually expand judicial review – courts apply statutory grounds (s33) not bespoke "rational and justifiable" standard; Procedural fairness – arbitrator misconduct for failing to apply mind to particular charge – partial defect but award separable; Remittal – discretionary refusal where remittal would cause prejudice/delay and not alter substantive outcome.
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9 March 2011 |
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Applicant failed to prove contempt or unfair suspension; suspension upheld due to ongoing investigation and nondisclosure.
Labour law – urgent relief – requirements for setting aside suspension; Contempt of court – construction of court records and enforceability of agreements; Protected disclosures – employer’s right to investigate and employee’s obligation to use appropriate channels; Perjury allegations – insufficiency of affidavit evidence; Employment restructuring – remedies for failure to secure an agreed post.
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1 March 2011 |
