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Citation
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Judgment date
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| December 2016 |
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Reported
Where parties deliberately enter a genuine consultancy contract, courts will respect that contract and not reclassify it as employment.
Labour law – Employee v independent contractor – Characterisation of contractual relationship – effect of parties’ choice where consulting agreements are genuine. Jurisdiction – Status as a jurisdictional fact – Labour Court may determine on record before arbitrator. Public service – Constraints of state remuneration (PERSAL) may justify lawful consultancy arrangements. Sham contracts – Contracts concluded in fraudem legis unenforceable only where substance forbidden by law; mere attempt to avoid labour law does not automatically void contract.
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14 December 2016 |
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Reported
Whether the MEIBC Main Agreement bound employees despite an exclusion, given contractual incorporation and parties' conduct.
Collective bargaining — Incorporation of central bargaining council Main Agreement into plant-level collective agreement by express clause and subsequent conduct; Validity of purported cancellation of a collective agreement; Reliance on bargaining council procedures and registrations as evidence of being bound; Employer's right to implement lay-offs and short-time under incorporated Main Agreement.
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8 December 2016 |
| November 2016 |
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Reported
Reversion to a pre-FTUR post upon loss of union office is not a demotion under the collective agreement.
Collective agreement interpretation – FTUR (full-time union representative) status and reversion on termination; scope of employer obligation under clause 5.2.6.1; demotion—meaning and application; CCMA jurisdiction to interpret agreements vs. courts deciding jurisdictional facts; benefits linked to union membership.
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24 November 2016 |
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Reported
Automatic termination on objectively negative vetting did not constitute dismissal and did not unlawfully oust LRA protections.
Conditional employment – automatic termination on negative vetting – whether such termination constitutes a dismissal under the LRA; Jurisdiction – referral pleads dismissal, arbitrator may determine merits; Contracting out – sections 5(2)(b) and 5(4) LRA do not invalidate resolutive conditions that do not prevent exercise of statutory rights; Procedural fairness – opportunity to make representations where employee had not provided a version.
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22 November 2016 |
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Arbitral award set aside for failure to notify liquidator and for joining an employer without notice.
• Labour law – s191 LRA – formal notice requirement to conciliation/arbitration; audi alteram partem
• Corporate law – liquidation of close corporation – necessity to notify/substitute liquidator
• Arbitration procedure – improper mero motu joinder and imposition of joint liability without notice
• Section 197 LRA – transferee liability requires joinder/application to join
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8 November 2016 |
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Reported
Overtime after 18:00 is night work; employer must ensure transport or employee may lawfully refuse to work.
Labour law; night work – definition under bargaining council agreement and BCEA; overtime extending beyond 18:00 constitutes night work; "shift" includes overtime for transport protections; employer's obligation to ensure transport available; employee may refuse night work where protective measures lacking; reviewability of arbitrator's substantive finding.
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8 November 2016 |
| September 2016 |
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Reported
Arbitrator’s dismissal for gross insubordination was within a reasonable range; Labour Court erred in substituting sanction.
Labour law – unfair dismissal – sanction – review of arbitration award – whether dismissal for gross insubordination and insolence was within band of reasonable outcomes (Sidumo standard) – Labour Court may not substitute its own view of appropriate sanction absent unreasonableness – managerial conflict of interest and lawfulness of instruction to cease representation.
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2 September 2016 |
| August 2016 |
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Reported
Employees raised a credible s187(1)(c) automatically unfair dismissal claim; absolution was wrongly granted and trial must continue.
Labour law; absolution from instance - test for sufficiency of plaintiff’s case; s187(1)(c) LRA (automatically unfair dismissal) - initial evidential burden to raise credible possibility; conditional/lock-out dismissal debate (Fry’s Metals) noted but left undecided; procedural fairness and enquiry into substance over form.
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22 August 2016 |
| July 2016 |
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Reported
An arbitrator may not substitute his own sanction assessment where an employer’s clear disciplinary code prescribes dismissal.
