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Citation
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Judgment date
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| October 2015 |
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A sham asset transfer cannot be treated as a lawful scheme to avoid winding‑up under s197A; appeal dismissed with costs.
* Labour law – s197A LRA – transfer pursuant to scheme/compromise to avoid winding‑up – genuine purpose required; mere labelling insufficient. * Company and contract law – simulated transactions/in fraudem legis – court may examine substance over form. * Interpretation – whether s197A extends to non‑s311 compromises left open where sham is present.
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21 October 2015 |
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The respondent failed to show a s197 transfer because essential assets and systems were not transferred to the applicant.
Labour law – s197 LRA – transfer of business as a going concern – Spijkers/Oy Liikenne factors (assets, employees, customers, intangibles, continuity); Administrative law – Oudekraal/Kirland: administrative acts remain effectual until set aside; Burden of proof – respondent must establish on probabilities that the entity retained its identity.
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21 October 2015 |
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Reported
Senior employee's secret receipt and non‑disclosure of benefits from service providers constituted dismissible dishonesty; dismissal was fair.
Labour law – dismissal for misconduct – non‑disclosure of gifts and benefits from service providers; workplace dishonesty and breakdown of trust; procedural fairness in disciplinary hearings; review of arbitration awards – Sidumo/section 145 reasonableness and gross irregularity; employer Code of Ethics and Gifts policy – sanction of dismissal justified for serious dishonesty.
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5 October 2015 |
| August 2015 |
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Reported
Dismissal at age 64 was automatically unfair and discriminatory; single just-and-equitable solatium awarded for dignity impairment, EEA damages not proven.
Labour law – automatically unfair dismissal (age) under s187 LRA; Employment Equity Act – age discrimination under s6; Concurrent remedies – pursuing LRA and EEA claims in one action; Compensation under LRA as solatium (non‑patrimonial) v damages under EEA; Single just and equitable award to avoid double recovery; Proof of patrimonial loss required for EEA damages.
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21 August 2015 |
| July 2015 |
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Reported
Section 200A presumption requires a contract/contractual arrangement; voluntary pastoral service without contractual intent is not employment.
Labour law — jurisdiction of CCMA — who is an employee — interpretation of s200A LRA ("regardless of the form of the contract") — requirement of a contract or contractual arrangement — voluntary religious ministry versus employment.
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28 July 2015 |
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Arbitrator’s reinstatement of employee upheld where circumstantial evidence did not prove collusion.
Labour law – review of arbitration award – drawing inferences from circumstantial evidence – primary facts must be proved before inferring collusion; weight and reliability of video and polygraph evidence; standard of review in labour arbitration; reinstatement as primary remedy for unfair dismissal.
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22 July 2015 |
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Reported
Whether employees accepted an offer to retain lower wages determined fairness of their retrenchment.
Labour law – dismissal for operational requirements – whether employees accepted employer's reasonable offer to retain them at prior wage – evidentiary onus and admissibility of hearsay – relevance of contemporaneous notes and conduct in assessing acceptance/refusal.
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2 July 2015 |
| June 2015 |
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Strike to reverse unilateral wage cuts for specific employees protected; broad wage-increase demands affecting costs fall under collective bargaining.
Labour law – strike protection – interpretation of prior appellate judgment – distinction between undoing unilateral reductions (protected) and substantive wage increases affecting employer costs (subject to collective bargaining); condonation for inordinate delay in prosecution of appeal.
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25 June 2015 |
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Employee failed to prove constructive dismissal: employer took reasonable steps, commissioner ignored material evidence, CCMA lacked jurisdiction.
Labour law – Constructive dismissal – test requiring termination by employee, intolerability of continued employment, and causation by employer – jurisdictional fact for CCMA – commissioner’s duty to weigh evidence and not ignore material contradictory testimony – review where findings irrational.
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24 June 2015 |
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Collective agreement did not bar a strike on company‑level demands absent proof those issues were negotiated nationally.
Labour law — right to strike — limitation by collective agreement (s65(3)(a) LRA) — interpretation of Framework Agreement clause 8.5 and Memorandum clause 12 — onus on employer to show issue was negotiated nationally; inference insufficient to displace onus — stay pending CCMA not automatic where not sought below.
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24 June 2015 |
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Application dismissed where genuine disputes of fact required oral evidence and applicants failed to seek it.
Labour/employment — Authority to contract — Acting CEO’s authority to conclude fixed-term contracts without Board approval — internal moratorium and non-compliance with HR and procurement policies — Turquand rule and ostensible authority inapplicable absent proof — Civil procedure: Plascon-Evans/Wightman — genuine disputes of fact in motion proceedings require oral evidence or dismissal.
