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Citation
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Judgment date
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| December 2015 |
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An employer cannot lawfully substitute a disciplinary chair’s final sanction; such substitution is invalid and substantively unfair.
Labour law – disciplinary procedure – where collective agreement or disciplinary code vests final sanctioning power in chair, employer may not substitute sanction; substitution without lawful authority is invalid and substantively unfair; racist workplace abuse is serious but mitigation must be considered.
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8 December 2015 |
| November 2015 |
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Arrear wage claims under reinstated contracts can prescribe three years after the reinstatement order becomes executable.
Labour law – reinstatement – effect of retrospective reinstatement on entitlement to arrear wages – distinction between judgment debt and contractual wage claims. Prescription Act s 11(d) – arrear wages as 'any other debt' subject to three-year prescription. Prescription interruption and s 15(4) – prescription runs afresh when a judgment becomes executable. BCEA s 77(3) – Labour Court's concurrent jurisdiction to determine contractual claims arising from reinstated employment. Civil procedure – Labour Court Rule 22(5) – substitution of parties; deceased employees cannot themselves apply for substitution.
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26 November 2015 |
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A clause compensating the respondent for forfeited deferred equity was a recruitment incentive and survived termination.
Contract interpretation – recruitment v retention incentive; deferred equity compensation; whether payment conditional on continued employment; survival of accrued contractual rights after rescission; Endumeni principles applied.
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17 November 2015 |
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Arbitration awards under the LRA are debts subject to a three‑year prescription; reviews do not interrupt prescription, but making an award an order of court does.
Prescription — arbitration awards under the LRA are "debts" under the Prescription Act and generally prescribe after three years; debt due on delivery of award; certification for enforcement does not delay prescription; application to make award an order of court interrupts prescription on service and must be prosecuted to final judgment; review application does not interrupt prescription; s145(9) LRA (post-1 Jan 2015) now provides interruption for later awards.
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6 November 2015 |
| October 2015 |
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Reported
Unwelcome verbal sexual advances amounted to workplace sexual harassment; dismissal was a fair sanction.
Labour law – Sexual harassment – Unwelcome verbal sexual advances outside working hours related to workplace – Single non-physical incident can constitute harassment; Codes of Good Practice and power differentials (age/gender) relevant – Sanction: dismissal may be fair where seriousness, lack of remorse and rehabilitation prospects justify it – Review: commissioner’s factual findings upheld as reasonable.
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23 October 2015 |
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A sham asset transfer cannot be treated as a lawful scheme to avoid winding‑up under s197A; appeal dismissed with costs.
Labour law – s197A LRA – transfer pursuant to scheme/compromise to avoid winding‑up – genuine purpose required; mere labelling insufficient. Company and contract law – simulated transactions/in fraudem legis – court may examine substance over form. Interpretation – whether s197A extends to non‑s311 compromises left open where sham is present.
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21 October 2015 |
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The respondent failed to show a s197 transfer because essential assets and systems were not transferred to the applicant.
Labour law – s197 LRA – transfer of business as a going concern – Spijkers/Oy Liikenne factors (assets, employees, customers, intangibles, continuity); Administrative law – Oudekraal/Kirland: administrative acts remain effectual until set aside; Burden of proof – respondent must establish on probabilities that the entity retained its identity.
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21 October 2015 |
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Reported
Senior employee's secret receipt and non‑disclosure of benefits from service providers constituted dismissible dishonesty; dismissal was fair.
Labour law – dismissal for misconduct – non‑disclosure of gifts and benefits from service providers; workplace dishonesty and breakdown of trust; procedural fairness in disciplinary hearings; review of arbitration awards – Sidumo/section 145 reasonableness and gross irregularity; employer Code of Ethics and Gifts policy – sanction of dismissal justified for serious dishonesty.
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5 October 2015 |
| August 2015 |
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Reported
Dismissal at age 64 was automatically unfair and discriminatory; single just-and-equitable solatium awarded for dignity impairment, EEA damages not proven.
Labour law – automatically unfair dismissal (age) under s187 LRA; Employment Equity Act – age discrimination under s6; Concurrent remedies – pursuing LRA and EEA claims in one action; Compensation under LRA as solatium (non‑patrimonial) v damages under EEA; Single just and equitable award to avoid double recovery; Proof of patrimonial loss required for EEA damages.
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21 August 2015 |
| July 2015 |
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Reported
Section 200A presumption requires a contract/contractual arrangement; voluntary pastoral service without contractual intent is not employment.
Labour law — jurisdiction of CCMA — who is an employee — interpretation of s200A LRA ("regardless of the form of the contract") — requirement of a contract or contractual arrangement — voluntary religious ministry versus employment.
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28 July 2015 |
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Arbitrator’s reinstatement of employee upheld where circumstantial evidence did not prove collusion.
Labour law – review of arbitration award – drawing inferences from circumstantial evidence – primary facts must be proved before inferring collusion; weight and reliability of video and polygraph evidence; standard of review in labour arbitration; reinstatement as primary remedy for unfair dismissal.
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22 July 2015 |
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Reported
Whether employees accepted an offer to retain lower wages determined fairness of their retrenchment.
Labour law – dismissal for operational requirements – whether employees accepted employer's reasonable offer to retain them at prior wage – evidentiary onus and admissibility of hearsay – relevance of contemporaneous notes and conduct in assessing acceptance/refusal.
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2 July 2015 |
| June 2015 |
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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.
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25 June 2015 |
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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.
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24 June 2015 |
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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.
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24 June 2015 |
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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.
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24 June 2015 |
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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.
