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Citation
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Judgment date
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| October 2014 |
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Reported
Arbitrator misconceived PAM provisions on upgraded principal posts; SGB recommendation not binding and award set aside.
Labour law – unfair labour practice relating to promotion on re-grading of institution – PAM Chapter B para 2.5 and ELRC Resolution 3 – upgraded principal post treated as new vacant post – SGB recommendation permissive not binding – arbitrator’s failure to apply mind to collective agreement material leads to unreasonable outcome and reviewable award under LRA s145.
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1 October 2014 |
| September 2014 |
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Reported
The respondent may seek Labour Court review of state‑as‑employer disciplinary determinations; inadequate sanction substituted with dismissal.
Labour law – s158(1)(h) LRA – review of State‑as‑employer disciplinary decisions; Administrative law – PAJA applicability and common‑law review of contractual disciplinary tribunals; Constitutional principle of legality and rationality as grounds of review; Employer locus standi to review presiding officer’s sanction; Sanction review – irrationality and proportionality leading to substitution with dismissal.
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25 September 2014 |
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Arbitrator’s unresolved factual disputes did not render award unreasonable; SMSes ineffective, dismissal within reasonable range.
Labour law — review of arbitral awards — section 145 LRA — gross irregularity — unresolved factual disputes — reasonableness standard; escalation procedures — communication requirements — SMS versus telephone; fairness of dismissal — sanction within band of reasonable outcomes.
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10 September 2014 |
| August 2014 |
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Where mutually destructive versions exist, a commissioners award that reasonably prefers employees version and orders reinstatement will not be set aside.
Labour law - review of arbitration award - Sidumo reasonableness test; mutually destructive versions - evaluation of credibility, reliability and probabilities; picketing code and lawful picketing; substantive fairness of dismissals arising from strike conduct; reinstatement as primary remedy and proof required for breakdown of trust.
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19 August 2014 |
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Absence without permission exceeding one month triggers dismissal by operation of law under s17(5)(a)(i), ousting council jurisdiction.
Public Service Act s17(5)(a)(i) – termination by operation of law – abscondment (absence without permission exceeding one month) – effect on bargaining council jurisdiction – suspension lifted and lawful deployment.
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19 August 2014 |
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A union's locus standi can be raised at any stage, but claimants failed to prove an alleged oral overtime agreement.
Civil procedure – locus standi – point of law may be raised at any stage of proceedings. Labour law – collective bargaining – a registered union has authority to represent members in negotiations. Contract – oral agreement – plaintiff must prove date, parties and terms to avoid absolution from the instance. Absolution from instance – court may draw reasonable inferences from documentary and common‑cause facts.
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19 August 2014 |
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Reported
The 90-day LRA limit applies to EEA referrals; condonation granted given explained delay and arguable prospects.
Employment Equity Act – referral to Labour Court after unsuccessful conciliation – applicability of 90-day LRA time limit; Calculation of time – runs from date of CCMA outcome certificate, not from later jurisdictional ruling at arbitration; Condonation – Melane factors (degree of lateness, explanation, prospects of success, importance) applied; Unfair discrimination under EEA – employer bears onus to prove fairness; Employment equity policy/plan – absence of plan and bare assertions of compliance do not permit dismissal at condonation stage.
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14 August 2014 |
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Reported
A new service provider’s takeover of warehousing operations using the same premises, assets and systems triggered s197 protection.
Labour Law – s197 LRA – transfer of business as a going concern – service provision change (outsourcing/retendering) – when a change of contractor triggers s197. Factors relevant to transfer – assets, premises, IT systems, continuity of activity, identity of economic entity, employees. Group companies – formal employer vs de facto employer – cannot be used to evade s197. Absence of a written contract does not bar s197 where substance shows takeover of business activity.
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6 August 2014 |
| July 2014 |
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Reported
The applicant failed to prove voluntary retrenchment; respondents were automatically unfairly dismissed for union membership.
Labour law – dismissal v voluntary retrenchment – when failure to sign retrenchment agreement means dismissal; automatic unfair dismissal – dismissal for union membership (s5, s187 LRA); effect of banking retrenchment payments – waiver/acceptance; scope of pre-trial minute – issues raised in pleadings; reinstatement as primary remedy and effect of delay.
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23 July 2014 |
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Failure to apply agreed LIFO and consider bumping rendered the retrenchment substantively unfair; reinstatement ordered.
Labour law – retrenchment – selection criteria – collective retrenchment agreement binds parties; deviations require justification and written variation. LIFO and bumping – bumping is part of LIFO and must be considered/consulted on unless validly excluded. Procedural duty – employer must consult regarding bumping and justify non-application. Substantive fairness – failure to apply agreed criteria fairly renders dismissal substantively unfair.
