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Citation
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Judgment date
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| December 2011 |
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Reported
The respondent may pursue an EEA discrimination claim despite earlier LRA unfair‑dismissal arbitration.
Res judicata — idem actor, idem reus, eadem res, eadem causa petendi — distinction between unfair dismissal under LRA and unfair discrimination under EEA; arbitration award on early termination does not bar subsequent EEA appointment discrimination claim.
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7 December 2011 |
| November 2011 |
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Reported
A purposive, fairness-based interpretation may include shift rest days as "working days" for calculating annual leave.
Labour law – Bargaining council arbitration – Review under s145 LRA – Interpretation of collective agreement – Meaning of "working day" for shift-workers' annual leave – Purposive interpretation and fairness/equity considerations permissible – Reasonableness standard (Sidumo; CUSA).
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29 November 2011 |
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Reported
A reasonable expectation of permanent employment does not amount to dismissal under s186(1)(b) for non-renewal of fixed-term contracts.
Labour law – s186(1)(b) LRA – reasonable expectation – whether expectation of permanent (indefinite) employment falls within "renewal of a fixed-term contract" – interpretation of statutory wording and jurisdiction of CCMA.
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4 November 2011 |
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Reported
A clarified transport-allowance demand not covered by the collective-agreement prohibition, and statutory s64 compliance yielded a protected strike; appeal dismissed.
* Labour law – collective agreements – effect of 'no further claims' clause (A.8.3) on permissible demands – distinction between impermissible substantive wage claims and permissible company-level proposals. * Labour law – strikes – interplay between collective-agreement pre-strike procedures and statutory section 64 procedure; compliance with either can produce a protected strike. * Collective bargaining – facilitation and arbitration for allegations of bad faith do not necessarily preclude strike action where dispute is otherwise unregulated. * Interim relief – employer must establish prima facie right to interdict; failure where union complied with s64 and demand not covered by prohibition.
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2 November 2011 |
| October 2011 |
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Reported
Placement Committee consensus under a collective agreement binds union members; individual employees may not unilaterally refer placements to arbitration.
Collective agreement – placement policy – interpretation of "parties" in dispute procedure – Placement Committee consensus binding on union members – arbitration only where Placement Committee fails to reach agreement – collective bargaining principle.
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28 October 2011 |
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Reinstatement is the primary remedy for unfair dismissal but back pay may be limited where reinstatement unduly burdens the employer.
Labour law – Unfair dismissal – Reinstatement is the primary remedy under section 193 LRA – Court must exercise discretion on retrospectivity fairly balancing employer's financial capacity and employee's loss – Employer should lead evidence on impracticability but court may consider relevant factors on record – Delay does not automatically preclude retrospective reinstatement.
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25 October 2011 |
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Reported
Repeated unwelcome sexual propositions by a senior manager constituted sexual harassment; commissioner’s narrow inquiry was unreasonable.
* Labour law – unfair dismissal – sexual harassment – definition: "unwelcome conduct of a sexual nature" – repeated unwelcome conduct despite being declined suffices. * Procedural fairness – commissioner’s duties – failure to take material facts into account and unduly narrowing the inquiry renders award unreasonable under Sidumo. * Evidence – similar-fact evidence – exceptional admissibility to show pattern and sanction; exclusion may be reviewable irregularity. * Sanction – senior manager’s persistent propositions to subordinate may justify dismissal.
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20 October 2011 |
| September 2011 |
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Reported
Dismissal for wearing dreadlocks was automatically unfair as discriminatory on grounds of religion, culture and gender.
Labour law – automatically unfair dismissal – section 187(1)(f) LRA – Dress Code prohibiting "Rasta man" hairstyles – direct and indirect discrimination on grounds of religion, culture and gender – objective causation – justification and reasonable accommodation – inherent job requirement (s187(2)(a)) – procedural: cross-appeal not required to uphold alternate grounds.
