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Citation
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Judgment date
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| December 2013 |
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Reported
Health and safety measures (including breathalyser testing) are matters of mutual interest; strike action over them can be protected.
Labour law – right to strike – health and safety measures (including alcohol testing) constitute matters of mutual interest; OHSA duties do not implicitly curtail the right to strike; breathalyser testing implicates privacy and requires negotiation; employer must show that a method is the only reasonably practicable means to discharge OHSA duties.
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5 December 2013 |
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Reported
Arbitrator had jurisdiction; dismissal was an unfair sanction; LAC may, sparingly, decide unaddressed review grounds.
Labour law – jurisdiction of bargaining councils/arbitrators – true nature of dispute determined from facts not labels; arbitrator need not stop proceedings on bare allegations of union victimisation. Appeal powers – s174(b) LRA analogous to s22 Supreme Court Act – LAC may in exceptional circumstances finalize grounds of review not dealt with by Labour Court. Review standard – Sidumo reasonableness applies to sanction assessment.
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2 December 2013 |
| November 2013 |
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Reported
Commissioner’s finding on dismissal date upheld; Labour Court wrongly substituted relief and mero motu joined parties.
Labour law – arbitration awards – review – date of dismissal determined on probabilities; role of commissioner in preference of mutually destructive versions; Labour Court may not substitute arbitration relief or join parties mero motu without notice; execution of arbitration awards not automatically stayed pending review.
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21 November 2013 |
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A process-related irregularity must be assessed under the Sidumo reasonableness test; dismissal for deliberate fabrication was fair.
Labour law – review of arbitration awards – process-related irregularity (miscategorisation) not a self-standing ground for setting aside; alleged gross irregularity must be assessed against the Sidumo reasonableness test; misconduct v incapacity distinction; dismissal for deliberate fabrication and failure to follow procedure can be substantively fair.
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15 November 2013 |
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Employer failed to prove genuine retrenchment; consultation was a sham and dismissal was unfair.
Labour law – dismissal for operational requirements – employer onus to prove genuine redundancy and bona fide commercial rationale; consultation must be genuine and precede final decision (no fait accompli); sham consultation justifies employee refusal to participate; arbitrator’s award reasonable and not susceptible to review.
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13 November 2013 |
| October 2013 |
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An employer may not unilaterally substitute dismissal for a chairperson’s final sanction under a collective agreement.
Collective agreements – disciplinary procedure – clause making chairperson’s sanction final – employer’s substitution of sanction prohibited; Contractual interpretation – implied terms – duty of trust and confidence does not permit implication of a right to override express collective agreement terms; Administrative/contractual fairness – unilateral substitution without hearing breaches audi alteram partem and is ultra vires; Labour law – unfair dismissal – reinstatement where dismissal unreasonable under Sidumo standard.
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17 October 2013 |
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The appellant could not unilaterally change contractual start times; dismissals for refusal were substantively and procedurally unfair.
Labour law – jurisdiction – CCMA referrals and certificates of non-resolution; Terms and conditions – change of starting time – contractual term v work practice; Collective bargaining – unilateral variation impermissible; Procedural fairness – biased chair/caucus and sham disciplinary enquiry; Remedy – reinstatement despite delay; Interim orders – limited operative effect.
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4 October 2013 |
| September 2013 |
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The applicant's letters about widely known financial concerns were not PDA‑protected; misconduct‑based unfair‑dismissal claims require arbitration.
Labour law – Protected Disclosures Act – scope of "disclosure" and s9(2)(c) prior disclosure requirement – whether discussions with directors amounted to prior disclosure; PDA protection requires reasonably held belief and serious impropriety; employer reputation/disparagement and misconduct dismissals; jurisdiction — Labour Court may adjudicate automatically unfair dismissal under s191(5)(b) but misconduct dismissals fall to arbitration under s191(5)(a).
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12 September 2013 |
| August 2013 |
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Reported
A disputed settlement agreement cannot be made a court order; interpretation disputes belong to the CCMA, not to the Labour Court.
