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Citation
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Judgment date
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| December 2017 |
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Reported
Section 189A(13) is an urgent supervisory remedy; (13)(d) is residual and late condonation was unjustified.
Labour law – section 189A(13) – urgent supervisory remedy to oversee ongoing large-scale retrenchments; remedies (a)–(c) preferred; (13)(d) residual and not standalone; condonation for late s189A(13) applications not justified by prior reliance on now-overruled case law or by abandonment of procedural-unfairness causes; Parkinson and Clinix applied.
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18 December 2017 |
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Reported
An unfair dismissal dispute (s191), not a collective agreement dispute (s24), justified confirming the arbitrator’s award under Sidumo.
Labour law – unfair dismissal – dispute classification: unfair dismissal under s191 v collective agreement dispute under s24; Procedural fairness – need for pre‑dismissal enquiry where hearing rendered impossible; Substantive fairness – credibility findings and weight of evidence; Review standard – Sidumo: whether outcome no reasonable arbitrator could reach; Discretionary remedy – just and equitable compensation under s194 and when denial of compensation is appropriate.
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18 December 2017 |
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Reported
An applicant who accepts and performs a substitute contract cannot later seek specific performance of the cancelled original contract.
Labour procedure – absolution from the instance; Contract law – repudiation and election of remedies; Specific performance versus damages; Reservation of rights ineffective where claimant accepted and performed a substitute contract; Pleading requirement to seek alternative damages if specific performance may fail.
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18 December 2017 |
| November 2017 |
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Reported
Post‑dismissal behaviour at arbitration cannot, absent impact on job functionality, justify denying reinstatement under section 193 LRA.
Labour law – section 193 LRA – primary remedy of reinstatement – scope of section 193(2)(b) excludes post‑dismissal conduct at arbitration; subsection (c) requires assessment against the functional operational requirements of the job – post‑arbitration misconduct that does not impair job performance does not make reinstatement impracticable.
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1 November 2017 |
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Reported
Minister’s failure to consult the National Skills Authority rendered the 2012 SETA Grant Regulations invalid.
Administrative law – statutory consultation – Skills Development Act s36 – consultation with National Skills Authority mandatory; NEDLAC distinct from Authority and cannot substitute for consultation; jurisdictional fact – absence of consultation vitiates subordinate legislation; standing of interest groups to challenge failure to consult; review and setting aside of regulation imposing "sweeping mechanism."
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1 November 2017 |
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Reported
Minister not a necessary party to individual OSD implementation dispute; appeal dismissed with costs.
Labour law – Joinder – non-joinder – whether Minister is a necessary or affected party to arbitration about individual implementation of an Occupation Specific Dispensation (OSD) – Public Service Act (sections 3(5), 3(6), 5(6)) – Minister’s role ancillary (determinations, advice, directives) – dispute between employer (MEC) and employee – s144(a) LRA rescission not engaged. |
1 November 2017 |
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Reported
Employer’s post-absence acceptance of services amounts to implicit reinstatement, rendering later refusal to reinstate unlawful.
Public Service Act s17(3)(a)(i) and (b) – deemed dismissal by operation of law – reinstatement by executive authority – review under s158(1)(h) LRA – principle of legality – implicit reinstatement by acceptance of services and payment – unlawfulness, irrationality, and appropriate remedy (retrospective reinstatement and back pay).
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1 November 2017 |
| October 2017 |
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An arbitration award in favour of an employee had not prescribed; review proceedings suspend or otherwise prevent prescription.
Labour law; prescription — interaction between Prescription Act s15 and LRA; whether review proceedings or an application to make an arbitration award an order of court interrupt prescription; enforceability of arbitration awards; effect of Myathaza and Mogaila.
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6 October 2017 |
| September 2017 |
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Reported
The respondent’s dismissal of the applicant’s members for a brief, unprotected strike was procedurally and substantively unfair.
Labour law — Unprotected strike; proportionality of dismissal for short‑duration strike; duty to issue ultimatum and afford individual representations; consistency of disciplinary sanctions; procedural and substantive fairness in strike dismissals.
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26 September 2017 |
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Reported
s189A procedural relief is temporary; dismissal substantively unfair for failing to consider reasonable alternatives, compensation awarded.
Labour law – s189A procedural relief – s189A(13) allows early judicial intervention to correct procedural flaws; reinstatement for procedural unfairness is temporary pending fair procedure compliance. Substantive fairness under s189A(19) requires (a) legitimate operational need, (b) operationally rational justification, (c) proper consideration of alternatives, and (d) fair selection criteria; failure to consider reasonable alternatives renders dismissals substantively unfair. Remedy: where posts are redundant, compensation (here 12 months’ pay) appropriate.