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22 July 2014 |
| June 2014 |
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Employer’s failure to process incapacity applications and excessive salary recoveries constituted constructive dismissal; reinstatement was ordered.
Labour — Constructive dismissal (s186(1)(e)) — Employer’s failure to process incapacity/retirement applications; unreasonable recovery of alleged overpayments; cumulative employer conduct rendering continued employment intolerable; reinstatement permissible where intolerable conditions no longer exist; review of arbitration award — Herholdt unreasonable‑result test.
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26 June 2014 |
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Reported
A trade union cannot be held in contempt absent clear, specific interdict obligations and proof of its own wilful breach.
Labour law – contempt of court – trade union – unprotected and violent strike – proof required to hold juristic person in contempt – distinction between vicarious liability for members' acts and direct breach by union – requirement of clear, specific interdict terms and proof beyond reasonable doubt.
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12 June 2014 |
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The applicant’s environmental disclosure to the media was protected under the PDA and NEMA and did not render the employment relationship intolerable.
Labour law – unfair dismissal – remedy – reinstatement is primary remedy; whistleblowing – protected disclosure under Protected Disclosures Act and NEMA; disclosure to media does not automatically render employment relationship intolerable; review of arbitration award where commissioner disregards material evidence.
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12 June 2014 |
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Collective bargaining cannot validate unfair age-based pay and rank discrimination; employer liable, compensation limited to equitable solatium.
Employment Equity Act – age discrimination – collective agreement cannot justify unfair discrimination; employer bears onus to prove fairness. Inherent job requirement – employer must prove age is an inherent requirement; fitness, not age, is material for pilots. Remedies under EEA – 'damages' (patrimonial loss) distinguished from 'compensation' (solatium); awards must be just and proportional. Labour Court sitting as arbitrator (s158(2)(b) LRA) – decisions are orders/judgments appealable to LAC. Unfair labour practice – improper use of accumulated leave pay to remunerate employee without consent.
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12 June 2014 |
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Reported
An employer may not unilaterally define collective-agreement 'speciality' posts; arbitrator may assess fairness and order translation.
Collective agreements – interpretation and application – employer cannot unilaterally define terms absent express authority; arbitrator empowered to interpret and assess fairness. Labour law – Occupational Specific Dispensation for nurses – clause 3.2.5.3 – translation to speciality stream where nurses permanently occupy and performed speciality duties satisfactorily. Public Service Act – delegated managerial prerogative cannot override collective agreements or arbitration powers. Evidence – interdisciplinary testimony (medical specialist) admissible to determine nature of nursing functions.
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5 June 2014 |
| May 2014 |
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Section 144 must include ‘good cause’; commissioners must assess explanation and prima facie defence for rescission.
Labour law – Labour Relations Act s144 – Rescission of default arbitration awards – s144 to be interpreted to include ‘good cause’ – Commissioner must consider explanation for default (reasonableness and bona fides) and prima facie defence – Binding precedent: Shoprite Checkers – Failure to consider good cause and prospects of success vitiates decision.
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30 May 2014 |
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Reported
Termination/handover that transfers assets, systems and continuity of services triggers s 197 and transfers employees to the new employer.
Labour law – s 197 LRA – transfer as going concern – substance over form; factors: transfer of tangible/intangible assets, personnel, customers and continuity of activity – holding/interim operation does not avoid s 197 – application of Aviation Union and NEHAWU tests.
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29 May 2014 |
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Reported
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27 May 2014 |
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Refusal to allow rebuttal witness to contradict a party’s own adverse witness was an unreasonable, material irregularity.
Labour law – Arbitration – material irregularity – Commissioner’s refusal to allow rebuttal evidence to contradict party’s own witness – unreasonable exercise of discretion – review under s145(2)(a)(ii) LRA – award set aside and remitted for hearing de novo.
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16 May 2014 |
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Reported
Arbitrator’s finding of managerial gross negligence upheld; late inconsistency claim refused; appeal dismissed with costs.
Arbitration review – Sidumo standard – reasonable outcomes; Managerial duty and gross negligence – obligation to exercise managerial judgment and proper monitoring; Procedural fairness – pre-hearing minute limits scope; Late introduction of new grounds (inconsistency) may be refused where prejudicial; Inconsistency defence requires comparable misconduct and roles; Appeal cannot raise new grounds not argued in review court.
