|
Citation
|
Judgment date
|
| December 2015 |
|
|
Procedural breach of disciplinary rules does not automatically nullify dismissal; unfair-dismissal procedures must be followed.
Labour law — dismissal — invalidity versus unfairness — procedural non-compliance with disciplinary code does not automatically render dismissal void; statutory unfair-dismissal remedies apply
Jurisdiction — CCMA/KVBA/arbitrator retains jurisdiction to decide fairness even where employer's procedural breaches are alleged
Remedies — automatic nullity and reinstatement disfavoured; relief regulated by the LRA (reinstatement, re-employment or compensation)
Authority — reliance on Labour Appeal Court decision in Edcon v Steenkamp
|
7 December 2015 |
| November 2015 |
|
|
Review of s188A arbitration dismissed; arbitrator’s findings of dishonesty and dismissal upheld despite incomplete transcript.
Labour law — Review of s188A pre‑dismissal arbitration award — Incomplete transcript — Reasonableness standard (Sidumo/Herholdt) — Findings of dishonesty, corruption, conflict of interest, disclosure of privileged information — Dismissal as reasonable sanction — Recommendations to pursue criminal/professional complaints not reviewable on presented grounds.
|
17 November 2015 |
|
Reported
Municipal manager lacked authority to settle a pending disciplinary hearing; estoppel and Turquand cannot validate an ultra vires settlement.
Local government – Systems Act ss 59, 55 – delegation of disciplinary powers; Collective bargaining – SALGA disciplinary procedures – chairperson’s role and finality; Ultra vires acts by municipal officials – inchoate settlements; Estoppel and Turquand rule – cannot validate or render intra vires acts beyond statutory or delegated authority; Review standard (Herholdt) – award unreasonable where based on legal error.
|
17 November 2015 |
|
Leave to appeal refused where employees failed to show reasonable prospects to overturn enforcement of restraints of trade.
Labour law – leave to appeal – reasonable prospects of success; Restraint of trade – protectable customer connections and confidential pricing information; Plascon‑Evans assessment of affidavits; breach by solicitation (Mining Indaba); reasonableness of two‑year duration and Western Cape territory; costs.
|
6 November 2015 |
| September 2015 |
|
|
Reported
A bargaining‑council collective agreement not validly adopted under the council constitution is not binding or convertible into a section 23 agreement.
Collective agreements — Bargaining council constitution — validity of agreement concluded by drafting subcommittee — requirement of Bargaining Committee decision and two‑thirds concurrent majorities; estoppel — representation of legal opinion insufficient without prejudice; statutory regime — sections 31–32 LRA (bargaining council agreements and ministerial extension) versus section 23 LRA — bargaining-council agreements cannot be converted into s23 agreements if not validly concluded.
|
17 September 2015 |
|
A 24-month, Western Cape-limited restraint protecting customer connections and confidential pricing was enforced after respondents solicited the applicant's clients.
Restraint of trade – enforceability – whether employee solicited employer's client – breach established by solicitation to Mining Indaba LLC; Protectable interest – customer connections and confidential pricing/tender information; Reasonableness – 24 months limited to Western Cape held reasonable in events/conference industry; Relief – final interdict and costs (subject to limited exclusions).
|
10 September 2015 |
|
Reported
Registrar's refusal to register a breakaway union was overturned; union found genuine and name not confusing.
Labour law – registration of trade unions – genuineness under s 95 and s 95(8) guidelines; freedom of association – unregistered unions and the Catch-22 of organisational rights; name similarity – likelihood of confusion under s 95(4); appeal under s 111(3) is a fresh hearing (de novo).
|
1 September 2015 |
| August 2015 |
|
|
Court enforces a limited post‑employment restraint to protect employer goodwill and client information, reducing duration to 12 months.
Labour law — Restraint of trade — Enforceability — Protectable interest in goodwill and confidential client information; solicitation evidenced by mass cancellations immediately post‑retrenchment; balance of interests permits limited post‑termination restraint; duration reduced from 24 to 12 months where branch closed.
|
12 August 2015 |
| July 2015 |
|
|
Reported
Refusal to comply with a unilateral change after a s64(4) referral is not gross insubordination; dismissal was unfair.
Labour law – unilateral changes to terms and conditions of employment – s64(4)–(5) LRA – requirement to restore prior conditions – reasonableness of employer’s instruction – insubordination – review of arbitration award – assessment of sanction and fairness of dismissal.
|
29 July 2015 |
| June 2015 |
|
|
Reported
Labour Court lacks jurisdiction under s77(3) BCEA to grant pre‑emptive restraint absent a contractual breach.