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27 September 2011 |
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Employer must prove criminal misconduct under Regulation 18(3) on a balance of probabilities; private defence can render dismissal unfair.
Labour law – review of bargaining‑council arbitration – Sidumo reasonableness test; Police discipline – Regulation 18(3) (act constituting an offence) requires employer to prove criminality on balance of probabilities; private defence and putative private defence – application and onus in disciplinary proceedings.
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26 September 2011 |
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Reported
Dismissal based on unproven immigration suspicion was procedurally and substantively unfair; reinstatement substituted with twelve months' compensation.
Labour law – Unfair dismissal – Procedural fairness – necessity of disciplinary enquiry before dismissal based on alleged illegal immigration; Immigration law interaction – suspicion by immigration officer and High Court remarks do not equate to statutory declaration or deportation order; Review – Sidumo reasonableness standard; Remedy – reinstatement vs compensation where trust relationship irretrievably broken; Maximum compensation (12 months) under section 194(1) LRA.
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15 September 2011 |
| August 2011 |
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Reported
Appeal dismissed as moot; Court declined to decide whether s64(4)/(5) LRA permits interdictory relief for unilateral roster changes.
* Labour law – unilateral variation of terms and conditions – shift rostering and increased hours – allegation of unilateral change under s64(4) LRA.
* Mootness – courts should not decide abstract or academic disputes; requires a live controversy with practical effect.
* Remedy – whether Labour Court may grant interdictory relief under ss64(4) and 64(5) LRA (declined to decide due to mootness).
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25 August 2011 |
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Reported
Articulating an additional demand during a protected strike does not automatically render the strike unprotected; summary dismissals were automatically unfair.
* Labour law – protected strike – whether introduction during strike of a new demand not referred to conciliation converts protected strike into unprotected strike.
* Labour law – automatically unfair dismissal – section 187(1)(a) LRA – summary dismissal for participation in protected strike.
* Procedural fairness – employer's duty to consult union and afford reasonable time before treating a strike as unprotected and dismissing employees.
* Remedial discretion – assessment of just and equitable compensation for automatically unfair dismissal under section 194(3) LRA.
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3 August 2011 |
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Reported
Employer’s dismissal for material falsehood in CV upheld where commissioner failed to properly evaluate evidence.
Labour law – review of arbitration award – commissioner’s failure to evaluate evidence – decision a reasonable decision‑maker could not reach; Misrepresentation in job application – materiality of false qualification – dismissal fair; Condonation – delay caused by former attorneys – interest of justice may justify reinstatement of appeal.
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3 August 2011 |
| July 2011 |
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Reported
A commissioner’s unreasonable acceptance of implausible CCTV explanations made the arbitration award reviewable and dismissal fair.
* Labour law – review of CCMA arbitration award – reasonableness standard (Sidumo) – whether commissioner’s findings were ones a reasonable decision‑maker could not reach.
* Evidence – CCTV/DVD footage as prima facie proof of concealment – shifting evidential burden to employee to give credible exculpatory explanation (Federal Cold Storage principle).
* Procedural fairness – review grounds include commissioner’s gross irregularity or unreasonable factual findings under s145 LRA.
* Sanction – relevance of long service and clean record when misconduct involves gross dishonesty.
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26 July 2011 |
| June 2011 |
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Reported
Dismissal for applicant's derogatory remarks was disproportionate; award set aside and applicant reinstated.
Disciplinary procedure – time limits in departmental code – whether clause 7.4 creates an absolute bar; Misconduct – misuse of state vehicle; failure to return vehicle; absence without leave; indecent/derogatory remarks to supervisor; Fairness of sanction – proportionality of dismissal for intemperate remarks; Review – arbitral award unreasonable where commissioner misdirected on nature/seriousness of offence.
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29 June 2011 |
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Reported
Retrenchment without a negotiated s189 consultation procedure was procedurally unfair despite a later recognition agreement.