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15 May 2014 |
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Reported
Polygraph results alone, without expert validation, are insufficient to prove misconduct; reinstatement accordingly appropriate.
Labour law – unfair dismissal – onus to prove misconduct on a balance of probabilities – circumstantial evidence must point to the most probable inference. Evidence – polygraph tests – not self-sufficient; require expert evidence to establish conceptual cogency and accurate application before being given substantive weight. Remedy – reinstatement is primary; intolerability/impracticability to displace reinstatement demands high threshold. Review – whether arbitrator’s outcome was one a reasonable arbitrator could not reach.
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13 May 2014 |
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Reported
Employer's failure to prevent landlord excluding pregnant employees amounted to repudiation and an automatically unfair dismissal.
Labour law; dismissal — denial of workplace access by landlord security; employer's duty to accept tender of services; repudiation of employment contract; pregnancy discrimination; s187(1)(e) LRA; unenforceability of landlord-imposed discriminatory code where employee not bound.
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13 May 2014 |
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The applicant's unexplained refusal to reinstate deemed-dismissed employees was irrational and unlawful.
Public Service Act s17(3)(a)(i) deemed dismissal; s17(3)(b) discretionary reinstatement — reviewable under s158(1)(h) LRA on principle of legality; requirement of rationality and provision of reasons; condonation for delay where explanations satisfactory; medical incapacity may constitute good cause for reinstatement.
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13 May 2014 |
| March 2014 |
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Reported
Arbitrator’s failure to consider material evidence rendered reinstatement unreasonable; dismissal for dishonesty upheld on review.
Labour law – dismissal for dishonesty – substantive fairness – use of indicia (e‑mails, experience, timing, admissions) to infer knowledge and intent. Arbitration awards – review – commissioner’s failure to take into account matters of great significance – award unreasonable and reviewable. Procedural – condonation for late filing and non‑compliance with court rules.
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27 March 2014 |
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Reported
Labour Court lacked jurisdiction to join employers not conciliated as required by section 191 of the LRA.
Labour law – s191 LRA – statutory conciliation prerequisite for dismissal disputes; jurisdictional consequence of non‑conciliation; Labour Court Rules cannot override statutory preconditions; joinder (Rule 22(2)(a)) – requirement of a direct and substantial interest; condonation for late referral and failure to review refusal.
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26 March 2014 |
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Labour Court lacks jurisdiction where the applicant expressly denies being an employee.
Labour Court jurisdiction – s157 LRA – limits to disputes for which LRA provides remedies – Gcaba interpretation; non-employee disputes outside Labour Court jurisdiction; arbitration clause and jurisdictional questions; professional footballer registration and validity of power of attorney; McCarthy distinguished.
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12 March 2014 |
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Reported
An unsigned drafting‑team draft cannot bind parties where the constitution requires formal committee decision and signatures.
Collective agreements – formation – whether informal drafting‑team decisions bind parties where constitution prescribes formal bargaining‑committee decision and signatures; Practice and custom – cannot override clear constitutional requirements without evidence of well‑entrenched practice; Rectification – requires proof of prior concluded agreement/common intention and that written record fails to reflect it; Signature/formality – parties’ conduct treating signature as constitutive of binding agreement is decisive.
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4 March 2014 |
| February 2014 |
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Reported
Only conditional dismissals to compel acceptance fall under section 187(1)(c); final dismissals may be operationally justified.
Labour law – Automatically unfair dismissal (s187(1)(c)) – dismissal to compel employee to accept a demand – requires conditional/reversible dismissal; final/irreversible dismissals fall outside s187(1)(c). Distinction between s186 dismissal (ordinary dismissal) and s187(1)(c) dismissal (compulsion) – nature and reversibility are decisive. Jurisdiction – Labour Court should refer unadjudicated unfair-dismissal disputes to CCMA for arbitration in terms of s158(2) where appropriate. Pleadings – new grounds (eg discrimination) cannot be entertained if not pleaded in statement of case or supporting affidavit.
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20 February 2014 |
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Reported
Lengthy unexplained delay in prosecuting review was unreasonable; condonation refused and appeal dismissed with costs.
Labour law — review of arbitration award — delay in prosecuting review; rule 7A(8) and Registrar directives; condonation principles — gross non‑compliance may justify refusal without considering prospects of success; expedition in labour disputes; costs for unreasonable conduct.
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13 February 2014 |
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An emailed extract inviting comments was provisional, not a final arbitration award, so the arbitrator could change it before issuing the formal award.
Labour arbitration — What constitutes an ‘issued’ arbitration award under clause 10.7.10.1 and s138(7) LRA — Preliminary communications inviting implementation feedback do not amount to final awards — Functus officio inapplicable absent a final issued award — Electronic signature requirements under ECT Act.
