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Citation
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Judgment date
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| June 2009 |
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Reported
Compensation for occupational detriment from protected disclosures must be just and equitable, remuneration serving as a statutory cap rather than the automatic measure.
Protected disclosures – occupational detriment under PDA – deemed unfair labour practice under LRA – section 194(4) compensation must be just and equitable and is capped at 12 months' remuneration; remuneration is a cap not the measure – quantification considers patrimonial losses and solatium factors (humiliation, publication, employer conduct, protraction) – costs including senior counsel recoverable.
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2 June 2009 |
| May 2009 |
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Whether dismissal for medical incapacity under a DMA was procedurally and substantively fair.
Labour law; medical incapacity dismissals; collective Disability Management Agreement (DMA); categorisation and re‑categorisation procedures; joint committee functions; procedural fairness; Sidumo standard of review; reasonableness of arbitration award.
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18 May 2009 |
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Reported
Non‑union employees in the same bargaining unit may join a union‑called strike if the union complied with s64 pre‑strike procedures.
Labour law – right to strike – s64(1) LRA – scope and content of strike notice – purposive construction – whether non‑union employees in same bargaining unit may join union‑called strike without separate conciliation or notice – evidentiary burden to prove union membership under union constitution – automatic unfair dismissal for participation in protected strike.
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14 May 2009 |
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Reported
Labour Court cannot set aside an arbitration award not challenged in the papers; alternative relief and joinder requirements must be respected.
Labour law – arbitration awards – s158(1)(c) LRA – limits on making awards orders of court; alternative relief – relief limited by pleadings and papers; joinder – necessity to join arbitrator/ bargaining council where they have direct interest; conditional reinstatement – effect of failure to fulfil condition.
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8 May 2009 |
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Reported
Gross dishonesty by an employee in a payroll role rendered dismissal both substantively and procedurally fair; arbitration award set aside.
Labour law – dismissal for dishonesty – time-sheet fraud by employee in position of trust – gross dishonesty may render continued employment intolerable. Review of arbitration award – whether decision a reasonable decision‑maker could not reach (Sidumo standard) – importance of considering totality of evidence including admissions. Procedural fairness – ambiguous charge sheet and missing original documents do not automatically vitiate process where hearing de novo and overall fairness established. Consolidation – related appeals with identical records may be consolidated for efficiency.
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8 May 2009 |
| March 2009 |
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Reported
Genuine, reasonable reinstatement offers may justify denying compensation for an unfair dismissal.
Labour law – unfair dismissal – remedies under s193(1)(c) and s194(1) of the LRA – distinction between awarding compensation (value judgment; appellate court may substitute its view) and fixing amount (narrow discretion) – effect of employer’s genuine reasonable offers of reinstatement – refusal of compensation where employee unreasonably rejects reinstatement.
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26 March 2009 |
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Reported
An agreed 'effective date' cannot displace the actual transfer date for s197; dismissal connected to a transfer is automatically unfair.
Labour law – Transfer of business (s197) – date of transfer is factual moment transfer occurs (when suspensive conditions fulfilled), not merely 'effective date' agreed between parties; dismissal for or related to transfer automatically unfair (s187(1)(g)); evidential burden on employee to show dismissal and transaction within s197; employer must disprove transfer-related reason; compensation under s194(3) is discretionary but limited to 24 months.
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10 March 2009 |
| February 2009 |
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Labour Court erred in substituting arbitration reinstatement; reinstatement ordered as proper remedy and review dismissed.
Labour law – arbitration awards – review standard versus appeal – reinstatement as primary remedy under s193 LRA – prior disciplinary statements and trust breakdown – employer-caused delay not barring reinstatement.
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24 February 2009 |
| January 2009 |
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Employee’s refusal to sign new contract repudiated it; non‑payment lawful and resignation was not a constructive dismissal.
