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Citation
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Judgment date
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| December 2014 |
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Reported
Owner-driver empowerment contracts were independent contractor agreements, rebutting section 200A and depriving the arbitrator of jurisdiction.
Labour law – employee v independent contractor – section 200A presumption – owner-driver empowerment scheme – jurisdiction of bargaining council – standard of review for jurisdictional findings.
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18 December 2014 |
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A contractual pro rata profit-share is a liquidated debt payable with prescribed mora interest.
Employment law – contract interpretation – profit-share clause – "pro rata portion" construed as proportion of annual 3% EBIT based on audited financial statements; Prescribed Rate of Interest Act – liquidated vs unliquidated debt – entitlement to mora interest from date amount ascertainable (or from demand under s2A); Appeal procedure – inadmissibility of belated defences and fresh evidence on appeal.
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18 December 2014 |
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Dismissal for accepting and failing to declare a supplier's favour upheld as substantively fair; Labour Court misapplied Sidumo review test.
Labour law – dismissal for breach of gifts/hospitality/favours policy – acceptance and failure to declare favour from supplier’s representative – inference of dishonesty from inconsistent explanations and non-disclosure – Sidumo review standard; Herholdt and Goldfields on reasonableness of arbitration awards – zero-tolerance policies and appropriate sanction.
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15 December 2014 |
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Expiry of a fixed-term training contract and refusal to accept employer‑determined placement do not constitute dismissal.
Labour law – fixed-term training contract – effluxion of time vs dismissal; employer's right to determine placement on permanent appointment; refusal to sign offer and repudiation; review of arbitration award on factual findings.
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12 December 2014 |
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Reported
Issue estoppel resisted on fairness; strike was refusal to bargain (unprotected) and dismissals were fair, appeal dismissed.
Labour law – strike action – distinction between wage disputes (s64(1)) and refusal-to-bargain disputes (s64(2)) – requirement for advisory award before protected strike in refusal-to-bargain matters; issue estoppel/res judicata – equity and fairness when prior interlocutory orders are relied upon to bar later unfair dismissal claims; dismissal for participation in unprotected strike – substantive and procedural fairness.
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12 December 2014 |
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Reported
Dismissal found unfair where commissioner misconceived insubordination, ignored unlawful salary deduction and failed to apply Code of Good Practice.
Labour law – dismissal for misconduct v incapacity – distinction between insolence and insubordination; unlawful unilateral deductions (BCEA s34) as provocation; Code of Good Practice – requirements before dismissal for poor performance; review of arbitration award for misconceived inquiry and unreasonable result; impermissibility of relying on reasons not advanced at dismissal.
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12 December 2014 |
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The appellant was not bound by MD102 because no contract, authority, or required approvals existed.
Management directive – alleged contract arising from meeting – proposals versus concluded agreement; early retirement affecting pension rights – interest dispute requiring recognition-agreement and pension-fund approvals; authority to bind employer – actual and ostensible authority; Turquand rule inapplicable where claimant aware internal procedures unresolved.
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10 December 2014 |
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Dismissal for operational requirements unfair where employer failed to consider alternatives (e.g. reducing contractors); reinstatement ordered.
Labour law – Retrenchment and operational requirements – Substantive fairness – Employer’s duty to consider alternatives under s189A(19) – Outsourcing/contractors – Dismissal as last resort – Objective review of employer’s rationale – Reinstatement remedy.
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10 December 2014 |
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Reported
An employee who is a union member is entitled to union representation at arbitration despite employer's objections to membership.
Labour law – right to trade-union representation at arbitration – scope of union constitution and membership – purposive interpretation of CCMA Rules and LRA – employer's late objection/involvement in conciliation.
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3 December 2014 |
| November 2014 |
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A settlement made an order of court may remain a collective agreement and is subject to LRA dispute procedures.
Settlement agreements – where made orders of court – do not automatically render all contractual terms enforceable by contempt; only clear, certain and executable provisions should be treated as court orders; collective agreements fall under LRA dispute-resolution (s24(8)); collective agreements for indefinite periods may be terminated on reasonable notice (s23(4)); courts should distinguish between orders of court and contracts.
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27 November 2014 |
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Reported
Claim for backpay after alleged post upgrade failed—no proven incumbency and arbitrator’s award unreasonable.
Unfair labour practice – promotion/upgrade – entitlement to incumbency and back pay; ministerial approval and Occupation Specific Dispensation (OSD) – effect on upgrades; dispute of right v. dispute of interest – jurisdiction to arbitrate; review for unreasonableness – award irrational where factual prerequisites for entitlement not proven.