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24 June 2015 |
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s191(5) LRA triggers arbitration/right to adjudicate on either a certificate or 30‑day lapse; delayed referral required condonation.
Labour law – dispute resolution – interpretation of s191(5) LRA – jurisdictional trigger either certificate of non‑resolution or lapse of 30 days; ss135/136 distinct and not applicable to s191 disputes; reasonable referral period to arbitration is 90 days; condonation required for later referrals.
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24 June 2015 |
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A zero‑tolerance policy does not justify dismissal for a single failure to declare low‑value goods without proportionality.
Labour law – fairness of dismissal – appropriateness and proportionality of sanction for failure to declare/cancel personal goods; Zero‑tolerance policies – not absolute; must be justified by circumstances; Distinction between failure to cancel and theft; Review of CCMA awards – unreasonable outcomes removable on review.
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24 June 2015 |
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CCMA had jurisdiction; foreign office was not a separate undertaking and commissioner reasonably found dismissal substantively unfair.
Labour law – territorial jurisdiction of the LRA – CCMA jurisdiction where employee serves in overseas office of South African statutory employer; Astral/Genrec Mei: foreign office must be separate and divorced undertaking to exclude LRA. Arbitration procedure – jurisdiction assessed on pleadings; mero motu jurisdictional reviews discouraged. Evidence – civil standard for fraud/dishonesty: misrepresentation, prejudice, intention; absence of unequivocal guilty plea. Review – commissioner’s factual findings and sanction within band of reasonableness.
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11 June 2015 |
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Reported
Non‑disclosure misconduct requires actual, deliberate knowledge of colleagues' wrongdoing; personal finances alone do not suffice.
• Labour law – derivative misconduct – non‑disclosure – requires actual, subjective knowledge and deliberate silence by employee.
• Duty of good faith – breach requires proof of actual knowledge of colleagues' wrongdoing, not mere suspicion or constructive knowledge.
• Personal financial information is not necessarily information about criminal wrongdoing and cannot alone ground a non‑disclosure misconduct finding.
• Remedy – where dismissal is substantively unfair and no credible basis for dishonesty is shown, reinstatement with back pay is appropriate.
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3 June 2015 |
| May 2015 |
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Reported
Employer's failure to advise and compassionately assist an ill employee rendered continued employment intolerable; appeal dismissed.
Labour law – constructive dismissal – employer's failure to advise on extended sick leave and treating certified sick absence as unauthorised – objective test for constructive dismissal – reasonableness review of arbitration award.
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12 May 2015 |
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Reported
A reinstatement order revives the employment contract but does not automatically entitle payment for the post-award-to-implementation period.
Labour law — reinstatement orders — effect and temporal scope; whether reinstatement entitles employee to post-award-to-implementation remuneration; enforcement — limits of writs of execution and inadvisability of registrar quantification by affidavit; contractual claim for interim wages; employer becomes judgment debtor only after adjudication.
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5 May 2015 |
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Reported
An employer may lock out employees, including non‑party union members, where a bargaining‑council deadlock affects their interests.
Labour law – Strikes and lock-outs – procedural notice requirements under s64 LRA; Motion proceedings – Plascon-Evans rule and when oral evidence is required; Bargaining councils – majoritarian principle and binding effect on non-party members (s32 extension); Lawfulness of locking-out members of a non-party union who have a material interest in the dispute.
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5 May 2015 |
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Reported
An arbitration award is published to each party when that party actually receives it; time limits are peremptory and must be proved.
* Arbitration – Arbitration Act 42 of 1965 – Publication of award – where award not delivered in presence of parties, publication is when each party receives it; statutory presumption in s25(2) does not apply.
* Review – time limit – six weeks for review under s33(2) – computed by civil method (exclude first day); peremptory time limit requiring condonation if late.
* Procedure – onus to prove timely institution lies initially with applicant; assumptions of simultaneous receipt cannot be elevated to facts.
* Remedies – where publication date uncertain court may remit to arbitrator to deliver award in presence of parties.
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5 May 2015 |
| April 2015 |
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Reported
Whether a valid, consulted employment equity plan lawfully justified a non‑promotion under affirmative action.
Employment equity – affirmative action – existence and consultation of Employment Equity Plan – representivity and numerical goals – implementation must be rationally related to plan (Barnard; Van Heerden) – promotion decision justified where plan legitimate and applied rationally.
