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Citation
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Judgment date
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| May 2013 |
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Reported
Expired restraint not automatically moot where contested costs create exceptional circumstances; limited interdict appropriate and no adverse costs.
Labour law – restraint of trade – reasonableness assessed by Basson/Reddy principles and Plascon‑Evans fact‑finding; mootness and exceptional circumstances (costs); limits on relief (no order to dismiss employee); costs in Labour Court governed by law and fairness; urgency rulings generally not appealable.
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30 May 2013 |
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Whether the commissioner reasonably found insufficient evidence of employee dishonesty after conflicting versions and unreliable key testimony.
Labour law – unfair dismissal – dishonesty – onus of proof – assessment of credibility, reliability and probabilities – admission and use of disciplinary enquiry minutes – review standard (reasonable decision‑maker / SFW guidelines).
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29 May 2013 |
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Interim interdict halting disciplinary proceedings set aside because respondent failed to establish a prima facie protected disclosure under the PDA.
Protected Disclosures Act — definition and scope of "disclosure" and "protected disclosure"; requirement of good faith and particularity. Interim interdict — prerequisites: prima facie right, irreparable harm, absence of alternative remedy, balance of convenience; need for sufficient particulars in affidavits. Motion proceedings — affidavits constitute pleadings and evidence; annexures and clear factual averments are required. Appealability — interim orders with immediate and substantial effect may be appealed.
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28 May 2013 |
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Reported
s158(1)(c), read with s158(1A), allows the Labour Court to make qualifying settlement agreements orders without prior referral to the Court.
Labour law – s158(1)(c) read with s158(1A) – scope of settlement agreements that Labour Court may make orders of court; "Right to refer" – wider entitlement subject to procedural prerequisites, not strict immediately exercisable right; Interaction with s142A – omission of s142A(1)-type requirement from s158(1)(c)/(1A); Judicial discretion – Court must first ensure s158(1A) criteria met and resolve factual disputes (e.g. repudiation) before making settlement an order.
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21 May 2013 |
| April 2013 |
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30 April 2013 |
| February 2013 |
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Reported
"Benefit" under section 186(2)(a) includes contractual/statutory entitlements and discretionary advantages; discretionary refusal may be unfair.
Labour law – unfair labour practice – section 186(2)(a) LRA – meaning of "benefit" – includes contractual/statutory entitlements and advantages granted by policy or practice subject to employer discretion – CCMA jurisdiction to assess fairness of employer discretion – employer’s arbitrary or inconsistent exercise of discretion can constitute an unfair labour practice.
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21 February 2013 |
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Late appeal reinstatement refused; employer failed to prove substantive fairness after conceding procedural unfairness of retrenchment.
Civil procedure – reinstatement of lapsed appeal – explanation for late filing vs prospects of success. Labour law – dismissal for operational requirements – employer's onus to prove substantive fairness where procedural unfairness conceded. Labour law – consultation requirement in retrenchment – failure to consult and misrepresentation undermines substantive fairness. Remedy – reinstatement as primary remedy for unfair dismissal; interim earnings not deductible from reinstatement award. Costs – Rule 34 tender cannot be used on appeal where not placed before court a quo for its discretion.
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21 February 2013 |
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Reported
Applicant failed to prove a common intention to continue the loco allowance; settlement provided an all‑inclusive salary—appeal dismissed.
Rectification of settlement agreement; onus on party seeking rectification to prove common intention clearly and satisfactorily; interpretation of written agreement versus extrinsic evidence; all‑inclusive salary versus locomotion allowance; improbability of double payment as factor in contractual construction.
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21 February 2013 |
| January 2013 |
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Reported
Section 197 LRA does not apply to change of franchisee where franchisor retains core assets and no going‑concern transfer.
Labour law – section 197 LRA – Transfer of contract of employment – Whether change of franchisee constitutes transfer of a business as a going concern – Franchise arrangements distinguished from outsourcing; where franchisor retains core assets and merely replaces franchisee s197 does not apply; employee-protection versus franchisor control.
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22 January 2013 |
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Reported
Whether taking other employment while suspended effects a deemed discharge under s 17(5)(a) and ousts bargaining council jurisdiction.
Labour law; Public Service Act s 17(5)(a)(i)-(ii) – deemed discharge for unauthorised absence and assumption of other employment – operation of law versus employer acceptance; jurisdiction of bargaining council to determine unfair dismissal.
