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Citation
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Judgment date
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| December 2018 |
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Reported
Section 197 applies where an identifiable eNaTIS business transferred to a statutory body; interim salary order was wrongly granted without s18 compliance.
Labour law – transfer of business as going concern – section 197 LRA – public authority transferee – regulatory function does not automatically oust s197; Constitutional Court order as legal causa for transfer; Superior Courts Act s18 – interim execution requirements and irreparable harm; enforcement of monetary orders and competence of applications (writ of execution).
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21 December 2018 |
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Reported
Reduction of dismissal was irrational where employee's dishonest conduct destroyed the trust essential to his role.
Labour law – review of employer decisions under s158(1)(h) LRA – review on grounds of irrationality; Misconduct and sanction – dishonesty by a police legal advisor as destroying trust and justifying dismissal; Procedural delay – relevance to substantive fairness of sanction; Substitution of administrative decision where original decision irrational.
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11 December 2018 |
| November 2018 |
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Settlement unenforceable because arbitration retrospectively transferred the employee to the City under section 197.
Labour law – enforcement of settlement agreements – section 158(1)(c) and 158(1A) LRA – effect of a section 197 transfer – retrospective transfer of employees – jurisdiction to make settlement an order of court – retrenchment process (s189A) and conditional settlements.
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29 November 2018 |
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Reported
Employer failed to prove employees participated in an unprotected strike; dismissals found substantively unfair and reinstated.
Labour law – unprotected strike – identification of participants in collective misconduct; collective disciplinary measures and audi alteram partem; substantive fairness of dismissal; retrospective reinstatement and back pay.
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29 November 2018 |
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Reported
Premature dismissal for lack of statutory security clearance without reasons or PSRB review is substantively and procedurally unfair.
Labour law – incapacity dismissal – supervening impossibility of performance due to removal of statutory security clearance; Defence Act ss 37, 39 and 41 – requirement to furnish reasons and afford opportunity to present information and PSRB review before finalising dismissal; procedural fairness linked to substantive fairness; reinstatement vs compensation where clearance lacking.
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27 November 2018 |
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Reported
Refusing Saturday work for religious reasons amounted to automatically unfair dismissal; employer failed to reasonably accommodate.
Labour law; automatically unfair dismissal; religious discrimination; inherent job requirement; duty to reasonably accommodate; evidentiary burdens; incapacity jurisdiction of Labour Court.
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5 November 2018 |
| October 2018 |
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Insourcing most security staff without transfer of management or assets does not amount to a s197 going‑concern transfer.
Labour law – s197 LRA – transfer of business as a going concern – insourcing/security services; whether taking on majority of employees without transfer of management, equipment or operational control triggers s197; fact-specific inquiry; essential assets and personnel must transfer for going-concern status.
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25 October 2018 |
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Reported
Whether the respondent consented or acquiesced to reducing retirement age to 60 — court found acquiescence.
Labour / Employment – Age discrimination – Automatically unfair dismissal under s187(1)(f) – Exception where employee reached normal or agreed retirement age (s187(2)(b)). Contract variation – reduction of retirement age – invitation to elect in writing to retain prior retirement age; effect of silence/acquiescence. Evidence – burden and probabilities – absence of copy of election form; database upload issues insufficient to prove receipt; conduct and contemporaneous correspondence critical to credibility.
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17 October 2018 |
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Reported
Whether a pre-notice executive resolution rendered consultation a sham or subsequent conduct showed genuine consultation.
Labour law – operational requirements retrenchment – s189/s189A consultation – whether pre-notice executive resolution amounted to final decision – use of surrounding circumstances and subsequent conduct to interpret resolution – fait accompli – bona fide consultation and procedural compliance.
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17 October 2018 |
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Reported
A single deliberate refusal to obey a lawful instruction can constitute insubordination and dismissal may be reasonable under Sidumo.
Labour law – review of arbitration award – application of Sidumo standard – whether arbitrator’s conclusion was one a reasonable arbitrator could reach. Misconduct – insubordination – single deliberate refusal to obey a lawful managerial instruction can constitute gross insubordination. Sanction – range of reasonable responses and consideration of progressive discipline – review court must not substitute its own value judgment for arbitrator’s. Burden/evidential assessment – adverse credibility findings do not equate to improper shift of legal onus.
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17 October 2018 |
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Reported
An arbitrator’s dismissal is only reviewable if unreasonable; here dismissal for serious abusive conduct was reasonable.
Labour law – s145 LRA – review test: award reviewable if unreasonable or a decision no reasonable decision‑maker could reach; distinction between review and appeal. Sanction – reasonableness of dismissal – weight of proven abusive and reputationally damaging conduct may justify summary dismissal. Progressive discipline and incompatibility – failure to afford progressive steps does not render dismissal automatically unreasonable; context and seriousness matter.