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13 February 2014 |
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Reported
Employer failed to apply agreed retrenchment criteria; dismissal held substantively unfair; reinstatement impracticable.
Labour law – retrenchment – s189 and s189A – parties may agree selection criteria – employer must prove agreed criteria were applied fairly – subjective interview assessments without scoring insufficient – informing of a vacancy does not equal offering alternative employment – reinstatement impracticable where post abolished; re-employment cannot be ordered where not pleaded.
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7 February 2014 |
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Reported
Late filing condoned where reasonable explanation exists and incorporated response shows a bona fide defence.
Labour law — condonation for late delivery of response — fax service to general number — incorporation by reference of filed response — prospects of success — Rule 12 (Labour Court Rules) and Melane/Motloi principles.
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5 February 2014 |
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Reported
A probationary dismissal must still be substantively fair; inadequate evaluation/support by the employer can render it unfair.
Labour law – unfair dismissal – probationary employee – Code of Good Practice item 8(1) – employer’s duty to provide reasonable evaluation, training and resources – standard of review of arbitration awards under Sidumo – shifting targets and procedural shortcomings can render dismissal substantively unfair.
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5 February 2014 |
| December 2013 |
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Reported
Health and safety measures (including breathalyser testing) are matters of mutual interest; strike action over them can be protected.
Labour law – right to strike – health and safety measures (including alcohol testing) constitute matters of mutual interest; OHSA duties do not implicitly curtail the right to strike; breathalyser testing implicates privacy and requires negotiation; employer must show that a method is the only reasonably practicable means to discharge OHSA duties.
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5 December 2013 |
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Reported
Arbitrator had jurisdiction; dismissal was an unfair sanction; LAC may, sparingly, decide unaddressed review grounds.
Labour law – jurisdiction of bargaining councils/arbitrators – true nature of dispute determined from facts not labels; arbitrator need not stop proceedings on bare allegations of union victimisation. Appeal powers – s174(b) LRA analogous to s22 Supreme Court Act – LAC may in exceptional circumstances finalize grounds of review not dealt with by Labour Court. Review standard – Sidumo reasonableness applies to sanction assessment.
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2 December 2013 |
| November 2013 |
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Reported
Commissioner’s finding on dismissal date upheld; Labour Court wrongly substituted relief and mero motu joined parties.
Labour law – arbitration awards – review – date of dismissal determined on probabilities; role of commissioner in preference of mutually destructive versions; Labour Court may not substitute arbitration relief or join parties mero motu without notice; execution of arbitration awards not automatically stayed pending review.
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21 November 2013 |
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A process-related irregularity must be assessed under the Sidumo reasonableness test; dismissal for deliberate fabrication was fair.
Labour law – review of arbitration awards – process-related irregularity (miscategorisation) not a self-standing ground for setting aside; alleged gross irregularity must be assessed against the Sidumo reasonableness test; misconduct v incapacity distinction; dismissal for deliberate fabrication and failure to follow procedure can be substantively fair.
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15 November 2013 |
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Employer failed to prove genuine retrenchment; consultation was a sham and dismissal was unfair.
Labour law – dismissal for operational requirements – employer onus to prove genuine redundancy and bona fide commercial rationale; consultation must be genuine and precede final decision (no fait accompli); sham consultation justifies employee refusal to participate; arbitrator’s award reasonable and not susceptible to review.
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13 November 2013 |
| October 2013 |
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An employer may not unilaterally substitute dismissal for a chairperson’s final sanction under a collective agreement.
Collective agreements – disciplinary procedure – clause making chairperson’s sanction final – employer’s substitution of sanction prohibited; Contractual interpretation – implied terms – duty of trust and confidence does not permit implication of a right to override express collective agreement terms; Administrative/contractual fairness – unilateral substitution without hearing breaches audi alteram partem and is ultra vires; Labour law – unfair dismissal – reinstatement where dismissal unreasonable under Sidumo standard.
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17 October 2013 |
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The appellant could not unilaterally change contractual start times; dismissals for refusal were substantively and procedurally unfair.
Labour law – jurisdiction – CCMA referrals and certificates of non-resolution; Terms and conditions – change of starting time – contractual term v work practice; Collective bargaining – unilateral variation impermissible; Procedural fairness – biased chair/caucus and sham disciplinary enquiry; Remedy – reinstatement despite delay; Interim orders – limited operative effect.