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24 April 2015 |
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Automatic termination clauses tied to client contracts cannot circumvent LRA protections; dismissal fair where employee refused offered alternative.
Labour brokers; automatic-termination clauses in employment contracts; validity under LRA s5 and s198 amendments; proximate-cause test for dismissal; operational-requirements retrenchment and offers of alternative employment; forfeiture of severance where alternatives unreasonably refused.
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17 April 2015 |
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Reported
Failure to consider mandatory regional demographics rendered the equity plan defective, but individual promotion remedies were not proved.
Employment equity – affirmative action v quotas – numerical targets and preferential treatment permissible under EEA s15 if flexible; quotas prohibited; s9(2) van Heerden test applied; s42 (then mandatory) requires regional and national demographics to be considered; individual remedies require specific causal evidence.
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10 April 2015 |
| March 2015 |
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Reported
An appeal to interdict a bargaining council became moot after the Minister granted the extension; appeal dismissed.
* Labour law — Mootness — Interdict seeking to prevent bargaining council requesting extension of collective agreement overtaken by events.
* Administrative law — Proper challenge to Minister's extension under s32(3) is by direct review of the Minister's decision.
* Res judicata/issue estoppel — Not established; causes of action and relief in the proceedings are distinct.
* Discretion to decide moot cases — Refused where a comprehensive pending review addresses the same legal questions.
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26 March 2015 |
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Reported
Non-compliance with section 189A timelines does not automatically render ensuing dismissals invalid; statutory remedies apply.
* Labour law – large-scale retrenchment – interpretation of section 189A(2)(a) and 189A(8) – consequence of non-compliance. * Remedies for procedural non-compliance – section 189A(9) (retaliatory strike) and section 189A(13) (urgent court relief). * Statutory construction – whether procedural breaches attract automatic nullity. * Precedent – De Beers and Revan principle overturned.
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3 March 2015 |
| January 2015 |
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Reported
Employer failed to properly investigate alternative placement before dismissing employee for incapacity; appeal dismissed with costs.
Labour law – dismissal for incapacity – employer’s onus to prove substantive and procedural fairness – duty to investigate alternatives short of dismissal (Code of Good Practice items 10 and 11; Sick Absence Control Procedures) – admissibility and weight of internal inquiry minutes and medical evidence – remit for fresh arbitration where commissioner unreasonably ignored material evidence.
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22 January 2015 |
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Reported
CCMA may not assume jurisdiction over bargaining-council disputes without a s 147 management decision.
* Labour law – CCMA jurisdiction – s 147 LRA – where dispute falls within bargaining council scope, CCMA or its delegate must decide to refer or confirm appointment before arbitration proceeds. * Jurisdictional rulings by commissioners are preliminary and reviewable; commissioners may not unilaterally assume CCMA jurisdiction. * Default awards are not final for purposes of s 147; rescission applications and jurisdictional decisions remain subject to review.
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15 January 2015 |
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Reported
A dispute finally determined by a bargaining council cannot later be reheard by the CCMA.
Labour law – jurisdiction – s 147(2) & (3) LRA – where dispute referred to and finally determined by a bargaining council, CCMA lacks jurisdiction to rehear; rule against collateral challenges and exceptio res judicata bar re-litigation; Labour Court obliged to decide jurisdiction mero motu.
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15 January 2015 |
| December 2014 |
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Reported
Owner-driver empowerment contracts were independent contractor agreements, rebutting section 200A and depriving the arbitrator of jurisdiction.
Labour law – employee v independent contractor – section 200A presumption – owner-driver empowerment scheme – jurisdiction of bargaining council – standard of review for jurisdictional findings.
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18 December 2014 |
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A contractual pro rata profit-share is a liquidated debt payable with prescribed mora interest.
Employment law – contract interpretation – profit-share clause – "pro rata portion" construed as proportion of annual 3% EBIT based on audited financial statements; Prescribed Rate of Interest Act – liquidated vs unliquidated debt – entitlement to mora interest from date amount ascertainable (or from demand under s2A); Appeal procedure – inadmissibility of belated defences and fresh evidence on appeal.
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18 December 2014 |
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Dismissal for accepting and failing to declare a supplier's favour upheld as substantively fair; Labour Court misapplied Sidumo review test.
Labour law – dismissal for breach of gifts/hospitality/favours policy – acceptance and failure to declare favour from supplier’s representative – inference of dishonesty from inconsistent explanations and non-disclosure – Sidumo review standard; Herholdt and Goldfields on reasonableness of arbitration awards – zero-tolerance policies and appropriate sanction.