Labour law – arbitration review – whether an arbitrator may substitute his own view of sanction where employer’s disciplinary policy prescribes dismissal for specified misconduct; application of Sidumo reasonableness standard. Disciplinary procedure – till discrepancies/shortages and overs – nature of misconduct; no requirement to prove dishonesty; relevance of prior disciplinary record and documentary evidence. Review – commissioner’s factual and legal errors may render award unreasonable and reviewable.
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27 July 2016 |
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Reported
Labour Court lacks jurisdiction over unfair discrimination claims not first conciliated at the CCMA; bargaining councils cannot substitute.
Employment law – Unfair discrimination disputes – Section 10 EEA requires referral to CCMA for conciliation – CCMA is exclusive conciliation forum for unfair discrimination; bargaining council has no power to conciliate under s10 – Certificate from bargaining council in unfair labour practice matter does not confer jurisdiction to adjudicate unfair discrimination claim.
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21 July 2016 |
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Reported
The Plastics Negotiating Forum was validly established and is the exclusive bargaining chamber for the plastics sector within the MEIBC.
Labour law – bargaining council membership – when admission effective – conduct and administrative communications as evidence of admission. Collective bargaining – formation of sectoral negotiating forum under bargaining council – validity of Terms of Reference adopted by subforum and ratified by MANCO. Industrial action – effect of establishing an exclusive sectoral negotiating forum on protection of strikes by unions.
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6 July 2016 |
| June 2016 |
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Reported
Certified CCMA awards are enforceable without a Labour Court writ and may be stayed by the Labour Court pending review.
Labour law — enforcement of arbitration awards — s143 LRA — certified awards enforceable 'as if' Labour Court orders (no separate writ required); monetary awards executed as if Magistrate's Court orders; non-monetary awards enforced by contempt in Labour Court; Labour Court may stay enforcement pending review.
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28 June 2016 |
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Reported
Applicant’s failure to reconstruct an incomplete arbitration record justified dismissal of the review application with costs.
Labour law – review of arbitration award – incomplete record – materiality test depends on grounds of review, nature of missing evidence and parties’ attitude; duty to take reasonable steps to retrieve or reconstruct record; importance of serving record on commissioner; discretionary remedies include dismissal, postponement or remittal.
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28 June 2016 |
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Reported
Applicant’s motion failed: foreseeable factual disputes required action and BCEA damages must be proved.
Civil procedure – motion vs action – Plascon-Evans rule – applicant must allege essential evidence; where material factual disputes are foreseeable motion is inappropriate. Labour law – dismissal/disciplines – accepting respondent’s detailed opposing averments and supporting documents on the papers. Remedies – BCEA breach of contract claims are civil damages claims requiring proof of causation and quantum; distinct from LRA statutory compensatory relief.
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28 June 2016 |
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Reported
Employees who signed membership applications remained members entitled to union representation; the appellant lacked standing to challenge membership.
Labour law — union membership — interpretation of union constitution — membership arises on application and acceptance, not on prior payment of subscriptions.* Labour law — representation in unfair dismissal proceedings — employee's right to choose union representative (CCMA Rule 25) distinguished from union's organisational rights (ss 12–14, s200).* Administrative law/labour arbitration — review of arbitrator's legal interpretation — reasonable arbitrator should not be plainly wrong; misinterpretation can amount to reviewable irregularity.
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28 June 2016 |
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Reported
A commissioner must consider a bona fide explanation and the existence of a defence before refusing rescission for absence at arbitration.
Labour law — rescission of arbitration award — good cause — need to consider both explanation for default and existence of prima facie defence — presence of witnesses indicative of bona fide intention to defend. Arbitration procedure — representation — commissioner’s duty to inquire and consider adjournment under s 138(5)(b)(ii) before proceeding in party's absence. Review — failure to deal with critical issues in reasons may vitiate exercise of discretion.
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28 June 2016 |
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Reported
Dismissal for handling VIP vouchers unfair where employer failed to prove existence, scope and communication of the rule.