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22 January 2013 |
| December 2012 |
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Reported
Whether an instruction to an estimator to solicit work was a permissible change in work practice justifying dismissal.
Labour law – insubordination – instruction to an estimator to solicit work; change in working practice v unilateral change to terms and conditions; reasonableness of instruction; reviewability of arbitration award under Sidumo; procedural fairness and internal appeal bias.
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31 December 2012 |
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Reported
Whether hiring out trucks with drivers constitutes "transportation of goods for hire or reward" under a road‑freight bargaining council's scope.
Demarcation – bargaining council jurisdiction – interpretation of industry definition; meaning of "for hire or reward"; distinction between road‑freight (transportation of goods) and plant/vehicle hire; deference to CCMA demarcation awards; role of NEDLAC consultation under s62(9) of the LRA.
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12 December 2012 |
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Reported
Section 197 transfers employment rights but does not automatically substitute the new employer as judgment debtor; joinder and a right to be heard are required.
Labour law – s197 LRA – transfer of employment contracts and rights; statutory assignment does not automatically substitute new employer as party in existing litigation; joinder and audi alteram partem require that new employer be given opportunity to be heard on relief; no waiver where correspondence does not amount to consent to be bound.
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12 December 2012 |
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Reported
A commissioner must allow oral evidence to resolve disputed jurisdictional facts about the true employer before deciding jurisdiction.
Labour law – jurisdictional facts – identity of employer – conciliation versus jurisdictional determination – requirement to allow viva voce evidence where material disputes of fact exist – reviewability of decisions made on inadequate evidentiary basis.
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12 December 2012 |
| November 2012 |
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Reported
Non-renewal not a dismissal where employee lacked a genuine and reasonable expectation of renewal.
Labour law – Non-renewal of fixed-term contract – s186(1)(b) – two‑legged test (subjective expectation and objective reasonableness) – employee bears onus to plead material facts – jurisdictional facts reviewed on objectively justifiable grounds.
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27 November 2012 |
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Reported
Appellant's urgent interdict dismissed; affidavits wrongly struck out and recruitment lawfully permitted under Public Service Act and Regulations.
Administrative law – Labour procedure – striking out affidavits – Rule 6(15) and Rule 11 – requirement of notice; Evidence – hearsay – Law of Evidence Amendment Act s3(1) – probative value, prejudice and interests of justice; Public Service law – recruitment and transfers – Public Service Act s14 and Public Service Regulations Chapter 1 Part VII (C.2.1–C.2.7) – when advertising not required; Interim and final interdicts – requisites – clear right, injury, lack of alternative remedy; Constitutional law – unfair discrimination – need for proper pleading and reliance on listed or objectively assessed grounds.
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27 November 2012 |
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Reported
Insufficient evidence of abuse of corporate personality to pierce the veil; sister company and shareholder not jointly liable.
Labour law – unfair dismissal; corporate law – piercing the corporate veil; Companies Act s20(9); requirement of clear evidence of misuse or unconscionable abuse of juristic personality; exceptional nature of disregarding separate corporate identity; costs in employment litigation.
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8 November 2012 |
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Reported
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8 November 2012 |
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Reported
Constitutionally authorised employment-equity measures can justify non-appointment of advantaged candidates to correct representivity.
Constitutional law – s9(1) v s9(2) – affirmative-action measures under s9(2) are constitutionally authorised and integral to substantive equality; Employment Equity Act – Employment Equity Plan is a s9(2) measure; Labour law – discrimination – failure to appoint a highest-rated candidate justified where appointment would undermine representivity targets; Administrative discretion – National Commissioner may decline to fill posts per National Instruction.
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2 November 2012 |
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Reported
Arbitral award set aside where commissioner wrongly excluded donor affidavit and relied on hearsay; dismissal found substantively unfair, eight months' compensation awarded.
Labour law; review of arbitration awards under s145 LRA - Sidumo reasonableness standard; admissibility of affidavit and hearsay in arbitration; misappropriation and shrinkage jurisprudence; substantive fairness of dismissal; remedy where continued employment intolerable.
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1 November 2012 |
| October 2012 |
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No general duty to disclose reasons for prior dismissal in a CV; non-disclosure not automatically misrepresentation or fatal to trust.
Labour law – Recruitment and disclosure – No general duty to disclose reasons for prior dismissal in CV; contractual terms construe scope of disclosure; non-disclosure not necessarily misrepresentation; absence of dishonesty relevant to trust breakdown and remedy; reviewability where commissioner misapplies legal test.