Collective bargaining; recognition agreement — does not automatically discharge s189 consultation obligations where no retrenchment procedure negotiated; section 189(1) consultation hierarchy; effect of existing collective agreement; procedural fairness of retrenchment and re-employment on inferior terms.
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20 June 2011 |
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Reported
Condonation for late reconstruction of arbitration record refused for inadequate explanation and poor prospects of success.
Labour law – Condonation for late filing of reconstructed arbitration record – Application of ordinary condonation principles – Adequacy of explanation for delay – Prospects of success on review – Hearsay evidence and failure to call private investigator – Arbitration award made an order of the Labour Court (s158(1)(c) LRA).
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6 June 2011 |
| May 2011 |
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Reported
An appeal does not automatically suspend a registrar's deregistration; suspension requires judicially exercised balancing of competing interests.
* Labour law – deregistration of trade unions – section 106 LRA – effect of noting an appeal on execution of deregistration decision – no automatic suspension for administrative deregistration; discretionary stay required. * Procedure – Rule 11(3)/(4) Labour Court Rules – courts empowered to adopt procedures to determine suspension pending appeal. * Interim relief – factors: prejudice, prospects of success, public interest in protecting members and union funds, frivolous/vexatious appeals.
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30 May 2011 |
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Reported
Arbitration awarding reinstatement for non-renewal of fixed-term contract was reasonable; Labour Court erred in setting it aside for non-joinder.
Labour law – fixed-term contracts – dismissal by non-renewal – reasonable/legitimate expectation to renew; Review – non-joinder not a ground where proposed party had no direct and substantial interest; Administrative law – Sidumo reasonableness standard applied; Immigration Act (s19(2)) does not preclude formation of legitimate expectation to re-employment where work permit previously granted.
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13 May 2011 |
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An unprotected strike does not automatically justify dismissal; employer unlawful pay deductions and mitigating factors may render dismissal unfair.
• Labour law – strike – statutory definition under s213 – concerted refusal to work to obtain redress qualifies as a strike.
• Labour law – protected vs unprotected strike – non‑compliance with s64 renders strike unprotected but does not automatically justify dismissal.
• Code of Good Practice (Schedule 8), item 6(1) – factors to consider when assessing fairness of dismissal for participation in unprotected strike.
• Review standard – Sidumo: award must be one a reasonable decision‑maker could have reached; failure to weigh relevant mitigating factors renders award unreasonable.
• Employer conduct – unilateral unlawful deduction of wages is a significant mitigating factor against dismissal.
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1 May 2011 |
| April 2011 |
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Reported
Under s197A an insolvent employer's going‑concern transfer substitutes the new employer in existing employment contracts, including reinstatement obligations.
Labour law — transfer of business as a going concern; section 197A — transfer in insolvency; automatic substitution of new employer for contracts existing immediately before provisional winding‑up; survival and effect of reinstatement orders; new employer's liability for post‑transfer remuneration but not prior wrongful acts.
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18 April 2011 |
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Commissioner’s arbitration upheld: dismissal for dishonest misuse of salary and bonuses was procedurally and substantively fair.
Labour law – arbitration award – review under s145 LRA – allegations of commissioner misconduct, gross irregularity and bias – standard of review: reasonableness. Employment law – disciplinary procedure – deviations from internal code, denial of internal appeal, presence of director and legal advice – procedural fairness and prejudice. Employment law – substantive misconduct – unauthorised salary increases, undeclared duplicate bonuses, manipulation of overpayments and misrepresentation. Fiduciary duties – senior employee/director’s duty of loyalty and breach of trust as basis for dismissal.
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1 April 2011 |
| March 2011 |
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Reported
A one‑day secondary strike excluding essential services was held reasonable and protected under s 66(2)(c), appeal dismissed.