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11 October 2018 |
| September 2018 |
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Reported
Whether a single disciplinary hearing sufficed for guilt and mitigation and whether the commissioner’s procedural-fairness finding was reasonable.
Labour law – unfair dismissal – procedural fairness; disciplinary process – single hearing on both guilt and sanction permissible where mitigation was aired; standard of review – whether commissioner’s award was one a reasonable commissioner could reach; conflict/recusal – participation of Council members who testified did not materially prejudice unanimous vote; delay/appeal and legal representation – late internal appeal and costs of representation not shown to render process unfair.
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25 September 2018 |
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Reported
Promotion-related unfair-labour claims are debts under the Prescription Act; certification does not interrupt prescription and awards bind only arbitration parties.
Labour law – unfair labour practice relating to promotion – constitutes a debt under the Prescription Act; Prescription Act applies to LRA disputes; referral to CCMA/bargaining council interrupts prescription; certification of award does not interrupt prescription; arbitration awards bind only parties to arbitration; Labour Court may order implementers to comply and grant contempt relief.
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6 September 2018 |
| August 2018 |
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Reported
Interest on an arbitration award under review runs from the Labour Court judgment fixing the quantum, not the award date.
Labour law; mora interest on arbitration awards; effect of review proceedings on interest accrual; s 143(2) LRA; when arbitration awards become liquidated debts.
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15 August 2018 |
| June 2018 |
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Reinstatement orders create immediate entitlement to back-pay for the ordered period, regardless of tendering services.
Labour law – reinstatement with retrospective effect – back-pay flows directly from court order; tender of services or reporting for duty not required to accrue arrear remuneration for period covered by order; resignation after reinstatement does not defeat back-pay entitlement; Equity Aviation and Hendor considered.
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7 June 2018 |
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Reported
Perfection of a notarial bond by a creditor to realise debt does not ordinarily effect a section 197 transfer of employment contracts.
Labour law – Transfer of business as a going concern – Whether perfection of a notarial bond and temporary creditor management constitutes a s197 transfer – Substance over form; creditor’s limited purpose to realise debt. Employment law – Automatically unfair dismissal – s187(1)(g) – Applicability where no section 197 transfer to creditor. Security and insolvency – Notarial bonds – Effect of perfection on employer identity and employees’ contracts.
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7 June 2018 |
| May 2018 |
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Reported
Reinstatement restores the employee to the pre‑dismissal job and terms; it does not entitle a retrospective promotion absent legal entitlement.
Labour law – Reinstatement – meaning of reinstatement: restores employee to same job and terms as at dismissal; does not confer promotion absent contractual/statutory right. Interpretation of orders – court intention ascertained from language and reasons; Steenkamp J's clarification of SCA order controls. SAPS Employment Regulations – regulation 30(7)-(9): discretion to upgrade post and absorb incumbent; courts may not fetter that discretion by ordering retrospective promotion. Adduction of new evidence on appeal – exceptional circumstances required; remissness and lack of materiality defeat application.
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25 May 2018 |
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Reported
Dismissal was fair where respondent employees ignored a clear, extended final ultimatum during a critical production period.
Labour law – Unprotected strike – Code of Good Practice (Schedule 8, items 6 & 7) – Final ultimatum – Differentiation between employees who complied and those who did not – Dismissal as appropriate sanction where ultimatum ignored during critical production period – Sidumo review standard.
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11 May 2018 |
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Reported
A remittal to the same commissioner must be honoured; parties' consent cannot validate substituting a commissioner or hearing fresh evidence.
Labour law; review and remittal — remittal to same commissioner to determine sanction; substitution of commissioner; parties' consent insufficient to alter remittal order; fresh evidence inconsistent with remittal; variation of court order required.
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10 May 2018 |
| April 2018 |
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Acceptance and performance under a substitute contract precludes later specific performance of the cancelled original contract.
Contract law – election on repudiation – specific performance vs acceptance of cancellation – substitute employment contract; conduct inconsistent with claimed remedy; need to plead damages alternatively where specific performance may fail.
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30 April 2018 |
| March 2018 |
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No binding settlement where counter-offer destroyed original offer and no signed written agreement by both parties existed.
Labour law – settlement agreements – offer and counter-offer; effect of counter-offer destroying original offer; intention to be bound only by written signed agreement; authority of State Attorney to bind the State.
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30 March 2018 |
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Reported
Credibility‑based arbitration finding that employees abandoned a patient was reasonable; Labour Court erred in setting aside award.
Labour — Arbitration review — Reasonableness of factual findings — Credibility assessment where versions are mutually destructive; Patient abandonment — probative value of contemporaneous documents, witness statements and probabilities; Sanction — dismissal reasonable for abandoning vulnerable patient; Scope of review — Labour Court must assess whether arbitrator’s outcome is one a reasonable decision‑maker could reach.
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20 March 2018 |