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19 September 2017 |
| August 2017 |
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Reported
Ancillary duties created solely by a cancelled collective agreement cease on cancellation and refusal to perform is not a strike.
Collective agreements – ancillary duties created by a separate collective (Guard Fee) agreement – cancellation on notice; incorporation of collective terms into individual contracts; strike law – refusal to perform duties post-cancellation not unprotected strike; employer payment obligation tied to collective agreement.
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1 August 2017 |
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A review court may validly set aside a CCMA jurisdictional ruling based on the record before the commissioner; s175 relief was refused.
Labour law – CCMA jurisdiction – review of commissioner’s jurisdictional ruling – review court considers record before commissioner when ruling was made. Civil procedure – competence/nullity of judicial orders – whether an order reviewing an arbitration jurisdiction ruling is null where related proceedings were withdrawn. Labour Relations Act s175 – circumstances in which Labour Appeal Court may sit as court of first instance to determine rescission applications. Lis pendens – effect on CCMA jurisdiction and status of referrals after court review.
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1 August 2017 |
| June 2017 |
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Reported
Employee not deemed dismissed where employer knew of and accepted medical leave; reinstated retrospectively.
Public Service Act s 17(3)(a) – deemed dismissal – requires absence without permission or knowledge of employer for over one calendar month. Deemed dismissal – jurisdictional precondition – employer’s knowledge and acceptance of medical leave negates deemed dismissal. Administrative silence – failure to respond to reinstatement representations does not automatically amount to a reviewable decision refusing reinstatement where deeming requirements are unmet. Labour procedure – review under s 158(1)(h) LRA – existence of a reviewable decision is a precondition to review.
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13 June 2017 |
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Reported
CCMA has jurisdiction where employees pleaded an unfair dismissal despite asserting the dismissal was invalid under a collective agreement.
Labour law – jurisdiction of CCMA – determined by pleaded referral; dismissal under s186 LRA includes terminations contrary to collective agreements; election of LRA remedies prevents later abandoning claim to assert no dismissal.
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13 June 2017 |
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Reported
Arbitrators lack power to declare a dismissal void and order reinstatement; clause 6.3 runs from when authorised official knows misconduct and identity.
Labour law – collective agreement disciplinary time-limits (SALGBC clause 6.3) – meaning of ‘became aware’ and ‘proceed forthwith’; Arbitration jurisdiction – arbitrator cannot declare a dismissal void and order reinstatement where that would negate the existence of a dismissal; Procedural fairness – disciplinary inquiry proceeds when charges are furnished to the employee.
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13 June 2017 |
| May 2017 |
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Reported
A reviewing court must apply the Sidumo reasonable-decision-maker test and not substitute its own view for an arbitrator's.
Labour law – Review of CCMA arbitration award – Proper review test: whether a reasonable arbitrator could have reached the decision (Sidumo); avoid conflation of review and appeal; Dismissal for gross dishonesty – assessment on probabilities and bank evidence; Failure to notify directors may be negligence but not necessarily gross dishonesty; Compensation – whether award is capricious or unreasonable on review.
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31 May 2017 |
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Reported
A retrenchment settlement with majority unions can be a collective agreement extendable to non‑party employees under s23(1)(d).
Collective agreements – retrenchment/settlement agreements – matters of mutual interest – s 213 LRA; Extension to non‑parties – s 23(1)(d) LRA; Majoritarianism – policy choice underpinning s 23 and s 189/189A; Consultation under s 189/189A – facilitated single‑forum processes; Constitutional right to fair labour practice – limitation and justification; Review/setting aside – legality and sufficiency of consultation evidence.
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31 May 2017 |
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Reported
Section 20 permits valid collective agreements granting limited organisational rights to minority unions despite an existing s18(1) threshold.
Labour law – Organisational rights – Interaction of s18(1) thresholds and s20 collective agreements; majoritarianism vs minority union rights; ss12 and 13 (workplace access and stop-order deductions); representation in disciplinary/grievance proceedings; Bader Bop authority; international freedom of association standards.
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31 May 2017 |
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Reported
Arbitrator's failure to independently assess credibility and evidence rendered award unreasonable; dismissal for racial slur found fair.
Labour law – arbitration review – Sidumo and Gold Fields review standard; Credibility assessment – arbitrator's duty to independently evaluate witness credibility, bias and probabilities; Racial discrimination – use of the word "kaffir" objectively derogatory but employer must prove utterance; Evidence – improper reliance on internal appeal findings and disputed documentary registers may render award unreasonable.