Labour Court – jurisdiction – section 77(3) BCEA – concurrent jurisdiction with civil courts does not extend to pre‑emptive enforcement of restraint clauses absent a breach. Restraint of trade – enforcement requires invocation and proof of breach; interlocutory relief not available where no breach has occurred. Employment practice – alleged unequal pay for equal work does not, by itself, justify pre‑emptive interdict against client solicitation
|
26 June 2015 |
|
Off‑the‑record conciliator remarks were reality‑checking and did not render the party’s counsel‑brokered settlement void.
Labour law – review of CCMA settlement – s158(1)(g) LRA – off‑the‑record conciliator remarks and reality‑checking – undue influence/duress – appointment of senior commissioner s137 – party‑brokered ‘all‑in’ settlement including related High Court claim – condonation for late review papers.
|
25 June 2015 |
|
Refusal to hand keys to an unlicensed, unroadworthy driver was not gross insubordination; arbitration reinstatement upheld.
Labour law – misconduct and insubordination – refusal to obey instruction likely to facilitate unlawful act; employer’s disciplinary fairness and procedural defects; review standard – reasonableness of arbitral award.
|
18 June 2015 |
| May 2015 |
|
|
CCMA can arbitrate discretionary bonus disputes as unfair labour practices; arbitrator's process-based award upheld.
Labour law – LRA s186(2)(a) – "benefit" includes discretionary advantages – CCMA jurisdiction to arbitrate bonus disputes; certificate of outcome does not bind parties on jurisdiction; review standard for jurisdiction correctness; unreasonableness standard for arbitration awards.
|
29 May 2015 |
|
National Office Bearers lacked constitutional authority to expel elected office-bearers; expulsions set aside under s158(1)(e)(i).
Trade union constitution – interpretation of disciplinary provisions – whether National Office Bearers may expel elected office-bearers under clause 25. Constitutional structure and supremacy of Branch/Provincial/National bodies – clause 24 (removal from office) versus clause 25 (discipline of members)
Labour Law – jurisdiction of Labour Court under s158(1)(e)(i) to determine disputes about non-compliance with union constitutions and grant appropriate relief
|
28 May 2015 |
|
Where it is apparent a dismissal was for incapacity rather than disability discrimination, the Labour Court must stay and refer to arbitration.
Labour law – dismissal – automatically unfair dismissal (s 187(1)(f)) – disability discrimination v incapacity; Jurisdiction – Labour Court v CCMA – Wardlaw principle; Stay and referral under s 158(2) when it becomes apparent dispute falls within arbitration; Evidentiary threshold – credible possibility/prima facie case of disability; Disability defined functionally (EEA Code) rather than solely medical model.
|
18 May 2015 |
|
Municipal dismissal for unauthorised vehicle use upheld; arbitrator's contrary award set aside as unreasonable.
Labour law — unfair dismissal — unauthorised use of municipal vehicle outside working hours and while on leave — interpretation of parking authorisation — reasonableness of arbitration award — review and substitution of award.
|
6 May 2015 |
|
Reported
s17(2)(b) protects employees working after 18:00; employers must ensure safe transport availability; dismissal for refusal upheld.
Labour law – Basic Conditions of Employment Act s 17(2)(b) – night work defined as work after 18:00 – applicability to overtime on dayshifts; Employer obligation – ensure transportation available between workplace and employee’s place of residence at shift commencement and conclusion; Public transport may suffice but employer may need to provide transport where public transport is unsafe or does not convey employee sufficiently close to home; Review – arbitrator’s finding on unfair dismissal for refusal to work unsafe overtime not irrational.
|
6 May 2015 |
| April 2015 |
|
|
Reported
An arbitration decided solely on written submissions without an agreed stated case is procedurally defective and reviewable.
Labour arbitration — Procedural fairness — Whether arbitration may proceed on written submissions alone absent a stated case — Stated case requirement and need for oral evidence in disputes about fairness of employer conduct — Award reviewable if process denies parties full opportunity to present material facts.
|
30 April 2015 |
|
Seven‑month delay for leave to appeal costs refused; no prospects of success and costs awarded.
Labour Court – Condonation – late application for leave to appeal a costs order – seven months delay – inadequate explanations – prospects of success – discretionary nature of costs appeals – s 162 Labour Relations Act (law and fairness) – union conduct supporting unprotected strike relevant to costs.
|
17 April 2015 |
|
Reported
A bargaining‑council arbitrator may not nullify disciplinary proceedings for breach of a collective‑agreement time limit.
Labour law – collective agreements – enforcement and interpretation of DPCCA Clause 6.3 (three‑month time limit and condonation) – extent of bargaining council/arbitrator powers under s33A and s138(9) LRA – limits on arbitrators declaring disciplinary proceedings null and void – administrative law constraints on tribunals; SAMWU obo T Jacobs (LC) distinguished/overruled.
|
16 April 2015 |
|
Changes to drivers' duties were a change in work practice, not a unilateral contractual change permitting an immediate protected strike.