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15 December 2014 |
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Expiry of a fixed-term training contract and refusal to accept employer‑determined placement do not constitute dismissal.
Labour law – fixed-term training contract – effluxion of time vs dismissal; employer's right to determine placement on permanent appointment; refusal to sign offer and repudiation; review of arbitration award on factual findings.
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12 December 2014 |
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Reported
Issue estoppel resisted on fairness; strike was refusal to bargain (unprotected) and dismissals were fair, appeal dismissed.
Labour law – strike action – distinction between wage disputes (s64(1)) and refusal-to-bargain disputes (s64(2)) – requirement for advisory award before protected strike in refusal-to-bargain matters; issue estoppel/res judicata – equity and fairness when prior interlocutory orders are relied upon to bar later unfair dismissal claims; dismissal for participation in unprotected strike – substantive and procedural fairness.
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12 December 2014 |
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Reported
Dismissal found unfair where commissioner misconceived insubordination, ignored unlawful salary deduction and failed to apply Code of Good Practice.
Labour law – dismissal for misconduct v incapacity – distinction between insolence and insubordination; unlawful unilateral deductions (BCEA s34) as provocation; Code of Good Practice – requirements before dismissal for poor performance; review of arbitration award for misconceived inquiry and unreasonable result; impermissibility of relying on reasons not advanced at dismissal.
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12 December 2014 |
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The appellant was not bound by MD102 because no contract, authority, or required approvals existed.
Management directive – alleged contract arising from meeting – proposals versus concluded agreement; early retirement affecting pension rights – interest dispute requiring recognition-agreement and pension-fund approvals; authority to bind employer – actual and ostensible authority; Turquand rule inapplicable where claimant aware internal procedures unresolved.
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10 December 2014 |
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Dismissal for operational requirements unfair where employer failed to consider alternatives (e.g. reducing contractors); reinstatement ordered.
Labour law – Retrenchment and operational requirements – Substantive fairness – Employer’s duty to consider alternatives under s189A(19) – Outsourcing/contractors – Dismissal as last resort – Objective review of employer’s rationale – Reinstatement remedy.
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10 December 2014 |
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Reported
An employee who is a union member is entitled to union representation at arbitration despite employer's objections to membership.
* Labour law – right to trade-union representation at arbitration – scope of union constitution and membership – purposive interpretation of CCMA Rules and LRA – employer's late objection/involvement in conciliation.
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3 December 2014 |
| November 2014 |
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A settlement made an order of court may remain a collective agreement and is subject to LRA dispute procedures.
Settlement agreements – where made orders of court – do not automatically render all contractual terms enforceable by contempt; only clear, certain and executable provisions should be treated as court orders; collective agreements fall under LRA dispute-resolution (s24(8)); collective agreements for indefinite periods may be terminated on reasonable notice (s23(4)); courts should distinguish between orders of court and contracts.
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27 November 2014 |
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Reported
Claim for backpay after alleged post upgrade failed—no proven incumbency and arbitrator’s award unreasonable.
Unfair labour practice – promotion/upgrade – entitlement to incumbency and back pay; ministerial approval and Occupation Specific Dispensation (OSD) – effect on upgrades; dispute of right v. dispute of interest – jurisdiction to arbitrate; review for unreasonableness – award irrational where factual prerequisites for entitlement not proven.
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25 November 2014 |
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Reported
An arbitrator’s late jurisdictional ruling without allowing reply and absent an agreed stated case is reviewable and the award set aside.
• Labour arbitration — procedure — stated case: parties wishing to proceed without oral evidence must agree a written stated case setting out agreed facts, legal questions and contentions.
• Arbitration — jurisdiction: a jurisdictional point raised for the first time in post‑hearing heads must not be decided without giving the other party an opportunity to respond.
• Review — section 145 LRA and constitutional administrative fairness: an arbitrator’s procedurally unfair conduct is reviewable and may lead to setting aside of an award.
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6 November 2014 |
| October 2014 |
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Reported
Parity principle applied with caution; dismissal for gross dishonesty by a senior financial broker was substantively fair.
Labour law – disciplinary consistency (parity principle) – review for reasonableness under s145 LRA – gross dishonesty by senior financial representative – fiduciary duties and FAIS obligations – irreparable breakdown of trust – sanction of dismissal upheld.
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24 October 2014 |
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Reported
A deeming clause supplemented "termination of employment" for bonus purposes; the restraint was triggered by actual termination and is enforceable.