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25 November 2014 |
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Reported
An arbitrator’s late jurisdictional ruling without allowing reply and absent an agreed stated case is reviewable and the award set aside.
Labour arbitration — procedure — stated case: parties wishing to proceed without oral evidence must agree a written stated case setting out agreed facts, legal questions and contentions
Arbitration — jurisdiction: a jurisdictional point raised for the first time in post‑hearing heads must not be decided without giving the other party an opportunity to respond
Review — section 145 LRA and constitutional administrative fairness: an arbitrator’s procedurally unfair conduct is reviewable and may lead to setting aside of an award
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6 November 2014 |
| October 2014 |
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Reported
Parity principle applied with caution; dismissal for gross dishonesty by a senior financial broker was substantively fair.
Labour law – disciplinary consistency (parity principle) – review for reasonableness under s145 LRA – gross dishonesty by senior financial representative – fiduciary duties and FAIS obligations – irreparable breakdown of trust – sanction of dismissal upheld.
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24 October 2014 |
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Reported
A deeming clause supplemented "termination of employment" for bonus purposes; the restraint was triggered by actual termination and is enforceable.
Restraint of trade; retention bonus; deeming clause; interpretation of "termination of employment"; distinguishing retention and restraint; enforcement by assignee; restraint triggered by actual termination (waiver of notice).
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23 October 2014 |
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Reported
Whether pay disputes requiring interpretation of a collective agreement fall within Labour Court jurisdiction or must be referred under the LRA.
Collective agreements – Interpretation and primacy – disputes centrally about meaning of collective agreement clauses fall under s24 of the LRA and must be referred to agreed dispute body or CCMA; BCEA s77(3) – concurrent jurisdiction does not displace LRA dispute-resolution where collective agreement interpretation is pivotal; Labour Court jurisdiction – determined from pleadings and real nature of dispute; No work, no pay – s67(3) LRA applied to full-time shop-stewards when duties cannot be performed during strike; Full-time shop-stewards – paid on fiction of performing substantive duties; entitlement to pay during strike depends on whether duties were capable of performance.
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23 October 2014 |
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Reported
Arbitrator unreasonably ignored material evidence; proper inference was that employee knowingly assisted in tampering, so dismissal confirmed.
Labour law – review of arbitration award – inferential reasoning and evaluation of all evidence and probabilities – failure to consider material evidence renders an award unreasonable; discipline – tampering with exhibits and defeating the ends of justice; procedural fairness – fitness to participate and representation; sanction – dismissal appropriate where guilt on related serious charges established.
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23 October 2014 |
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Adverse inference from employee’s refusal to answer was permissible and supported a reasonable finding of fair dismissal.
Labour law – arbitration review – alleged failure to warn of adverse inference – adverse inference from silence permitted where witness and representative understood implications; assessment of circumstantial evidence and reasonableness of dismissal on balance of probabilities; deference to commissioner’s factual findings.
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23 October 2014 |
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Reported
Authorised acceptance and communicated approval of early-retirement application meant no dismissal occurred; appeal dismissed with costs.
Labour law – application for early retirement – acceptance by authorised official – communication of acceptance – when termination occurs; constructive dismissal – burden to prove dismissal; jurisdiction of bargaining council contingent on existence of dismissal.
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23 October 2014 |
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Labour Court erred by treating review as an appeal; commissioner’s dismissal decision was a reasonable outcome on the evidence.
Labour law — Review of arbitration awards — Sidumo/HERHOLDT test — Distinction between review and appeal — Reasonableness threshold for setting aside commissioner’s award on sanction; factors relevant to fairness of dismissal (nature of misconduct, effect on employer-client relationship, prior warnings, remorse).
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21 October 2014 |
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Reported
Arbitrator’s undisclosed co‑ownership and shared premises with a contractor to the employer gave rise to reasonable apprehension of bias; proceedings voided.
Labour arbitration — review for reasonable apprehension of bias — duty of arbitrator to disclose interests or relationships with a party — two‑stage test (subjective capacity for dispassion; objective reasonable‑litigant test) — failure to disclose may cast evidentiary light on bias — where recusal was required, proceedings vitiated and full rehearing necessary.
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21 October 2014 |
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Reported
Repeated re‑charging and coercion by the employer rendered the relationship intolerable, causing constructive dismissal.