Labour law – Strike interdict – s 64(4) LRA – unilateral change to terms and conditions of employment versus change in work practice; contractual interpretation of drivers' duties; operational managerial prerogative; interaction with BCEA and Road Traffic regulations.
|
2 April 2015 |
| March 2015 |
|
|
An eight‑month delayed attempt to appeal a costs order was refused: peremption and lack of prospects justified dismissal with costs.
Labour Court – condonation for late application for leave to appeal costs order; appeals against costs orders; s 162 LRA – costs according to law and fairness; doctrine of peremption – revival of withdrawn leave applications; prospects of success required for appeals against discretional costs orders.
|
25 March 2015 |
|
Reported
Applicants failed to prove a 30 November termination lockout; absolution granted and union ordered to pay costs.
Labour law – dismissal – alleged 'termination lockout' – automatically unfair dismissal under s187(1)(c) and s187(1)(d) – onus to begin – absolution from the instance – costs under s162 of the LRA.
|
23 March 2015 |
|
The commissioner misconceived the inquiry, causing a gross irregularity and requiring remittal for fresh arbitration.
Labour law – review – gross irregularity – commissioner misconceived inquiry by focusing on recording of breaks rather than alleged falsification; condonation – excessive delay and inadequate explanation; procedural fairness – post-arbitration enquiries and failure to afford employer opportunity to respond; remedy – review and remittal for fresh arbitration rather than substitution.
|
18 March 2015 |
|
Condonation refused for excessive unexplained delay; arbitrator’s disciplinary finding upheld as reasonable.
Labour law — condonation for late review — Melane/NUM test — explanation for delay and prospects of success; review of arbitration award — reasonableness of arbitrator’s decision and application of Sidumo.
|
11 March 2015 |
| February 2015 |
|
|
Reported
A public entity may not rely on PFMA constraints to evade LRA obligations to provide employee benefits.
Public entities – Labour Relations Act obligations – employees’ ex lege right to fair labour practices; PFMA – does not permit public employer to avoid employment law duties; Unfair labour practice – benefits under internal policy; Review – alleged gross irregularity by CCMA commissioner.
|
20 February 2015 |
|
Interventionist arbitration conduct did not amount to bias and the award was not unreasonable under Sidumo.
Labour law – review of arbitration award – reasonable apprehension of bias – inquisitorial interventions by arbitrator do not automatically amount to bias where even‑handed and unobjected to. Administrative law – Sidumo unreasonableness test – an award will be set aside only if no reasonable arbitrator could have reached the same conclusion
Evidence – hearsay and post‑hearing documentary evidence admissible where parties agree and authenticity is not properly challenged. Labour law – disciplinary sanctions short of dismissal – assessment of unfair labour practice under s186 of the LRA
|
10 February 2015 |
|
Reported
Employer breached collective agreement and acted procedurally unfairly, but dismissal was substantively fair due to loss of trust.
Labour law – collective agreement – disciplinary procedure – employer may not substitute disciplinary chairperson's sanction; ultra vires substitution. Procedural fairness – pre-dismissal hearing; employer must disclose reasons and avoid subjecting employee to double jeopardy. Substantive fairness – breakdown of trust and confidence; reasonableness review of arbitrator's factual conclusions
Remedy – compensation for procedural unfairness where dismissal substantively fair
|
10 February 2015 |
| January 2015 |
|
|
Dismissal for operational requirements was fair where employee unreasonably refused reasonable salary-reduction alternatives.
Labour law – retrenchment for operational requirements – substantive fairness – procedural fairness – consultation under s 189 LRA – consideration of alternatives – employee refusal of reasonable offer – role of job grading – corporate governance (King III).
|
28 January 2015 |
|
Reported
A referral made while the employee still provided services during notice is premature; CCMA lacked jurisdiction.
Labour law – Constructive dismissal – Date of dismissal – Referral lodged during notice period while services still tendered is premature – s190(1) not applicable to constructive dismissal – CCMA lacks jurisdiction – Conciliation certificate does not confer jurisdiction.
|
23 January 2015 |
|
Reported
A prior arbitration finding non‑coverage by the OSD barred a later unfair demotion referral; arbitrator’s failure to decide jurisdiction was fatal.
Labour law – arbitration – res judicata/issue estoppel in extended sense where prior award determined coverage by collective agreement; jurisdictional issues – arbitrator obliged to decide preliminary jurisdiction (application of OSD) before proceeding; gross latent irregularity by failing to determine jurisdiction; award set aside and substituted.
|
23 January 2015 |