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4 October 2013 |
| September 2013 |
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The applicant's letters about widely known financial concerns were not PDA‑protected; misconduct‑based unfair‑dismissal claims require arbitration.
Labour law – Protected Disclosures Act – scope of "disclosure" and s9(2)(c) prior disclosure requirement – whether discussions with directors amounted to prior disclosure; PDA protection requires reasonably held belief and serious impropriety; employer reputation/disparagement and misconduct dismissals; jurisdiction — Labour Court may adjudicate automatically unfair dismissal under s191(5)(b) but misconduct dismissals fall to arbitration under s191(5)(a).
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12 September 2013 |
| August 2013 |
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Reported
A disputed settlement agreement cannot be made a court order; interpretation disputes belong to the CCMA, not to the Labour Court.
Labour law – section 158(1)(c) read with section 158(1A) – making settlement agreements orders of court – court’s discretion and criteria (clarity, enforceability, non‑compliance) – interpretation disputes to CCMA/bargaining council under s24(8) – s24(8) applies to agreements/awards not court orders – prescription not adjudicated when not pleaded.
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28 August 2013 |
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Reported
An employee who unreasonably refuses reasonable alternative employment cannot claim severance pay under s 41(4) BCEA.
Labour law – retrenchment for operational requirements; Basic Conditions of Employment Act s 41(2) and s 41(4) – effect of unreasonable refusal of alternative employment on entitlement to severance pay; reasonableness assessed by comparing offered terms (including announced bargaining council increases) to prior terms; overtime not an entitlement for severance calculation.
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22 August 2013 |
| July 2013 |
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Condonation refused for gross delay in filing appeal record; appeal dismissed for failure to comply with court rules.
Labour law — Condonation — Strict scrutiny in LRA individual dismissal appeals — Gross and unexplained delays in filing notice of appeal and delivering appeal record — Litigant's responsibility for attorney's default — Appeal deemed withdrawn/dismissed.
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19 July 2013 |
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Reported
Labour Court lacked jurisdiction to grant reinstatement absent statutory conciliatory/arbitral referral; relief was final, not interim.
Labour law — Jurisdiction — s191 referral to conciliation/arbitration prerequisite for adjudicating dismissal disputes; s24 procedure for collective agreement disputes — Interim relief — Interim reinstatement rarely appropriate and cannot be used to bypass statutory referral requirements — Urgency — self‑created urgency and failure to institute proceedings in proper forum — Duty to advise forum — no duty where applicant legally represented — Pleadings — substance over form when assessing interim versus final relief.
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9 July 2013 |
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Whether unreliable Netstar tracking and corroborative hearsay justified upholding the CCMA award for unfair dismissal.
Labour law – CCMA arbitration award review – Sidumo reasonableness standard – reliability of vehicle/recovery tracking (Netstar) – admissibility and weight of hearsay/corroborative letters under Law of Evidence Amendment Act and s138 LRA – substantive fairness of dismissal for ghost calling.
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9 July 2013 |
| June 2013 |
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Reported
Delay alone does not bar amendment of dismissal pleadings; automatically unfair dismissal is a species of unfair dismissal.
Labour law – amendment of pleadings – discretion to allow amendment – long delay weighed against prejudice and causation of delay – interlocutory substitution of employer – automatically unfair dismissal is a species of unfair dismissal (Driveline principle) – election and prescription are triable issues – amendment allowed and matter remitted.
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26 June 2013 |
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Reported
Placement into a newly created post without meaningful consultation and without written delegation is unlawful and reviewed under s 158(1)(h) LRA.
Labour law – unilateral change to terms – placement in a new post without meaningful consultation unlawful – review under s 158(1)(h) LRA. Public Service Act – creation of posts and appointments – power vests in executive authority (Minister); delegations must be in writing. Procedural fairness – requirement to consult before transferring or placing employees; absence of written delegation renders post creation invalid.
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11 June 2013 |
| May 2013 |
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A final interdict cannot be granted on affidavit evidence where material factual disputes and credibility issues require oral evidence.
Labour law – interlocutory and final interdicts – motion proceedings – disputes of fact and Plascon‑Evans rule – inadmissibility of credibility findings on affidavits without oral evidence – picketing rules as internal remedy – costs.
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31 May 2013 |
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Reported
Deliberate insubordination justified dismissal; prior final warnings (and their cumulative effect) may be considered under Sidumo.
Labour law – review of CCMA arbitration – Sidumo reasonableness test – insubordination – seriousness and deliberateness – prior final written warning (validity and cumulative effect) – reinstatement and twelve months' remuneration – when CCMA awards are reviewable.
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31 May 2013 |