Labour law – section 158(1)(c) read with section 158(1A) – making settlement agreements orders of court – court’s discretion and criteria (clarity, enforceability, non‑compliance) – interpretation disputes to CCMA/bargaining council under s24(8) – s24(8) applies to agreements/awards not court orders – prescription not adjudicated when not pleaded.
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28 August 2013 |
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Reported
An employee who unreasonably refuses reasonable alternative employment cannot claim severance pay under s 41(4) BCEA.
Labour law – retrenchment for operational requirements; Basic Conditions of Employment Act s 41(2) and s 41(4) – effect of unreasonable refusal of alternative employment on entitlement to severance pay; reasonableness assessed by comparing offered terms (including announced bargaining council increases) to prior terms; overtime not an entitlement for severance calculation.
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22 August 2013 |
| July 2013 |
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Condonation refused for gross delay in filing appeal record; appeal dismissed for failure to comply with court rules.
Labour law — Condonation — Strict scrutiny in LRA individual dismissal appeals — Gross and unexplained delays in filing notice of appeal and delivering appeal record — Litigant's responsibility for attorney's default — Appeal deemed withdrawn/dismissed.
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19 July 2013 |
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Reported
Labour Court lacked jurisdiction to grant reinstatement absent statutory conciliatory/arbitral referral; relief was final, not interim.
Labour law — Jurisdiction — s191 referral to conciliation/arbitration prerequisite for adjudicating dismissal disputes; s24 procedure for collective agreement disputes — Interim relief — Interim reinstatement rarely appropriate and cannot be used to bypass statutory referral requirements — Urgency — self‑created urgency and failure to institute proceedings in proper forum — Duty to advise forum — no duty where applicant legally represented — Pleadings — substance over form when assessing interim versus final relief.
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9 July 2013 |
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Whether unreliable Netstar tracking and corroborative hearsay justified upholding the CCMA award for unfair dismissal.
Labour law – CCMA arbitration award review – Sidumo reasonableness standard – reliability of vehicle/recovery tracking (Netstar) – admissibility and weight of hearsay/corroborative letters under Law of Evidence Amendment Act and s138 LRA – substantive fairness of dismissal for ghost calling.
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9 July 2013 |
| June 2013 |
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Reported
Delay alone does not bar amendment of dismissal pleadings; automatically unfair dismissal is a species of unfair dismissal.
Labour law – amendment of pleadings – discretion to allow amendment – long delay weighed against prejudice and causation of delay – interlocutory substitution of employer – automatically unfair dismissal is a species of unfair dismissal (Driveline principle) – election and prescription are triable issues – amendment allowed and matter remitted.
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26 June 2013 |
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Reported
Placement into a newly created post without meaningful consultation and without written delegation is unlawful and reviewed under s 158(1)(h) LRA.
Labour law – unilateral change to terms – placement in a new post without meaningful consultation unlawful – review under s 158(1)(h) LRA. Public Service Act – creation of posts and appointments – power vests in executive authority (Minister); delegations must be in writing. Procedural fairness – requirement to consult before transferring or placing employees; absence of written delegation renders post creation invalid.
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11 June 2013 |
| May 2013 |
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A final interdict cannot be granted on affidavit evidence where material factual disputes and credibility issues require oral evidence.
Labour law – interlocutory and final interdicts – motion proceedings – disputes of fact and Plascon‑Evans rule – inadmissibility of credibility findings on affidavits without oral evidence – picketing rules as internal remedy – costs.
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31 May 2013 |
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Reported
Deliberate insubordination justified dismissal; prior final warnings (and their cumulative effect) may be considered under Sidumo.
Labour law – review of CCMA arbitration – Sidumo reasonableness test – insubordination – seriousness and deliberateness – prior final written warning (validity and cumulative effect) – reinstatement and twelve months' remuneration – when CCMA awards are reviewable.
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31 May 2013 |
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Reported
Expired restraint not automatically moot where contested costs create exceptional circumstances; limited interdict appropriate and no adverse costs.
Labour law – restraint of trade – reasonableness assessed by Basson/Reddy principles and Plascon‑Evans fact‑finding; mootness and exceptional circumstances (costs); limits on relief (no order to dismiss employee); costs in Labour Court governed by law and fairness; urgency rulings generally not appealable.