Employment law – change of contractual dispensation after consultation; employee’s refusal to sign = repudiation; repudiation relieves employer’s reciprocal duty to pay; constructive dismissal requires employer culpability and wrongful conduct; mere non‑payment is not automatically constructive dismissal where employee is in breach.
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13 January 2009 |
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A commissioner seized with arbitration must exercise independent discretion on merits; prior substantive rulings do not bind a succeeding commissioner.
Labour law – arbitration – scope of commissioner’s discretion under s138(1) LRA – commissioner seized with dispute must independently determine substantial merits and admissibility of evidence. Arbitration procedure – distinction between jurisdictional rulings (condonation/jurisdiction) which bind successors and substantive rulings which do not when matter is postponed to another commissioner. Review – successor commissioner’s reliance on earlier substantive ruling is reviewable and can be set aside.
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13 January 2009 |
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Labour Court upheld CCMA award of unfair dismissal compensation and dismissed employer’s review, granting conditional leave to appeal.
Labour law – unfair dismissal – CCMA award – review – commissioner’s factual findings reasonable and justifiable; employer’s failure to produce key witnesses and particulars fatal to review; selective re‑employment evidencing unfair conduct; conditional leave to appeal subject to payment of award and interest.
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8 January 2009 |
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Labour Court enforces arbitration reinstatement award as court order; reinstatement includes backpay, separate BCEA wage claims unnecessary.
Labour law — enforcement of bargaining council arbitration awards under s158(1)(c) LRA; dispute of fact in motion proceedings (Plascon-Evans test); unreasonable delay vs. Prescription Act; reinstatement orders restore contract and include backpay; jurisdiction under s77(3) BCEA vis-à-vis compliance orders.
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6 January 2009 |
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An employee cannot bypass LRA/CCMA dispute processes by recasting employment claims as BCEA or common-law causes of action.
Labour law — jurisdiction — interplay between LRA and BCEA — limits on using common-law contract and delict to bypass LRA dispute resolution; Act 40 of 2002 notice requirements against organs of state; prescription and interruption by abandoned CCMA proceedings; no independent delictual right to dignity in Labour Court.
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6 January 2009 |
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An employer breached the contractual duty of fair dealing by suspending a senior public servant without independent discretion or hearing.
Labour law – Public-sector employment – Common-law contractual duty of fair dealing – Pre-suspension hearing as procedural component; Suspension pending investigation – requirements: prima facie misconduct, objective justification to deny workplace access, and opportunity to be heard; Chirwa – does not abolish contractual remedies enforceable in civil or labour court; Separation of powers – employer must exercise independent discretion, not merely follow legislature directives.
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5 January 2009 |
| December 2008 |
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A dismissal of an application for failure to prove its case in motion proceedings can be a final judgment and bar relitigation.
Labour law – res judicata – motion proceedings – dismissal for failure to prove case on affidavits – effect as final judgment; job evaluation evidence – expert evidence required to compare posts across different organisational structures; relitigation – when plea of res judicata bars repeat proceedings.
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23 December 2008 |
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Commissioner ignored critical workplace procedure and adjudicated on an uncharged allegation; arbitration award set aside and remitted.
Labour law — review under s145 LRA — gross irregularity where Commissioner failed to consider critical workplace procedure (non‑obligation to undergo alcohol testing) and determined matter on an uncharged allegation; award set aside and remitted for rehearing.
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18 December 2008 |
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A reviewing court will not overturn an arbitrator’s interpretation absent a process defect or an irrational outcome.
Labour law – Interpretation and application of Collective Agreement – Review under s24 LRA – Standard of review: process and whether a reasonable decision‑maker could have reached the award – Disagreement with arbitrator’s interpretation not a reviewable ground. Condonation for late review where no prospects of success.
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18 December 2008 |
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An arbitrator lacked jurisdiction where the dispute concerned unilateral change to employment terms, not collective-agreement interpretation.