* Labour law – Secondary strikes – s 66(2)(c) – proportionality test: reasonableness of nature and extent of secondary strike weighed against possible direct or indirect effect on primary employer’s business. * No requirement that secondary employer must be able to influence primary employer. * Possible (not actual) harm suffices. * One‑day strike excluding essential services held reasonable and protected.
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29 March 2011 |
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The applicant's dismissal application succeeded due to the respondent's inordinate delay and inadequate explanation.
Labour law – dismissal of referral for inordinate delay; delay in prosecution; adequacy of explanation (departure of officials; lack of records); factors for striking out/dismissal (length, explanation, prejudice); condonation unnecessary once dismissal granted; costs awarded to applicant for dismissal application.
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22 March 2011 |
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Reported
A common mistake about expanding judicial review did not void the arbitration submission; an isolated arbitrator misconduct did not overturn the award.
Arbitration law – validity of submission to private arbitration – common error/supposition – materiality and severability of mistaken clause; Arbitration review – limits of parties' ability to contractually expand judicial review – courts apply statutory grounds (s33) not bespoke "rational and justifiable" standard; Procedural fairness – arbitrator misconduct for failing to apply mind to particular charge – partial defect but award separable; Remittal – discretionary refusal where remittal would cause prejudice/delay and not alter substantive outcome.
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9 March 2011 |
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Applicant failed to prove contempt or unfair suspension; suspension upheld due to ongoing investigation and nondisclosure.
Labour law – urgent relief – requirements for setting aside suspension; Contempt of court – construction of court records and enforceability of agreements; Protected disclosures – employer’s right to investigate and employee’s obligation to use appropriate channels; Perjury allegations – insufficiency of affidavit evidence; Employment restructuring – remedies for failure to secure an agreed post.
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1 March 2011 |
| October 2010 |
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Reported
The Labour Court may, in exceptional cases, grant interdictory relief to halt pending disciplinary hearings under the LRA.
* Labour law – jurisdiction – Sections 157 and 158 LRA – Labour Court empowered to grant urgent/interdictory relief in pending disciplinary proceedings in exceptional cases.
* Administrative and constitutional rights – interplay with labour jurisdiction – relief available where failure to intervene would cause grave injustice.
* Review/interdict – internal disciplinary enquiries – exceptional circumstances required before halting incomplete disciplinary processes.
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1 October 2010 |
| September 2010 |
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Reported
Strike lawful over undoing unilateral wage reductions but prohibited for coupling pay and unproven provident fund change.
Labour law – Right to strike – Limitations under s 65 LRA – Collective Agreement (clause 50) requiring substantive wage disputes to be dealt with at Bargaining Council – Distinction between restoring unilateral wage reductions and demands for increased remuneration – Severability of strike demands – Lack of factual basis defeats demand relating to provident fund administration.
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23 September 2010 |
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Reported
Commissioner’s credibility‑based award stands unless it is one no reasonable decision‑maker could reach.
Labour law – Review under s145 LRA – Sidumo reasonableness standard – Credibility assessments and factual findings of commissioner – Whether decision is one a reasonable decision‑maker could not reach – Scope of appellate review of CCMA awards.
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16 September 2010 |
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Reported
Dismissals during collective misconduct are fair if the employer disciplines only those it can prove committed the misconduct.
Labour law – Collective misconduct – Identification by photographic evidence – Employer may discipline only those it can prove committed misconduct; selective discipline unlawful only if arbitrary or discriminatory. Procedural and substantive fairness of dismissals; review standard for arbitration awards.
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3 September 2010 |
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Reported
Only SAPS "members" (or PSA employees validly deemed members) are prohibited from striking as part of the essential policing service.
Labour law – essential service – meaning of "engaged in an essential service" – policing functions under SAPS Act – members vs Public Service Act employees – Ministerial designation (s29) of deemed members.
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3 September 2010 |
| August 2010 |
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Reported
The CCMA may resolve disputes between the applicant and respondent over failure to conclude a minimum service agreement.
