Labour Appeal Court of South Africa - 2015 June

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8 judgments

Citation	Judgment date
June 2015
TAWUSA and Others v Unitrans Fuel and Chemical Pty (Ltd) (JA 44/2013) [2015] ZALAC 15 (25 June 2015) Strike to reverse unilateral wage cuts for specific employees protected; broad wage-increase demands affecting costs fall under collective bargaining. Labour law – strike protection – interpretation of prior appellate judgment – distinction between undoing unilateral reductions (protected) and substantive wage increases affecting employer costs (subject to collective bargaining); condonation for inordinate delay in prosecution of appeal.	25 June 2015
Conti Print CC v Gladys Molokwane (JA 53/2014) [2015] ZALAC 20 (24 June 2015) Employee failed to prove constructive dismissal: employer took reasonable steps, commissioner ignored material evidence, CCMA lacked jurisdiction. Labour law – Constructive dismissal – test requiring termination by employee, intolerability of continued employment, and causation by employer – jurisdictional fact for CCMA – commissioner’s duty to weigh evidence and not ignore material contradictory testimony – review where findings irrational.	24 June 2015
CSS Tactical v SOCRAWU and Others (JA 69/14) [2015] ZALAC 16 (24 June 2015) Collective agreement did not bar a strike on company‑level demands absent proof those issues were negotiated nationally. Labour law — right to strike — limitation by collective agreement (s65(3)(a) LRA) — interpretation of Framework Agreement clause 8.5 and Memorandum clause 12 — onus on employer to show issue was negotiated nationally; inference insufficient to displace onus — stay pending CCMA not automatic where not sought below.	24 June 2015
Hudson and Another v SAA SOC Ltd (JA 84/2014) [2015] ZALAC 14 (24 June 2015) Application dismissed where genuine disputes of fact required oral evidence and applicants failed to seek it. Labour/employment — Authority to contract — Acting CEO’s authority to conclude fixed-term contracts without Board approval — internal moratorium and non-compliance with HR and procurement policies — Turquand rule and ostensible authority inapplicable absent proof — Civil procedure: Plascon-Evans/Wightman — genuine disputes of fact in motion proceedings require oral evidence or dismissal.	24 June 2015
SAMWU v SALGBC and Others (JA 56/13) [2015] ZALAC 19 (24 June 2015) s191(5) LRA triggers arbitration/right to adjudicate on either a certificate or 30‑day lapse; delayed referral required condonation. Labour law – dispute resolution – interpretation of s191(5) LRA – jurisdictional trigger either certificate of non‑resolution or lapse of 30 days; ss135/136 distinct and not applicable to s191 disputes; reasonable referral period to arbitration is 90 days; condonation required for later referrals.	24 June 2015
Shoprite Checkers v Mzolo and Others (JA 49/14) [2015] ZALAC 17 (24 June 2015) A zero‑tolerance policy does not justify dismissal for a single failure to declare low‑value goods without proportionality. Labour law – fairness of dismissal – appropriateness and proportionality of sanction for failure to declare/cancel personal goods; Zero‑tolerance policies – not absolute; must be justified by circumstances; Distinction between failure to cancel and theft; Review of CCMA awards – unreasonable outcomes removable on review.	24 June 2015
Monare v SA Tourism and Others (JA45/14) [2015] ZALAC 26 (11 June 2015) CCMA had jurisdiction; foreign office was not a separate undertaking and commissioner reasonably found dismissal substantively unfair. Labour law – territorial jurisdiction of the LRA – CCMA jurisdiction where employee serves in overseas office of South African statutory employer; Astral/Genrec Mei: foreign office must be separate and divorced undertaking to exclude LRA. Arbitration procedure – jurisdiction assessed on pleadings; mero motu jurisdictional reviews discouraged. Evidence – civil standard for fraud/dishonesty: misrepresentation, prejudice, intention; absence of unequivocal guilty plea. Review – commissioner’s factual findings and sanction within band of reasonableness.	11 June 2015
Western Plats v Hlebela and Others (JA 32/2014) [2015] ZALAC 13 (3 June 2015) Reported Non‑disclosure misconduct requires actual, deliberate knowledge of colleagues' wrongdoing; personal finances alone do not suffice. • Labour law – derivative misconduct – non‑disclosure – requires actual, subjective knowledge and deliberate silence by employee. • Duty of good faith – breach requires proof of actual knowledge of colleagues' wrongdoing, not mere suspicion or constructive knowledge. • Personal financial information is not necessarily information about criminal wrongdoing and cannot alone ground a non‑disclosure misconduct finding. • Remedy – where dismissal is substantively unfair and no credible basis for dishonesty is shown, reinstatement with back pay is appropriate.	3 June 2015