Labour law – Jurisdiction of bargaining council/arbitrator – Whether dispute about unilateral change to terms of employment (short time) falls under s24 (interpretation/application of collective agreement) – Effect of conciliator’s certificate and prior court proceedings on jurisdiction – Recharacterisation of disputes and nullity of awards issued without jurisdiction.
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18 December 2008 |
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Reported
No absolute right to legal representation in CCMA dismissal arbitrations; s140(1) is rational and appeal dismissed.
Labour law – CCMA arbitration – legal representation – scope of s140(1) LRA – no absolute right to counsel in misconduct/capacity dismissal arbitrations; procedural fairness – parties bound by founding papers in review proceedings; rationality/legitimacy of limitation – speedy, informal dispute resolution; PAJA and Sidumo – primacy of LRA procedure in CCMA arbitral context.
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5 December 2008 |
| November 2008 |
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Court interdicted employer deductions and ordered repayment pending resolution of OSD overpayment dispute at the PHWSBC.
Labour law – urgent interim relief – dispensation of Rule 8 time periods – interdiction of employer deductions from employees’ remuneration pending sectoral bargaining council dispute – repayment of amounts deducted – costs on attorney-and-client scale.
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15 November 2008 |
| September 2008 |
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Reported
Rule 6(7) permits enrollment for hearing but requires notice so a defaulting party can show good cause; a bar and default judgment without notice invalid.
Labour Court rules – Rule 6(7) – Directive to enroll for hearing where party defaults – Registrar must give notice to both parties and indicate enrolment under Rule 6(7) so defaulting party can show "good cause"; directive permanently barring appearance and default judgment without notice irregular and liable to be set aside.
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19 September 2008 |
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Reported
Appellant held liable under section 197 after predecessor’s business transferred as a going concern; alleged waiver ineffective.
Labour law – s197 LRA – transfer of business as a going concern – objective multi‑factor test (assets, workforce, premises, clientele, continuity) – purchase of assets from third party does not preclude transfer – alleged waiver/indemnity in settlement letter insufficient to bar enforcement of prior judgment.
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2 September 2008 |
| August 2008 |
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Reported
An applicant must exhaust the EEA’s Chapter V enforcement procedures before litigating Chapter III affirmative-action breaches in court.
Employment Equity Act – Chapter III (affirmative action) obligations – enforcement must proceed via Chapter V monitoring/enforcement procedures before court proceedings – failure to prefer a designated-group applicant does not automatically constitute unfair discrimination under s6 – s50(1)(f) does not permit bypassing Chapter V.
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21 August 2008 |
| June 2008 |
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Reported
Resignation as director does not automatically terminate employment; intention and remuneration at dismissal determine unfair dismissal and compensation.
Labour law – resignation – whether resignation from office of director constitutes resignation from employment generally – intention must be clear and unequivocal. Company law v labour law – director’s office distinct from employment; a director may also be an employee; composite offices require factual analysis. Unfair dismissal – employer’s acceptance of resignation as termination of employment where employee intended otherwise can constitute substantively unfair dismissal. Compensation – s 194 LRA requires calculation at the employee’s remuneration on the date of dismissal.
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20 June 2008 |
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Reported
Dismissal for employee theft and rule breaches in retail was substantively fair given surveillance evidence and shrinkage risk.
Labour law – dismissal for theft/dishonesty – evidentiary weight of surveillance footage and witness evidence – employer operational need to curb shrinkage – sanction appropriateness; review of arbitration awards.
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20 June 2008 |
| May 2008 |
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Reported
Whether s189A is triggered before dismissal is genuinely contemplated or only after alternatives are exhausted.
Labour law – Collective dismissals – Interpretation and interplay of ss 189 and 189A LRA – Duty to consult triggered when employer genuinely contemplates dismissal after alternatives exhausted – Splitting retrenchments to avoid s189A constitutes fraudem legis only if bona fide contemplation of larger retrenchments existed but was concealed.
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19 May 2008 |
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Reported
Registrar’s failure to give statutorily required notice and remedy opportunity rendered refusal non‑final; matter remitted for compliance.
