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Citation
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Judgment date
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| February 2019 |
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Reported
An employer may review a presiding officer’s disciplinary ruling under PAJA where dismissal occurred without procedural fairness.
Administrative law review of disciplinary rulings – State as employer – s158(1)(h) LRA empowers Labour Court to review presiding officer decisions – PAJA grounds (unreasonable, irrational, procedurally unfair) – pleading requirements – Bato Star principle – audi alteram partem – Collective Agreement clause on 60-day suspension rule.
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27 February 2019 |
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Reported
Commissioner’s finding of negligence (not dishonesty) and reinstatement was reasonable; appeal dismissed with costs.
Labour law – arbitration review – standard of review – whether award falls within band of reasonable outcomes. Misconduct – dishonesty versus negligence – proof of intent to falsify overtime claims. Remedy – appropriateness of dismissal versus reinstatement with a final written warning. Burden of proof – employer’s obligation to prove intentional falsification and breakdown of trust. Procedural irregularity – failure to establish existence of specific workplace rule regarding meal interval claims.
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27 February 2019 |
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Reported
An employee who accepted a retention bonus under a reciprocal ELISA must repay it if resigning before the contractual retention period ends.
Employment law – retention bonus/ELISA – retention bonus paid in advance as reciprocal contract; clause requiring repayment if employee resigns within retention period. Contract interpretation – Endumeni principles; termination/addendum requirement and acceptance of repudiation. Labour law/BCEA s34 – deduction permitted where employee agreed in writing; s34(2) reimbursement requirements not engaged. Remedies – employer entitled to contractually agreed deduction from terminal pay for early resignation.
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26 February 2019 |
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Reported
A bargaining council constitution can substantively prohibit plant-level wage demands, rendering related strikes unprotected.
Labour law – Collective agreements – bargaining council constitution – centralised bargaining; Prohibition on plant-level bargaining – substantive restraint on negotiating wages and other matters of mutual interest; Strike law – protected/unprotected strikes – s 65(1)(a) LRA; Effect of expiry of a sectoral agreement – constitution of bargaining council remains binding; Immunisation/reservation clauses in settlement agreements do not negate council-level bargaining obligations.
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26 February 2019 |
| 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 |
| 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 |