Restraint of trade; retention bonus; deeming clause; interpretation of "termination of employment"; distinguishing retention and restraint; enforcement by assignee; restraint triggered by actual termination (waiver of notice).
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23 October 2014 |
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Reported
Whether pay disputes requiring interpretation of a collective agreement fall within Labour Court jurisdiction or must be referred under the LRA.
Collective agreements – Interpretation and primacy – disputes centrally about meaning of collective agreement clauses fall under s24 of the LRA and must be referred to agreed dispute body or CCMA; BCEA s77(3) – concurrent jurisdiction does not displace LRA dispute-resolution where collective agreement interpretation is pivotal; Labour Court jurisdiction – determined from pleadings and real nature of dispute; No work, no pay – s67(3) LRA applied to full-time shop-stewards when duties cannot be performed during strike; Full-time shop-stewards – paid on fiction of performing substantive duties; entitlement to pay during strike depends on whether duties were capable of performance.
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23 October 2014 |
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Reported
Arbitrator unreasonably ignored material evidence; proper inference was that employee knowingly assisted in tampering, so dismissal confirmed.
Labour law – review of arbitration award – inferential reasoning and evaluation of all evidence and probabilities – failure to consider material evidence renders an award unreasonable; discipline – tampering with exhibits and defeating the ends of justice; procedural fairness – fitness to participate and representation; sanction – dismissal appropriate where guilt on related serious charges established.
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23 October 2014 |
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Adverse inference from employee’s refusal to answer was permissible and supported a reasonable finding of fair dismissal.
Labour law – arbitration review – alleged failure to warn of adverse inference – adverse inference from silence permitted where witness and representative understood implications; assessment of circumstantial evidence and reasonableness of dismissal on balance of probabilities; deference to commissioner’s factual findings.
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23 October 2014 |
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Reported
Authorised acceptance and communicated approval of early-retirement application meant no dismissal occurred; appeal dismissed with costs.
Labour law – application for early retirement – acceptance by authorised official – communication of acceptance – when termination occurs; constructive dismissal – burden to prove dismissal; jurisdiction of bargaining council contingent on existence of dismissal.
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23 October 2014 |
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Labour Court erred by treating review as an appeal; commissioner’s dismissal decision was a reasonable outcome on the evidence.
Labour law — Review of arbitration awards — Sidumo/HERHOLDT test — Distinction between review and appeal — Reasonableness threshold for setting aside commissioner’s award on sanction; factors relevant to fairness of dismissal (nature of misconduct, effect on employer-client relationship, prior warnings, remorse).
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21 October 2014 |
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Reported
Arbitrator’s undisclosed co‑ownership and shared premises with a contractor to the employer gave rise to reasonable apprehension of bias; proceedings voided.
Labour arbitration — review for reasonable apprehension of bias — duty of arbitrator to disclose interests or relationships with a party — two‑stage test (subjective capacity for dispassion; objective reasonable‑litigant test) — failure to disclose may cast evidentiary light on bias — where recusal was required, proceedings vitiated and full rehearing necessary.
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21 October 2014 |
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Reported
Repeated re‑charging and coercion by the employer rendered the relationship intolerable, causing constructive dismissal.
* Labour law – constructive dismissal – resignation due to intolerable work environment caused by employer’s conduct – repeated disciplinary proceedings on same charge; * Disciplinary procedure – fairness of second disciplinary enquiry on same allegations – only justified in exceptional circumstances; * Employer culpability – repeated coercion and re‑charging can constitute repudiatory conduct.
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16 October 2014 |
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Reported
Reneging on a settlement re‑employment on prior terms constitutes dismissal and may justify compensation.
Labour law – dismissal – s186(1)(a) – re‑employment pursuant to settlement; dismissal where employer presents different terms and withdraws offer; CCMA jurisdiction; unfair dismissal – substantive and procedural fairness; remedy – reinstatement versus compensation; Kemp distinguished where post‑dismissal offers are not genuine unconditional reinstatement offers.
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7 October 2014 |
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Good cause is an independent ground for rescission of a CCMA award; commissioner and Labour Court misapplied section 144.
* Labour law – Rescission of CCMA arbitration awards – Interpretation of s144 LRA – "Good cause" an independent ground for rescission.
* Administrative law – Review – failure to apply mind to an important principle of law (good cause) constitutes reviewable irregularity.
* Procedure – Test for rescission – explanation for default and prima facie prospects of success to be weighed together.
* Rule compliance – bona fide attorney mistake and service of postponement application may constitute good cause.
* Appeals – condonation for late filing where delay is not excessive and prospects of success exist.
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7 October 2014 |