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25 May 2017 |
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Reported
Minister’s appointment of an administrator must satisfy s15 statutory preconditions and the constitutional principle of legality.
Administrative law; Skills Development Act s15(1) – appointment of administrator – principle of legality – requirement to act strictly within statutory preconditions; PAJA review – authorisation and rational connection; Auditor‑General qualified opinions – limited scope (discretionary grant commitments) insufficient to justify administration; failure to consider SETA’s remedial responses and management report; withdrawal from programme not shown to fall within s15(1) grounds.
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16 May 2017 |
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Reported
A refusal to renew a fixed‑term employment contract based on alleged legitimate expectation is a dismissal under s186(1)(b) LRA.
Labour law – Fixed‑term contract – Refusal to renew – Legitimate expectation based on selection panel recommendation – constitutes "dismissal" under s186(1)(b) LRA and falls within CCMA/LRA jurisdiction. Jurisdiction – Characterisation of dispute determined from pleadings/affidavits; forum shopping to avoid labour fora impermissible. Administrative law – PAJA not applicable to a "pure" labour dispute over non‑renewal of fixed‑term contract. Interim relief – Requirements for final interdict (clear right, imminent irreparable harm, no alternative remedy) not established.
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16 May 2017 |
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Reported
An arbitrator may reinstate the respondent without back pay where dismissal is disproportionate under Sidumo and facts are individualized.
Labour law – Review of arbitration award – Sidumo reasonableness standard – appropriateness of sanction and reinstatement without back pay. Misconduct – differentiation between dishonesty and governance breaches (unauthorised storage, failure to follow procurement procedure, private use of company laptop). Remedies – reinstatement as primary remedy unless continued employment is intolerable; individualized assessment of sanction. Review – alleged factual errors or procedural irregularities do not warrant setting aside an award unless they materially affect the outcome.
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3 May 2017 |
| March 2017 |
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Reported
Section 197(5) binds a new employer to arbitration awards that bound the old employer immediately before transfer.
Labour law – s 197 LRA – transfer of business as a going concern – effect of arbitration awards on new employer – applicability where arbitration award was set aside and substituted post-transfer.* Labour law – joinder/interpleader – new employer’s right to be heard before attachment – procedural protections do not override s 197(5) statutory effect.* Purpose of s 197 – protection of employees’ rights on transfer of undertaking.
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23 March 2017 |
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Reported
Whether a proposed trade union name and acronym so closely resemble an existing union’s name as to cause confusion under s95(4).
Labour law – Registration of trade unions – s95(1), s95(4) and s111(3) LRA – whether proposed union is genuine – whether proposed name/acronym so closely resembles an existing union as to mislead or cause confusion – comparative factors: overall impression, sense, sound, appearance, context, reputation and likelihood of misleading a notional reasonable person (Motor Industries; Plascon-Evans).
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22 March 2017 |
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Reported
The applicant (employer) was liable under s 60 EEA for failing to prevent and properly address a manager’s sexual harassment of the respondent.
Employment Equity Act s 60 – employer liability where employee’s conduct contravenes Act – obligations to report, consult relevant parties, eliminate conduct and take reasonably practicable preventative measures. Sexual harassment – defined as unwelcome sexual conduct constituting unfair discrimination; employer’s duty to investigate and take protective steps on notice. Procedural and evidentiary issues – credibility findings; meaning of "immediately" in s 60(1); distinction between s 60(2) remedial steps and s 60(4) preventative measures.
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7 March 2017 |
| February 2017 |
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Reported
Reconstructed record permitted appeal; employees found to have deserted but dismissal was disproportionate, compensation awarded.
Labour law – adequacy of reconstructed arbitration record – pragmatic approach where parties have reconstructed and long delay militates against remittal; Review – unreasonableness/perversity of factual findings – award set aside where contemporaneous documents and probabilities render arbitrator's conclusion untenable; Misconduct and sanction – desertion established but dismissal disproportionate given mitigating circumstances; Compensation – award in lieu of reinstatement where reinstatement not sought or appropriate.
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28 February 2017 |
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A court order imposing a deadline to "prove" representativity does not preclude later factual adjudication of whether the deadline was met.
Labour law – recognition agreements – court consent order imposing a resolutive condition as to representativity – such an order does not preclude subsequent factual disputes about whether the condition was met. Dispute referral – arbitrator’s duty – commissioner not bound by parties’ labels; must determine the true nature and substance of the dispute. Jurisdiction – res judicata/previous court order – where order sets a deadline subject to proof, later factual inquiries about fulfillment fall within CCMA competence.