Labour law – Misconduct and dismissal – Employer must prove existence, content, scope and communication of workplace rule alleged to be breached; mere handling of VIP vouchers by off‑duty employee insufficient to sustain dismissal; reasonableness of arbitrator's award reviewable; reinstatement appropriate remedy.
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15 June 2016 |
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Reported
An unsigned arbitration award served on parties is final; signature is directory and the arbitrator became functus officio; appeal dismissed.
Labour law – arbitration awards – finality – an award served on parties passes into public domain and is final. Labour Relations Act s138(7)(a) – signature requirement directory, not peremptory. Doctrine of functus officio – commissioner cannot issue materially different award after issuing a final served award. Remedies – conflict between compensation award and later reinstatement order resolved in favour of the first served award. Condonation and reinstatement – refused where appeal lacks prospects of success.
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15 June 2016 |
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A co‑respondent cannot assume an applicant’s role in motion proceedings; cancellation of a non‑exclusive distribution does not trigger s197 without an actual business transfer.
Practice and procedure — motion proceedings — co‑respondent may not, while remaining a respondent, file affidavits seeking applicant’s relief; Plascon‑Evans rule applies. Labour law — s197 LRA — cancellation of a non‑exclusive distribution agreement does not trigger transfer protections absent proof of transfer of a business as a going concern; allegations of a conspiracy insufficient without clear evidence.
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14 June 2016 |
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Reported
Arbitrator reasonably substituted dismissal with suspension and a final warning where misconduct was lesser dishonesty.
Labour law – Unfair dismissal – Sanction – Distinguishing dishonesty from truancy/failure to work diligently – Consideration of length of service and progressive discipline – Review standard: award must fall within a reasonable range (Sidumo).
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14 June 2016 |
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Reported
No prospects of success: employees’ refusal to attend a compulsory wellness launch was an unprotected strike; condonation and reinstatement refused.
Labour law – refusal to attend employer wellness launch – concerted refusal to work as strike under s 213 LRA; implied duty to obey lawful and reasonable instructions; ultimatum and opportunity to reconsider; procedural fairness of disciplinary and appeal process; condonation depends on prospects of success.
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14 June 2016 |
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Labour Court can control its processes but cannot order repayment for sheriff-induced delict or enrichment claims.
Labour law — Jurisdiction — Inherent and incidental powers of the Labour Court (s151(2), s158(1)(j) LRA) — Limited to matters within statutory jurisdiction. Constitutional law — Section 173 — superior courts' power to regulate their processes; applicability to Labour Court via s151(2) LRA. Civil procedure — Execution — sheriff’s duties, service requirements, and invalid attachment — Labour Court may stay or set aside writs but may not adjudicate distinct delict or unjustified enrichment claims arising from sheriff’s conduct. Restitution/delict — condictio indebiti/condictio sine causa claims against recipient fall outside Labour Court jurisdiction.
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14 June 2016 |
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Reported
Reinstatement is the primary remedy; employer must prove impracticability with evidence, or award is reviewable.
Labour law – unfair dismissal – reinstatement is the primary remedy under s193(2) LRA – employer must prove reinstatement "not reasonably practicable" with evidence – "not reasonably practicable" means infeasibility/absence of reasonable possibility – arbitrator's reliance on irrelevant or untested considerations is gross irregularity and reviewable.
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14 June 2016 |
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Reported
Arbitrators pervasive intervention created a reasonable apprehension of bias; award set aside and matter remitted.
Labour arbitration — s138(1) LRA — commissioners may adopt inquisitorial/adversarial approaches but must observe natural justice; reasonable apprehension of bias — objective test (reasonable, informed person); gross irregularity and unreasonableness — s145(2)(a)(ii) and review remedial powers; remedy — set aside and remit for de novo arbitration.
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13 June 2016 |
| May 2016 |
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An OSD collective agreement read with the ministerial directive permits translation based on hospital size; arbitrator’s award upheld.