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30 October 2012 |
| September 2012 |
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24 September 2012 |
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Reported
Deeming provision in the Public Service Act operates by law; unauthorised absence for over a month results in deemed dismissal.
Public Service Act s17(5)(a)(i) – deeming provision – operates by operation of law once statutory conditions met – not a discretionary administrative decision; justiciable factual enquiry whether absence was without permission; precautionary suspension does not prevent operation of deeming; minister’s refusal to reinstate reviewable only on ordinary factual/legality grounds; absence from duty during suspension incompatible with continued employment for period required to resume duties.
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21 September 2012 |
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Reported
An employer’s wage inducement to non-members can constitute prohibited anti-union discrimination under section 5 of the LRA.
Labour law – Freedom of association – Anti-union discrimination – s5(2)(c)(i) and s5(3) LRA – Plural bargaining and permissible differentiation – Remedies and quantification of prejudice under s158 LRA.
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17 September 2012 |
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Reported
Employer’s failure to rebut affidavit allegations admitted performance; damages for breached fixed-term contracts must reflect mitigation and contingencies.
Labour law – Fixed-term employment – Summary termination during probation – Application proceedings and factual disputes on affidavit – Plascon-Evans approach – Implied warranty of competence – Measure of damages for breach of fixed-term contract – mitigation, collateral benefits and contingency discounting – s77(3)/77A BCEA jurisdiction to make reasonable determinations.
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7 September 2012 |
| August 2012 |
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Reported
Unlawful public promotions may be set aside despite delay after a proportionality balancing of legality, prejudice and public interest.
• Administrative law – review of appointments – validity assessed against advertised requirements – supervisory experience requirement.• Administrative law – legality v certainty – courts have discretion whether to set aside unlawful administrative acts (s172(1)(b) Constitution; s8 PAJA).• Delay and prescription – unreasonable delay is a discretionary factor but does not automatically bar review; Prescription Act inapplicable to such review.• Remedy – proportionality balancing of public interest, finality and prejudice to determine whether to set aside invalid promotions.• Labour law – protected promotion via settlement/arbitration can be impugned if founded on an unlawful agreement.
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29 August 2012 |
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Reported
Employer failed to prove meaningful consultation and fair selection in retrenchment; reinstatement ordered.
Labour law — Retrenchment for operational requirements — Employer's duty to engage in meaningful consultation (s189/s189A) — Selection criteria (s189(7)) — Evidentiary onus on employer to prove fairness — Use and proof of objective selection tools (predictive matching/PMS) — Remedy: reinstatement vs compensation (s193).
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29 August 2012 |
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Reported
Whether the applicant could pierce the corporate veil to treat subcontractors as the respondent's employees — appeal dismissed.
Labour law; corporate personality – piercing the corporate veil – fraud, impropriety or facade required; subcontractors and separate entities; burden of proof on probabilities; adverse inference from silence; punitive costs for disclosure to competitor.
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20 August 2012 |
| July 2012 |
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A university council alone may approve retrenchment policies; an unsigned, unauthorised policy was invalid and statutorily governed severance applied.
Administrative and higher‑education law – governance vs executive functions; delegation of discretionary governance powers – restrictive interpretation; Plascon‑Evans on disputes of fact in final relief applications; validity of internally drafted retrenchment/severance policy; application of BCEA where institutional policy invalid.
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25 July 2012 |
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Reported
Commissioner’s reinstatement for absence to attend sangoma training was reasonable; BCEA s23 did not apply and cultural accommodation may be required.
Labour law — review standard (Sidumo) — whether CCMA award is one a reasonable decision‑maker could not reach; cultural/religious practices and reasonable accommodation in workplace; BCEA s23 (medical certificates) inapplicable where unpaid leave sought; disciplinary absenteeism and necessity defence.
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24 July 2012 |
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Reported
Removal by a client of labour‑brokered employees does not automatically constitute dismissal by the broker absent a causal nexus or employer action.
Labour law – s198(2) placements – removal by client not automatically a dismissal by labour broker; need causal nexus between broker and termination; broker may seek remedies against client but is not automatically liable; employee misconduct and reasonableness of client measures relevant to dismissal inquiry.
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20 July 2012 |
| June 2012 |
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Reported
Employee tacitly accepted continued employment beyond retirement age; employer validly determined retirement date by notice, dismissal not automatically unfair.