Labour law – Essential services – Minimum service agreements – Whether failure to conclude an MSA may be referred to the CCMA for conciliation and arbitration under s74; Interaction of ss65,70,72 and 74 of the LRA; ESC powers to ratify collective agreements vs CCMA arbitration; Right to strike – limitations must be express in statute.
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24 August 2010 |
| July 2010 |
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Reported
Whether "gross pay" in the Ministerial determination includes overtime for exclusion from Sunday-pay protections.
BCEA – s 16(1) (Sunday pay) – s 6(3) Ministerial determination – meaning of "gross pay" – whether overtime included – purposive interpretation – definitions ("wage") and payment provisions (ss 1, 32, 35) – exclusion of overtime to avoid uncertainty and absurdity.
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23 July 2010 |
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Reported
Members of Parliament do not fall within the PDA; remaining unfair dismissal disputes must be referred to arbitration.
Protected Disclosures Act — definition of "employee" and "employer" — Members of Parliament excluded from LRA/PDA employment definitions; automatically unfair dismissal under s 187(1)(h) LRA requires PDA protection; jurisdiction — Labour Court must stay proceedings and refer disputes for arbitration where PDA-based cause of action fails.
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21 July 2010 |
| June 2010 |
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Reported
Commissioner’s finding of sexual harassment upheld, but re-employment sanction was unreasonable; dismissal found fair.
Labour law; sexual harassment; procedural fairness of disciplinary process v. conciliation; reasonableness of CCMA sanction; review standard — whether commissioner’s decision was one a reasonable commissioner could reach.
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4 June 2010 |
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Reported
A shareholder’s removal triggering contractual automatic termination can constitute ‘dismissal’; such clauses cannot oust LRA protections.
Labour law – definition of dismissal – s186(1)(a) – shareholder removal of director triggering automatic contract termination can amount to dismissal; contractual ‘automatic termination’ clauses that limit statutory unfair-dismissal protections are impermissible and displaceable only on clear proof; causation and agency considered in corporate context.
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4 June 2010 |
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Reported
Dismissal is fair where the applicant’s proven dishonesty destroys trust and dismissal is justified for operational risk management.
Labour law – unfair dismissal – standard of review of arbitration awards (Sidumo) – dishonesty and trust relationship – operational‑risk justification for dismissal – relevance of long service and inconsistent explanations.
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2 June 2010 |
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Derivative misconduct requires proof employee knew of wrongdoing and unjustifiably withheld disclosure; many dismissals were unfair.
Labour law – dismissal – substantive and procedural fairness; derivative misconduct – requirement that employee knew or could have acquired knowledge and unjustifiably failed to disclose; inferences from silence, refusal to assist or to undergo polygraph; evidentiary weight of admissions and timing of employment; appropriate remedy where reinstatement impracticable (12 months’ compensation).
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2 June 2010 |
| May 2010 |
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Section 23 applies to persons in unlawful work; CCMA has jurisdiction but remedies must not entrench or facilitate criminality.
Labour law – constitutional right to fair labour practices – scope of "everyone" in section 23 – application to persons engaged in criminalised work – limits of ex turpi causa and public policy – availability of tailored remedies – jurisdiction of CCMA – organisational rights cannot be used to further unlawful activity.
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28 May 2010 |
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Reported
A restraint‑of‑trade proposal and a bluff about dismissal do not constitute constructive dismissal without objective intolerability.
Labour law – Constructive dismissal – s186(1)(e) LRA – Onus on employee to show employer made continued employment intolerable – Restraint of trade introduced for legitimate commercial reasons – Threat or bluff to secure signatures insufficient absent objective intolerability.
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11 May 2010 |
| March 2010 |
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Reported
The appellant’s arbitrator reasonably found the respondents’ dismissals for team misconduct to be substantively and procedurally fair.
Labour law – dismissal for stock loss – team/collective misconduct – admissibility of electronic records and hearsay in arbitration – Sidumo reasonableness standard for review – procedural fairness of in absentia disciplinary hearings – s138 LRA arbitration informality.