Collective agreements – OSD for nurses – interpretation of translation measures; Implementation Directive and ministerial circular must be read with agreement; translation to Assistant or Deputy Manager may depend on hospital size (90‑bed threshold); review of arbitration awards – Sidumo/Herholdt standard; role of error of law in review.
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12 May 2016 |
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Reported
Arbitrator's finding of unfair dismissal and entitlement to post‑termination commissions upheld; s35(4) BCEA does not cap agreed awards.
Labour law – unfair dismissal – proportionality of sanction – Sidumo reasonableness test; Evidence – exclusion of collateral post‑dismissal conduct; Statutory jurisdiction – s74(2) BCEA permits adjudication of commission claims as remuneration; Contract and practice – no retrospective forfeiture of commission without clear contractual term or established practice; Interpretation – s35(4) BCEA is a computation aid, not a cap on agreed/prudently proven awards; Costs – unsuccessful employer ordered to pay costs.
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12 May 2016 |
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Reported
A mining right holder remains responsible for retrenchment processes and must be included in LRA consultations despite subcontracting.
Mining law – section 52(4) MPRDA – mining right holder remains responsible for implementation of retrenchment processes under the LRA even where operations are subcontracted; interplay with s189 LRA – mining right holder must be invited to consult; exclusion renders process procedurally unfair; s200B not determined as appellants failed to prove defeat of LRA purposes.
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11 May 2016 |
| April 2016 |
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Reported
Issuing a subpoena against an opposing party without first seeking discovery under rule 6(9) can constitute an abuse of process.
Labour procedure — Discovery (rule 6(9)) v subpoena duces tecum (rule 32) — Discovery is the proper pre-trial mechanism to obtain documents from an opposing party; issuing a subpoena against a party without first seeking discovery may constitute an abuse of process.
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20 April 2016 |
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Whether LLF minutes and a discretionary scarce-skills policy created a binding obligation to pay allowances.
Labour law – Collective agreements and LLF minutes – Whether LLF minute and policy constituted a binding agreement to pay allowances; statutory and contractual interpretation of discretionary workplace policies; review of arbitration awards – reasonableness, certainty and competence; remittal to arbitration – limits where issue was not pleaded.
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15 April 2016 |
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Court held invalid municipal manager's appointment does not automatically void council decisions; Oudekraal requires case-by-case assessment.
• Mootness — court discretion to decide moot or academic labour disputes when discrete legal issues of public importance and future impact arise.
• Administrative law — effect of an invalid appointment: Oudekraal principle that unlawful administrative acts may produce legal consequences until set aside; no automatic invalidation of consequential acts.
• Municipal law — distinguishing decisions of municipal council from administrative acts of a municipal manager; factual inquiry essential to legal consequences.
• Costs — adverse costs order appropriate where respondents litigate strategically and resist correction of a legal point of public importance.
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15 April 2016 |
| March 2016 |
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Reported
Section 23(1)(d) permits binding workplace-level extension of collective agreements to non-party employees where statutory criteria are met.
Labour law – s23(1)(d) LRA – extension of collective agreements to non-party employees at workplace/centralised level; definition of "workplace" (s213) – when multiple operations form single workplace; distinction between s23 and s32 (bargaining council/sectoral extension); majoritarianism and limitation of strike rights – constitutional proportionality and ILO standards; identification and binding of non-party employees under s23(1)(d).
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24 March 2016 |
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Reported
Arbitrators must objectively characterise disputes; unpaid suspension is an unfair-labour-practice, not automatically a section 24 dispute.
Labour law – Section 24 LRA – disputes about interpretation or application of collective agreements; not a catch-all for breaches. Arbitrator jurisdiction – duty to objectively characterise the real dispute; labels do not determine forum. Unfair labour practice – suspension without pay constitutes unfair suspension under section 186(2)(b). Time limits – where no period is prescribed, reasonableness is a fact-specific LRA enquiry; Prescription Act not the default yardstick.
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24 March 2016 |