Labour law – automatically unfair dismissal – age – s187(1)(f) and s187(2)(b) – effect of tacit agreement to continue employment beyond agreed retirement age and employer’s right to determine retirement date by notice.
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22 June 2012 |
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Appellant's unexplained, prolonged failure to lodge the appeal record warranted refusal to condone and reinstate the appeal.
Practice and procedure – appeals – Rule 5(17) – failure to lodge record timeously causes appeal to lapse. Applications for condonation and reinstatement – factors: extent of delay, explanation, prospects of success, prejudice and interests of justice. Non-compliance with Rules – respondent’s consent or application to Judge President required; reckless disregard of Rules warrants refusal. Costs – unsuccessful condonation application ordered to pay costs.
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22 June 2012 |
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Reported
Commencing duties without required written permission did not create employment; bargaining council lacked jurisdiction.
Labour law – jurisdiction – Bargaining Council’s jurisdiction depends on existence of employer-employee relationship for unfair labour practice claims. Employment law – conditional appointment – commencing duties without required written permission does not of itself create an employment relationship. Evidence/procedure – commissioner may decide on jurisdiction on papers where parties decline to lead oral evidence. Agency/waiver/estoppel – burden on applicant to plead and prove authority or waiver to remove suspensive condition.
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22 June 2012 |
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Reported
Cross-appeal condonation refused; dismissal substantively unfair; nine months' compensation awarded; costs order varied.
Labour law – unfair dismissal – employer’s onus to prove misconduct and causation; fixed-term senior-manager contracts – reinstatement usually impracticable where renewal requires statutory authorisation and contract negates expectation of renewal; remedies – reinstatement, re-employment and compensation under sections 193–194 LRA; condonation – factors for good cause and prospects of success; costs – compliance with rule 22A required for its consequences to follow.
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15 June 2012 |
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Reported
An employee who raises a credible case of a protected disclosure shifts the burden to the employer to prove a fair, non-retaliatory dismissal.
Labour law – s192 LRA two-stage burden in dismissal disputes; Protected Disclosures Act – s8 requirements for protected disclosure to Public Protector; s187(1)(h) LRA – automatically unfair dismissal for whistleblowing; employer's duty to rebut once employee raises a credible possibility; evidentiary consequences of failing to lead disciplinary evidence.
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6 June 2012 |
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Reported
Non-disclosure of a disciplinary sanction rendered the promotion process procedurally unfair; compensation awarded where appointment causation not proved.
Labour law – promotion – procedural fairness – non-disclosure of disciplinary sanction by successful candidate – employer’s verification duties under National Instruction – causation and remedy; where applicant cannot prove but-for appointment, compensation (not promotion) is appropriate.
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1 June 2012 |
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Reported
Disclosure to the MEC/Premier was protected under the PDA; honesty and reasonable belief, not proof, determine protection.
Labour law – Protected Disclosures Act – meaning of "employer" – disclosure to MEC and Premier covered by section 6/7 – provincial MEC as employer of provincial education staff. Protected disclosures – meaning of "information", "good faith" and "reason to believe" – honesty and reasonable belief central; information may include opinion/hearsay based on some facts; no requirement of factual proof. Occupational detriment – disciplinary action for protected disclosure constitutes unfair labour practice – remedy: retrospective reinstatement and costs.
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1 June 2012 |
| May 2012 |
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Reported
Labour Court review under s158(1)(h) is ousted where a collective agreement requires arbitration of incapacity-leave disputes.
Labour law – jurisdiction of Labour Court under s158(1)(h) LRA; collective agreements (PSCBC Resolution 5/2001) govern incapacity/temporary incapacity leave; where s24/section 157(5) requires arbitration, Labour Court review jurisdiction is ousted; Chirwa and Gcaba context for public-servant review limits.
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15 May 2012 |
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Commissioner’s failure to consider material conflict‑of‑interest evidence rendered the CCMA award unreasonable; appeal dismissed.
Labour law – CCMA award review – failure to apply mind to material facts; conflict‑of‑interest disclosure (beneficiary in client’s will); gross irregularity in arbitration; standard of review under s145 LRA – reasonableness (process and outcome).
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4 May 2012 |
| April 2012 |
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Reported
A precautionary suspension is lawful if there is prima facie misconduct, risk to investigation, and a fair opportunity to make representations.