Labour law – registration of trade unions – section 95, 96 and 111 LRA – registrar must give written reasons and 30‑day remedy period before taking final refusal – failure to comply renders decision non‑final and non‑appealable – matter to be remitted for statutory compliance.
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19 May 2008 |
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Reported
Short-term, event-specific fixed-term contracts with an express no-renewal clause negate a reasonable expectation of renewal under s186(1)(b).
Labour law – s186(1)(b) LRA – reasonable expectation of renewal of fixed-term contracts; event-specific short-term contracts; contractual exclusion clauses; authority of manager/coach to bind employer; jurisdiction of CCMA.
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12 May 2008 |
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Reported
An award of compensation after finding employer failed to prove dismissal is irrational; matter remitted for proper remedy determination.
Labour law – unfair dismissal – burden of proof – employer must prove substantive fairness; if not proved reinstatement is default remedy. Labour law – remedy – section 193(2) LRA – reinstatement, re‑employment or compensation; arbitrator must apply and give reasons when departing from reinstatement. Judicial review – section 145(4) LRA – remit versus substitution; courts should be cautious to substitute commissioner’s decision absent exceptional circumstances. Administrative law – irrationality – awarding compensation after finding employer failed to discharge onus, without reasons, is irrational.
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9 May 2008 |
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Reported
An arbitrator's refusal to award procedural-compensation stands unless it is unreasonable or tainted by a gross irregularity.
Labour law – arbitration awards – review under section 145(2) LRA – defect defined as misconduct, gross irregularity or exceeding powers; suffused by constitutional reasonableness standard (Sidumo/Carephone). Procedural fairness – compensation for procedural irregularity – application of Johnson formula and discretion to refuse compensation where fairness demands. Gross irregularity – distinction between process defects (material failure to consider evidence) and mere judgment calls; refusal to award compensation not automatically reviewable. Standard of review – courts must not lightly substitute their views for arbitrators; only set aside awards that are unreasonable or tainted by a material defect.
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8 May 2008 |
| April 2008 |
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Reported
Failure to consider employee’s proven false testimony when awarding reinstatement was a gross irregularity; reinstatement impracticable for a senior commissioner.
Labour law — CCMA arbitration award review — gross irregularity — commissioner’s failure to consider employee’s false evidence under oath when deciding relief — relevance of false evidence to remedy (not to validating substantive reason for dismissal) — s193(2)(c) LRA ‘reasonably impracticable’— senior public role and integrity — reinstatement incompetent; compensation awarded.
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18 April 2008 |
| March 2008 |
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Reported
Applying the reality test, the court held the appellant, not the intermediary, was the true employer and liable for compensation.
Labour law – determination of employer where an intermediary entity is interposed – application of the ‘reality test’ (Denel v Gerber) considering supervision/control, organisational integration and economic dependence; intermediary as conduit; s 198 inapplicable; absence of clean hands not decisive.
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20 March 2008 |
| December 2007 |
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The applicant’s s24 referral was misplaced; alleged breach required enforcement under s33A and MEIBC procedures.
Labour law; Collective agreements – Distinction between disputes about interpretation/application (s24) and enforcement/compliance (s33A); MEIBC Dispute Resolution Agreement clauses 4.2.1 and 4.2.2; jurisdiction of arbitrator; gate‑keeping and remedial powers of bargaining council under enforcement procedure.
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6 December 2007 |
| December 1974 |
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Causal link between gunshot and later meningitis proved, but shot possibly accidental during struggle so murder reduced to culpable homicide.
Criminal law – causation – fatal meningitis months after gunshot – medical evidence establishing chronic osteitis and causal link. Criminal law – mens rea – whether shooting was deliberate (murder) or accidental during struggle (culpable homicide). Evidentiary issues – weight of inconsistent eyewitness testimony and effect of accused’s false testimony.
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2 December 1974 |