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24 June 2015 |
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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.
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24 June 2015 |
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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.
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11 June 2015 |
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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.
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3 June 2015 |
| May 2015 |
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Reported
Employer's failure to advise and compassionately assist an ill employee rendered continued employment intolerable; appeal dismissed.
Labour law – constructive dismissal – employer's failure to advise on extended sick leave and treating certified sick absence as unauthorised – objective test for constructive dismissal – reasonableness review of arbitration award.
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12 May 2015 |
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Reported
A reinstatement order revives the employment contract but does not automatically entitle payment for the post-award-to-implementation period.
Labour law — reinstatement orders — effect and temporal scope; whether reinstatement entitles employee to post-award-to-implementation remuneration; enforcement — limits of writs of execution and inadvisability of registrar quantification by affidavit; contractual claim for interim wages; employer becomes judgment debtor only after adjudication.
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5 May 2015 |
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Reported
An employer may lock out employees, including non‑party union members, where a bargaining‑council deadlock affects their interests.
Labour law – Strikes and lock-outs – procedural notice requirements under s64 LRA; Motion proceedings – Plascon-Evans rule and when oral evidence is required; Bargaining councils – majoritarian principle and binding effect on non-party members (s32 extension); Lawfulness of locking-out members of a non-party union who have a material interest in the dispute.
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5 May 2015 |
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Reported
An arbitration award is published to each party when that party actually receives it; time limits are peremptory and must be proved.
Arbitration – Arbitration Act 42 of 1965 – Publication of award – where award not delivered in presence of parties, publication is when each party receives it; statutory presumption in s25(2) does not apply. Review – time limit – six weeks for review under s33(2) – computed by civil method (exclude first day); peremptory time limit requiring condonation if late. Procedure – onus to prove timely institution lies initially with applicant; assumptions of simultaneous receipt cannot be elevated to facts. Remedies – where publication date uncertain court may remit to arbitrator to deliver award in presence of parties.
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5 May 2015 |
| April 2015 |
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Reported
Whether a valid, consulted employment equity plan lawfully justified a non‑promotion under affirmative action.
Employment equity – affirmative action – existence and consultation of Employment Equity Plan – representivity and numerical goals – implementation must be rationally related to plan (Barnard; Van Heerden) – promotion decision justified where plan legitimate and applied rationally.
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24 April 2015 |
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Automatic termination clauses tied to client contracts cannot circumvent LRA protections; dismissal fair where employee refused offered alternative.
Labour brokers; automatic-termination clauses in employment contracts; validity under LRA s5 and s198 amendments; proximate-cause test for dismissal; operational-requirements retrenchment and offers of alternative employment; forfeiture of severance where alternatives unreasonably refused.
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17 April 2015 |
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Reported
Failure to consider mandatory regional demographics rendered the equity plan defective, but individual promotion remedies were not proved.
Employment equity – affirmative action v quotas – numerical targets and preferential treatment permissible under EEA s15 if flexible; quotas prohibited; s9(2) van Heerden test applied; s42 (then mandatory) requires regional and national demographics to be considered; individual remedies require specific causal evidence.
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10 April 2015 |
| March 2015 |
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Reported
An appeal to interdict a bargaining council became moot after the Minister granted the extension; appeal dismissed.
Labour law — Mootness — Interdict seeking to prevent bargaining council requesting extension of collective agreement overtaken by events. Administrative law — Proper challenge to Minister's extension under s32(3) is by direct review of the Minister's decision. Res judicata/issue estoppel — Not established; causes of action and relief in the proceedings are distinct. Discretion to decide moot cases — Refused where a comprehensive pending review addresses the same legal questions.
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26 March 2015 |
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Reported
Non-compliance with section 189A timelines does not automatically render ensuing dismissals invalid; statutory remedies apply.
Labour law – large-scale retrenchment – interpretation of section 189A(2)(a) and 189A(8) – consequence of non-compliance. Remedies for procedural non-compliance – section 189A(9) (retaliatory strike) and section 189A(13) (urgent court relief). Statutory construction – whether procedural breaches attract automatic nullity. Precedent – De Beers and Revan principle overturned.
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3 March 2015 |
| January 2015 |
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Reported
Employer failed to properly investigate alternative placement before dismissing employee for incapacity; appeal dismissed with costs.
Labour law – dismissal for incapacity – employer’s onus to prove substantive and procedural fairness – duty to investigate alternatives short of dismissal (Code of Good Practice items 10 and 11; Sick Absence Control Procedures) – admissibility and weight of internal inquiry minutes and medical evidence – remit for fresh arbitration where commissioner unreasonably ignored material evidence.
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22 January 2015 |
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Reported
CCMA may not assume jurisdiction over bargaining-council disputes without a s 147 management decision.
Labour law – CCMA jurisdiction – s 147 LRA – where dispute falls within bargaining council scope, CCMA or its delegate must decide to refer or confirm appointment before arbitration proceeds. Jurisdictional rulings by commissioners are preliminary and reviewable; commissioners may not unilaterally assume CCMA jurisdiction. Default awards are not final for purposes of s 147; rescission applications and jurisdictional decisions remain subject to review.
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15 January 2015 |
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Reported
A dispute finally determined by a bargaining council cannot later be reheard by the CCMA.
Labour law – jurisdiction – s 147(2) & (3) LRA – where dispute referred to and finally determined by a bargaining council, CCMA lacks jurisdiction to rehear; rule against collateral challenges and exceptio res judicata bar re-litigation; Labour Court obliged to decide jurisdiction mero motu.
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15 January 2015 |