Labour law – Precautionary suspension under SMS Handbook – Prima facie misconduct and risk to investigation; Procedural fairness – audi alteram partem in precautionary suspensions located in LRA/unfair labour practice jurisdiction; Written representations may suffice where suspension is on full pay and limited duration; Declaratory relief and interdict inappropriate where arbitration/CCMA remedies available.
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25 April 2012 |
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A predecided redundancy and reliance on unproven misconduct made the retrenchment procedurally and substantively unfair.
Labour law – retrenchment and redundancy – consultation – pre-determined decision renders consultation a sham; selection must be free of unproven allegations; procedural and substantive fairness required in operational dismissals; compensation for unfair dismissal.
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25 April 2012 |
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Reported
Section 74 arbitration may produce awards with fiscal effects notwithstanding budget regulations, subject to parliamentary oversight.
Labour law – Review of arbitration award – Sidumo reasonableness standard – Arbitration under s74 LRA – Disputes in essential services – Effect of Public Service Regulation V.C.5 (budget availability) on arbitrator’s powers – Interest v rights disputes – Parliamentary tabling of awards with fiscal implications (s74(5)).
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20 April 2012 |
| March 2012 |
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Reported
Arbitration clauses that permit less favourable treatment or waive collective agreements are invalid; bargaining council jurisdiction prevails.
Collective agreements – primacy over individual contracts – s199 LRA prohibits contracts permitting less favourable treatment or waiving collective agreement provisions; arbitration clauses that bypass prescribed conciliation or create cost risks are invalid; bargaining council jurisdiction not ousted by such invalid clauses.
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20 March 2012 |
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Reported
Share acquisition is not a section 197 transfer; dismissal was substantively fair but procedurally unfair, awarding compensation.
Labour law – dismissal – automatic unfairness – transfer of business as a going concern under s197 – share acquisition does not constitute transfer as going concern. Labour law – operational requirements – retrenchment following post-acquisition integration – substantive fairness upheld. Labour law – procedural fairness – consultation obligations under s189 – failure to consult renders dismissal procedurally unfair. Remedy – procedurally unfair but substantively fair dismissal attracts compensation; partial costs awarded.
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6 March 2012 |
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Reported
Arbitrator lawfully interpreted recognition clause using contextual evidence; award upheld and appeal dismissed.
Labour law – collective recognition agreements – interpretation of threshold/recognition clause; Arbitrability – private arbitration jurisdiction to interpret collective agreement clauses; Evidence – admissibility of surrounding circumstances and pre-contractual communications in contract interpretation; Review – s33 Arbitration Act: excess of powers/gross irregularity not established where pleadings and conduct allowed contextual enquiry.
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6 March 2012 |
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Reported
Arbitrator correctly found unauthorised media misconduct, but dismissal was an excessive sanction and was replaced by reinstatement and final warning.
Labour law – arbitration de novo – commissioner may consider all material to identify real dispute; Review standard – Sidumo reasonableness test; Misconduct – unauthorised media communication can prejudice administration (Reg 20(f)) and breach media procedure (Reg 20(i)); Sanction – dismissal may be unfair where evidence does not support disobedience or intolerability of continued employment.
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2 March 2012 |
| February 2012 |
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Reported
A CCMA award was set aside because the commissioner ignored material evidence; dismissal for ICU supervisory negligence was fair.
Labour law – CCMA awards – review on constitutional reasonableness standard (Sidumo) – failure to take into account material facts and documents – supervisory negligence in healthcare – appropriateness of dismissal as sanction.
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28 February 2012 |
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Reported
Transitional LRA and pre‑1996 180‑day referral rule barred Labour Court jurisdiction over a 1996 promotion dispute.
Labour law – Transitional provisions (Schedule 7 Part E) – disputes arising before commencement of current LRA – application of Labour Relations Act 28 of 1956 – 180‑day time limit to refer unfair labour practice disputes to industrial council or conciliation board – jurisdiction of bargaining council, CCMA and Labour Court; requirement of conciliation as jurisdictional precondition.
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28 February 2012 |
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Reported
Labour Court may interdict uncompleted disciplinary enquiries in exceptional cases; this appeal was academic and dismissed.
Labour law – disciplinary enquiries – jurisdiction of Labour Court to interdict uncompleted disciplinary processes in exceptional cases; mootness and s21A(1) – collective agreement governing disciplinary procedure and available remedies (bargaining council referral, exemption); Booysen precedent affirmed.
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7 February 2012 |