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28 February 2017 |
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Reported
Appeal succeeds: exceptional circumstances (fixed‑term contract issue, onerous DRC fees/delay) warranted Labour Court hearing.
Labour law – jurisdiction – stay of court proceedings in favour of contractual dispute resolution clauses – exceptional circumstances required to refuse arbitration; Fixed-term employment – retrenchment for operational requirements – relevance to forum selection (Buthelezi principle); Arbitration procedure – 30‑day referral rule, multi-stage appeals and substantial fees as potential grounds for exceptional circumstances; Standard of appellate interference with lower court discretion to stay litigation.
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21 February 2017 |
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Reported
Whether an employer must hold a disciplinary hearing when repeated reasonable attempts to contact an absent employee fail.
Employment law – Breach of contract and relief of specific performance (reinstatement) – applicability of internal Disciplinary Code – requirement for disciplinary hearing where employee absent – reasonable attempts to notify employee and dismissal for abscondment. Procedure – motion proceedings – acceptance of respondent’s version where genuine disputes of fact cannot be resolved on affidavits. Jurisdiction – BCEA contractual claim versus LRA unfair dismissal forum choice.
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16 February 2017 |
| January 2017 |
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Reported
Event‑triggered fixed‑term contract termination is not automatically a dismissal unless used to evade LRA protections.
Labour law – fixed‑term/eventuality contracts – automatic termination clause – proximate cause of termination – dismissal under s186(1) – s5 LRA protection against contracting out – validity depends on context and whether clause is used to evade statutory rights – jurisdictional review of arbitration awards.
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25 January 2017 |
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Reported
Minister’s revocation of registrar designation was administrative action, irrational and procedurally unfair; reinstatement ordered.
Administrative law — PAJA — whether revocation of statutory designation of Registrar of Labour Relations is "administrative action" — statutory source, public impact and adverse effect on incumbent — PAJA applicable; alternatively reviewable under principle of legality — failure to take into account material ministerial submission — decision irrational and procedurally unfair — reinstatement appropriate.
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25 January 2017 |
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Reported
Practice Manual governs archiving; archived files may be retrieved where good cause and excusable delay are shown.
Labour Court Practice Manual – binding effect – enforces Rules and Labour Relations Act; court retains discretion Archiving – Practice Manual Clauses 11.2.7 and 16 – when files lapse and procedure for retrieval Retrieval of archived file – application under Rule 7 requires showing good cause/condonation (bona fides, full explanation, prospects of success, interest of justice) Delay excusable where record preparation hampered by CCMA; court must weigh cause of delay, prejudice and prospects of success
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25 January 2017 |
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Reported
A written settlement under s158(1)(c) read with s158(1A) was valid and the Labour Court’s order was upheld.
Labour law – Settlement agreements – s158(1)(c) of LRA – s158(1A) elaboration – distinction from s142A(1) – validity of written settlement reached during s189 consultations – effect of later retrospective s197 arbitration award – jurisdiction to make settlement an order of court.
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20 January 2017 |
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Reported
Failure to decide whether the employee acted dishonestly vitiated the award; gross dishonesty justified dismissal.
Labour law – misconduct and dismissal; dishonesty – submission of inflated quotation; procedural fairness – arbitrator's failure to determine primary issue; inconsistency in disciplinary treatment; sanction – gross dishonesty vitiates mitigation from long service; review – award unreasonable for omitting material determination.
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10 January 2017 |
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Reported
The applicant’s dismissal of the respondent for poor performance was unfair where targets were unrealistic or time to improve too short.
Labour law – dismissal for poor performance; requirement to prove fair reason and fair opportunity under Code of Good Practice; achievable performance targets; sufficiency of warnings and time to improve; appropriate sanction (reinstatement where dismissal unfair).
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10 January 2017 |
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Reported
An arbitrator must apply section 193(2) of the LRA before ordering reinstatement after finding dismissal unfair.
Labour law – unfair dismissal – substitution of disciplinary chairperson’s sanction by employer; arbitration awards – requirement to apply section 193(2) LRA before ordering reinstatement; review of bargaining council awards under section 145 LRA; condonation for late review; remittal for de novo arbitration where record incomplete.
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10 January 2017 |
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Condonation refused; dismissal for gross insubordination and negligence upheld as procedurally and substantively fair.
Labour law – condonation for late review under s145 LRA – strict scrutiny in individual dismissal cases; procedural fairness – delay in instituting disciplinary proceedings and permissibility under employer's disciplinary code; substantive fairness – gross insubordination and gross negligence; Sidumo reasonableness standard on review; attribution of union delay to employee; requirement for concrete proof of inconsistent discipline.
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10 January 2017 |