Labour law – constructive dismissal – resignation due to intolerable work environment caused by employer’s conduct – repeated disciplinary proceedings on same charge; Disciplinary procedure – fairness of second disciplinary enquiry on same allegations – only justified in exceptional circumstances; Employer culpability – repeated coercion and re‑charging can constitute repudiatory conduct.
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16 October 2014 |
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Reported
Reneging on a settlement re‑employment on prior terms constitutes dismissal and may justify compensation.
Labour law – dismissal – s186(1)(a) – re‑employment pursuant to settlement; dismissal where employer presents different terms and withdraws offer; CCMA jurisdiction; unfair dismissal – substantive and procedural fairness; remedy – reinstatement versus compensation; Kemp distinguished where post‑dismissal offers are not genuine unconditional reinstatement offers.
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7 October 2014 |
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Good cause is an independent ground for rescission of a CCMA award; commissioner and Labour Court misapplied section 144.
Labour law – Rescission of CCMA arbitration awards – Interpretation of s144 LRA – "Good cause" an independent ground for rescission. Administrative law – Review – failure to apply mind to an important principle of law (good cause) constitutes reviewable irregularity
Procedure – Test for rescission – explanation for default and prima facie prospects of success to be weighed together. Rule compliance – bona fide attorney mistake and service of postponement application may constitute good cause
Appeals – condonation for late filing where delay is not excessive and prospects of success exist
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7 October 2014 |
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Reported
Arbitrator misconceived PAM provisions on upgraded principal posts; SGB recommendation not binding and award set aside.
Labour law – unfair labour practice relating to promotion on re-grading of institution – PAM Chapter B para 2.5 and ELRC Resolution 3 – upgraded principal post treated as new vacant post – SGB recommendation permissive not binding – arbitrator’s failure to apply mind to collective agreement material leads to unreasonable outcome and reviewable award under LRA s145.
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1 October 2014 |
| September 2014 |
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Reported
The respondent may seek Labour Court review of state‑as‑employer disciplinary determinations; inadequate sanction substituted with dismissal.
Labour law – s158(1)(h) LRA – review of State‑as‑employer disciplinary decisions; Administrative law – PAJA applicability and common‑law review of contractual disciplinary tribunals; Constitutional principle of legality and rationality as grounds of review; Employer locus standi to review presiding officer’s sanction; Sanction review – irrationality and proportionality leading to substitution with dismissal.
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25 September 2014 |
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Arbitrator’s unresolved factual disputes did not render award unreasonable; SMSes ineffective, dismissal within reasonable range.
Labour law — review of arbitral awards — section 145 LRA — gross irregularity — unresolved factual disputes — reasonableness standard; escalation procedures — communication requirements — SMS versus telephone; fairness of dismissal — sanction within band of reasonable outcomes.
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10 September 2014 |
| August 2014 |
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Where mutually destructive versions exist, a commissioners award that reasonably prefers employees version and orders reinstatement will not be set aside.
Labour law - review of arbitration award - Sidumo reasonableness test; mutually destructive versions - evaluation of credibility, reliability and probabilities; picketing code and lawful picketing; substantive fairness of dismissals arising from strike conduct; reinstatement as primary remedy and proof required for breakdown of trust.
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19 August 2014 |
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Absence without permission exceeding one month triggers dismissal by operation of law under s17(5)(a)(i), ousting council jurisdiction.
Public Service Act s17(5)(a)(i) – termination by operation of law – abscondment (absence without permission exceeding one month) – effect on bargaining council jurisdiction – suspension lifted and lawful deployment.
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19 August 2014 |
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A union's locus standi can be raised at any stage, but claimants failed to prove an alleged oral overtime agreement.
Civil procedure – locus standi – point of law may be raised at any stage of proceedings. Labour law – collective bargaining – a registered union has authority to represent members in negotiations
Contract – oral agreement – plaintiff must prove date, parties and terms to avoid absolution from the instance. Absolution from instance – court may draw reasonable inferences from documentary and common‑cause facts
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19 August 2014 |
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Reported
The 90-day LRA limit applies to EEA referrals; condonation granted given explained delay and arguable prospects.
Employment Equity Act – referral to Labour Court after unsuccessful conciliation – applicability of 90-day LRA time limit; Calculation of time – runs from date of CCMA outcome certificate, not from later jurisdictional ruling at arbitration; Condonation – Melane factors (degree of lateness, explanation, prospects of success, importance) applied; Unfair discrimination under EEA – employer bears onus to prove fairness; Employment equity policy/plan – absence of plan and bare assertions of compliance do not permit dismissal at condonation stage.