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30 May 2013 |
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Whether the commissioner reasonably found insufficient evidence of employee dishonesty after conflicting versions and unreliable key testimony.
Labour law – unfair dismissal – dishonesty – onus of proof – assessment of credibility, reliability and probabilities – admission and use of disciplinary enquiry minutes – review standard (reasonable decision‑maker / SFW guidelines).
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29 May 2013 |
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Interim interdict halting disciplinary proceedings set aside because respondent failed to establish a prima facie protected disclosure under the PDA.
Protected Disclosures Act — definition and scope of "disclosure" and "protected disclosure"; requirement of good faith and particularity. Interim interdict — prerequisites: prima facie right, irreparable harm, absence of alternative remedy, balance of convenience; need for sufficient particulars in affidavits. Motion proceedings — affidavits constitute pleadings and evidence; annexures and clear factual averments are required. Appealability — interim orders with immediate and substantial effect may be appealed.
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28 May 2013 |
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Reported
s158(1)(c), read with s158(1A), allows the Labour Court to make qualifying settlement agreements orders without prior referral to the Court.
Labour law – s158(1)(c) read with s158(1A) – scope of settlement agreements that Labour Court may make orders of court; "Right to refer" – wider entitlement subject to procedural prerequisites, not strict immediately exercisable right; Interaction with s142A – omission of s142A(1)-type requirement from s158(1)(c)/(1A); Judicial discretion – Court must first ensure s158(1A) criteria met and resolve factual disputes (e.g. repudiation) before making settlement an order.
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21 May 2013 |
| April 2013 |
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30 April 2013 |
| February 2013 |
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Reported
"Benefit" under section 186(2)(a) includes contractual/statutory entitlements and discretionary advantages; discretionary refusal may be unfair.
Labour law – unfair labour practice – section 186(2)(a) LRA – meaning of "benefit" – includes contractual/statutory entitlements and advantages granted by policy or practice subject to employer discretion – CCMA jurisdiction to assess fairness of employer discretion – employer’s arbitrary or inconsistent exercise of discretion can constitute an unfair labour practice.
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21 February 2013 |
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Late appeal reinstatement refused; employer failed to prove substantive fairness after conceding procedural unfairness of retrenchment.
Civil procedure – reinstatement of lapsed appeal – explanation for late filing vs prospects of success. Labour law – dismissal for operational requirements – employer's onus to prove substantive fairness where procedural unfairness conceded. Labour law – consultation requirement in retrenchment – failure to consult and misrepresentation undermines substantive fairness. Remedy – reinstatement as primary remedy for unfair dismissal; interim earnings not deductible from reinstatement award. Costs – Rule 34 tender cannot be used on appeal where not placed before court a quo for its discretion.
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21 February 2013 |
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Reported
Applicant failed to prove a common intention to continue the loco allowance; settlement provided an all‑inclusive salary—appeal dismissed.
Rectification of settlement agreement; onus on party seeking rectification to prove common intention clearly and satisfactorily; interpretation of written agreement versus extrinsic evidence; all‑inclusive salary versus locomotion allowance; improbability of double payment as factor in contractual construction.
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21 February 2013 |
| January 2013 |
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Reported
Section 197 LRA does not apply to change of franchisee where franchisor retains core assets and no going‑concern transfer.
Labour law – section 197 LRA – Transfer of contract of employment – Whether change of franchisee constitutes transfer of a business as a going concern – Franchise arrangements distinguished from outsourcing; where franchisor retains core assets and merely replaces franchisee s197 does not apply; employee-protection versus franchisor control.
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22 January 2013 |
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Reported
Whether taking other employment while suspended effects a deemed discharge under s 17(5)(a) and ousts bargaining council jurisdiction.
Labour law; Public Service Act s 17(5)(a)(i)-(ii) – deemed discharge for unauthorised absence and assumption of other employment – operation of law versus employer acceptance; jurisdiction of bargaining council to determine unfair dismissal.
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22 January 2013 |