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17 March 2010 |
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Reported
Incarceration can constitute operational incapacity making dismissal substantively fair, but procedural unfairness warranted six months' compensation.
Labour law – incapacity – operational incapacity may include imprisonment; substantive fairness of dismissal for prolonged incarceration; procedural fairness and post‑dismissal hearings; remedies under s194 LRA (compensation).
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12 March 2010 |
| January 2010 |
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Reported
Rejection of a consensual alternative sanction binds employees; dismissal for proven sexual harassment can be substantively fair.
Labour law – arbitration award review – reasonableness standard; sexual harassment – employer duty to maintain harassment‑free workplace; disciplinary code – consensual alternative sanctions and employee election; sanction and remedy – limits on court substituting sanctions; reinstatement without consent conflicts with collective agreement.
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29 January 2010 |
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Reported
Acting municipal manager may lawfully implement retrenchments under the Systems Act; MEC directives are not binding.
Labour law – retrenchment for operational requirements; authority of municipal manager under Systems Act ss55,66,67; s106 MEC directives not statutory constraints; consultation obligations under s189 LRA; effect of settlement agreements and union non-participation; LIFO selection criterion.
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29 January 2010 |
| November 2009 |
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Reported
Ongoing discriminatory pay practices are continuous acts, so CCMA jurisdiction is not lost by delay; review dismissed.
Labour law – unfair labour practice and unfair discrimination – s191(5) LRA time limits – ongoing or repetitive discriminatory pay practices constituting continuous acts – jurisdiction of CCMA to entertain timeous referrals; condonation – requirement to apply promptly; review of CCMA rulings and certificate of outcome.
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18 November 2009 |
| October 2009 |
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Reported
Section 197 may apply to second‑generation transfers on termination of an outsourcing agreement; purposive, constitutional interpretation required.
Labour law – Section 197 LRA – Transfer of business as a going concern – Applicability to second-generation transfers where outsourced services revert to the original employer or are re‑contracted – Purposive and constitutionally informed interpretation of "transfer" – Literal meaning of "by" rejected if it defeats statutory purpose.
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9 October 2009 |
| September 2009 |
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Condonation refused for late filing of appeal record due to flagrant rule breaches and inadequate explanation.
Labour Appeal Court — condonation for late filing of appeal record — Rule 5(8) and Rule 5(17) compliance — defective application lacking notice of motion — transcription delays insufficient explanation — prospects of success must be pleaded — attorney negligence not an automatic excuse.
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18 September 2009 |
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Reported
Employer’s failure to re-invite the union and use of FIFO rendered the retrenchments procedurally and substantively unfair.
* Labour law – retrenchment – procedural fairness – employer’s duty to provide relevant financial information and to re-invite a union that suspended participation; * Labour law – retrenchment – selection criteria – FIFO not fair and objective where not agreed and open to abuse; * Remedy – unfair retrenchment entitles reinstatement, employer may conduct fresh fair retrenchment if necessary.
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2 September 2009 |
| August 2009 |
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The applicant’s dismissal for representing a colleague and lodging grievances was automatically unfair; 24 months' compensation awarded.
Labour law – automatically unfair dismissal – s187(1)(d) LRA – victimisation for representing a co‑employee and lodging grievances; employee entitlement to fellow‑employee representation (Code of Good Practice); evidential burden under Kroukam – employee must raise credible possibility, employer to rebut; maximum compensation and costs awarded.
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28 August 2009 |
| June 2009 |
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A transport subsidy demand is a wages/conditions issue and barred from strike by existing collective agreements.
Labour law – collective agreements and peace clauses – whether a transport subsidy/allowance is a wages and conditions of employment issue – effect on right to strike under s65(1) of the LRA – relevance of certificate of non-resolution issued under s135(5).
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19 June 2009 |