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14 August 2014 |
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Reported
A new service provider’s takeover of warehousing operations using the same premises, assets and systems triggered s197 protection.
Labour Law – s197 LRA – transfer of business as a going concern – service provision change (outsourcing/retendering) – when a change of contractor triggers s197. Factors relevant to transfer – assets, premises, IT systems, continuity of activity, identity of economic entity, employees. Group companies – formal employer vs de facto employer – cannot be used to evade s197. Absence of a written contract does not bar s197 where substance shows takeover of business activity
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6 August 2014 |
| July 2014 |
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Reported
The applicant failed to prove voluntary retrenchment; respondents were automatically unfairly dismissed for union membership.
Labour law – dismissal v voluntary retrenchment – when failure to sign retrenchment agreement means dismissal; automatic unfair dismissal – dismissal for union membership (s5, s187 LRA); effect of banking retrenchment payments – waiver/acceptance; scope of pre-trial minute – issues raised in pleadings; reinstatement as primary remedy and effect of delay.
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23 July 2014 |
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Failure to apply agreed LIFO and consider bumping rendered the retrenchment substantively unfair; reinstatement ordered.
Labour law – retrenchment – selection criteria – collective retrenchment agreement binds parties; deviations require justification and written variation. LIFO and bumping – bumping is part of LIFO and must be considered/consulted on unless validly excluded. Procedural duty – employer must consult regarding bumping and justify non-application. Substantive fairness – failure to apply agreed criteria fairly renders dismissal substantively unfair
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22 July 2014 |
| June 2014 |
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Employer’s failure to process incapacity applications and excessive salary recoveries constituted constructive dismissal; reinstatement was ordered.
Labour — Constructive dismissal (s186(1)(e)) — Employer’s failure to process incapacity/retirement applications; unreasonable recovery of alleged overpayments; cumulative employer conduct rendering continued employment intolerable; reinstatement permissible where intolerable conditions no longer exist; review of arbitration award — Herholdt unreasonable‑result test.
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26 June 2014 |
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Reported
A trade union cannot be held in contempt absent clear, specific interdict obligations and proof of its own wilful breach.
Labour law – contempt of court – trade union – unprotected and violent strike – proof required to hold juristic person in contempt – distinction between vicarious liability for members' acts and direct breach by union – requirement of clear, specific interdict terms and proof beyond reasonable doubt.
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12 June 2014 |
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The applicant’s environmental disclosure to the media was protected under the PDA and NEMA and did not render the employment relationship intolerable.
Labour law – unfair dismissal – remedy – reinstatement is primary remedy; whistleblowing – protected disclosure under Protected Disclosures Act and NEMA; disclosure to media does not automatically render employment relationship intolerable; review of arbitration award where commissioner disregards material evidence.
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12 June 2014 |
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Collective bargaining cannot validate unfair age-based pay and rank discrimination; employer liable, compensation limited to equitable solatium.
Employment Equity Act – age discrimination – collective agreement cannot justify unfair discrimination; employer bears onus to prove fairness. Inherent job requirement – employer must prove age is an inherent requirement; fitness, not age, is material for pilots
Remedies under EEA – 'damages' (patrimonial loss) distinguished from 'compensation' (solatium); awards must be just and proportional. Labour Court sitting as arbitrator (s158(2)(b) LRA) – decisions are orders/judgments appealable to LAC. Unfair labour practice – improper use of accumulated leave pay to remunerate employee without consent
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12 June 2014 |
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Reported
An employer may not unilaterally define collective-agreement 'speciality' posts; arbitrator may assess fairness and order translation.
Collective agreements – interpretation and application – employer cannot unilaterally define terms absent express authority; arbitrator empowered to interpret and assess fairness. Labour law – Occupational Specific Dispensation for nurses – clause 3.2.5.3 – translation to speciality stream where nurses permanently occupy and performed speciality duties satisfactorily
Public Service Act – delegated managerial prerogative cannot override collective agreements or arbitration powers
Evidence – interdisciplinary testimony (medical specialist) admissible to determine nature of nursing functions
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5 June 2014 |
| May 2014 |
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Section 144 must include ‘good cause’; commissioners must assess explanation and prima facie defence for rescission.
Labour law – Labour Relations Act s144 – Rescission of default arbitration awards – s144 to be interpreted to include ‘good cause’ – Commissioner must consider explanation for default (reasonableness and bona fides) and prima facie defence – Binding precedent: Shoprite Checkers – Failure to consider good cause and prospects of success vitiates decision.
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30 May 2014 |
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Reported
Termination/handover that transfers assets, systems and continuity of services triggers s 197 and transfers employees to the new employer.
Labour law – s 197 LRA – transfer as going concern – substance over form; factors: transfer of tangible/intangible assets, personnel, customers and continuity of activity – holding/interim operation does not avoid s 197 – application of Aviation Union and NEHAWU tests.
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29 May 2014 |
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Reported
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27 May 2014 |
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Refusal to allow rebuttal witness to contradict a party’s own adverse witness was an unreasonable, material irregularity.
Labour law – Arbitration – material irregularity – Commissioner’s refusal to allow rebuttal evidence to contradict party’s own witness – unreasonable exercise of discretion – review under s145(2)(a)(ii) LRA – award set aside and remitted for hearing de novo.
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16 May 2014 |
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Reported
Arbitrator’s finding of managerial gross negligence upheld; late inconsistency claim refused; appeal dismissed with costs.
Arbitration review – Sidumo standard – reasonable outcomes; Managerial duty and gross negligence – obligation to exercise managerial judgment and proper monitoring; Procedural fairness – pre-hearing minute limits scope; Late introduction of new grounds (inconsistency) may be refused where prejudicial; Inconsistency defence requires comparable misconduct and roles; Appeal cannot raise new grounds not argued in review court.
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15 May 2014 |
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Reported
Polygraph results alone, without expert validation, are insufficient to prove misconduct; reinstatement accordingly appropriate.
Labour law – unfair dismissal – onus to prove misconduct on a balance of probabilities – circumstantial evidence must point to the most probable inference
Evidence – polygraph tests – not self-sufficient; require expert evidence to establish conceptual cogency and accurate application before being given substantive weight
Remedy – reinstatement is primary; intolerability/impracticability to displace reinstatement demands high threshold
Review – whether arbitrator’s outcome was one a reasonable arbitrator could not reach
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13 May 2014 |
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Reported
Employer's failure to prevent landlord excluding pregnant employees amounted to repudiation and an automatically unfair dismissal.
Labour law; dismissal — denial of workplace access by landlord security; employer's duty to accept tender of services; repudiation of employment contract; pregnancy discrimination; s187(1)(e) LRA; unenforceability of landlord-imposed discriminatory code where employee not bound.
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13 May 2014 |
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The applicant's unexplained refusal to reinstate deemed-dismissed employees was irrational and unlawful.
Public Service Act s17(3)(a)(i) deemed dismissal; s17(3)(b) discretionary reinstatement — reviewable under s158(1)(h) LRA on principle of legality; requirement of rationality and provision of reasons; condonation for delay where explanations satisfactory; medical incapacity may constitute good cause for reinstatement.
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13 May 2014 |
| March 2014 |
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Reported
Arbitrator’s failure to consider material evidence rendered reinstatement unreasonable; dismissal for dishonesty upheld on review.
Labour law – dismissal for dishonesty – substantive fairness – use of indicia (e‑mails, experience, timing, admissions) to infer knowledge and intent. Arbitration awards – review – commissioner’s failure to take into account matters of great significance – award unreasonable and reviewable
Procedural – condonation for late filing and non‑compliance with court rules
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27 March 2014 |
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Reported
Labour Court lacked jurisdiction to join employers not conciliated as required by section 191 of the LRA.
Labour law – s191 LRA – statutory conciliation prerequisite for dismissal disputes; jurisdictional consequence of non‑conciliation; Labour Court Rules cannot override statutory preconditions; joinder (Rule 22(2)(a)) – requirement of a direct and substantial interest; condonation for late referral and failure to review refusal.
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26 March 2014 |
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Labour Court lacks jurisdiction where the applicant expressly denies being an employee.
Labour Court jurisdiction – s157 LRA – limits to disputes for which LRA provides remedies – Gcaba interpretation; non-employee disputes outside Labour Court jurisdiction; arbitration clause and jurisdictional questions; professional footballer registration and validity of power of attorney; McCarthy distinguished.
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12 March 2014 |
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Reported
An unsigned drafting‑team draft cannot bind parties where the constitution requires formal committee decision and signatures.
Collective agreements – formation – whether informal drafting‑team decisions bind parties where constitution prescribes formal bargaining‑committee decision and signatures; Practice and custom – cannot override clear constitutional requirements without evidence of well‑entrenched practice; Rectification – requires proof of prior concluded agreement/common intention and that written record fails to reflect it; Signature/formality – parties’ conduct treating signature as constitutive of binding agreement is decisive.
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4 March 2014 |
