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Citation
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Judgment date
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| August 2020 |
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Reported
Review upheld substantive unfairness of incapacity dismissal; arbitrator misapplied procedural fairness test.
Labour law — incapacity dismissal — frequent short-term absenteeism; procedural fairness — correct test for incapacity dismissals vs disciplinary process; substantive fairness — factors: nature and cause of incapacity, likelihood of improvement, prior work record, effect on employer, adequacy of AIP, EAP and medical investigation; review of arbitration awards — reasonableness test, not piecemeal appeal of reasoning; employer’s duty to obtain independent medical/psychological assessments depends on factual necessity.
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27 August 2020 |
| December 2019 |
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CCMA may convert a settlement into an arbitration award without first having decided condonation for a late referral.
Labour law — CCMA jurisdiction — s142A making settlement agreement arbitration award — s143 certification — s191 time limits and condonation not prerequisite to CCMA converting a settlement into an award — LAC authority in Greef supports broad construction of "right to refer".
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12 December 2019 |
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Reported
Labour Court lacks jurisdiction to review a Public Protector refusal; applicant’s claim is res judicata and dismissed.
Labour Court – jurisdiction – review of Public Protector decision – LRA does not confer jurisdiction; Public Protector's decisions not administrative action under PAJA – res judicata bars relitigation of finally adjudicated dismissal disputes – section 6(6) Public Protector Act precludes investigation of judicial functions.
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12 December 2019 |
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Section 187(1)(c) protects collective bargaining (not individual employees); applicant’s dismissal was substantively and procedurally unfair.
Labour law – jurisdiction after conciliation – change in characterization of dismissal does not oust jurisdiction; Labour law – s187(1)(c) LRA – amendment and plural "employees" limit application to collective bargaining context; automatically unfair dismissals – not available to individual employees; unfair dismissal – substantive and procedural fairness requirements; remedies – solatium/just and equitable compensation assessment.
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3 December 2019 |
| November 2019 |
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Reported
Applicant failed to prove exceptional circumstances or irreparable harm to justify execution of the judgment pending appeal under section 18.
Superior Courts Act s18 – suspension of decision pending appeal – exceptionality and irreparable harm required to order execution pending appeal; municipal manager re‑appointment reviewed and set aside – public interest and principle of legality insufficient without specific, fact‑based proof of irreparable harm.
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26 November 2019 |
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Arbitrator lacked jurisdiction and erred in law by treating a section 198B/status dispute as entitling backdated benefit awards.
• Labour law – section 198B and 198D LRA – conversion of fixed-term contracts versus remedies; status declaration distinct from unfair-labour-practice relief.
• Arbitration jurisdiction – where a collective settlement and its dispute-resolution clause (made an order of court) apply, a commissioner may not assume jurisdiction to decide interpretation/application disputes outside that forum.
• Procedural competence – unequal-treatment/benefit claims of converted permanent employees are to be pursued as unfair-labour-practice disputes; commissioners may not grant backdated monetary relief under section 198B beyond their remedial scope.
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14 November 2019 |
| August 2019 |
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Applicant’s dismissal after conviction for bribery was substantively fair; review dismissed with costs.
Labour law — dismissal for incapacity due to imprisonment; criminal conviction as relevant to dismissal; procedural versus substantive fairness; assessment dependent on facts; no rigid separation between criminal and disciplinary proceedings.
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2 August 2019 |
| April 2019 |
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Court sets aside exemption appeal ruling for gross irregularity and remits for rehearing by a properly constituted appeal authority.
* Labour law – Jurisdiction – Labour Court may review performance of exemption appeal bodies established under collective agreements under s158(1)(g) LRA. * Procedural fairness – gross irregularity – failure of an appeal authority to consider an appeal amounts to gross irregularity and denial of fair hearing. * Appeals – nature of appeal – exemption appeal is a wide appeal (rehearing) and appeal authority is not confined to the initial record and may receive further evidence. * Remedy – substitution vs remittal – remittal appropriate where court is not in as good a position as administrator; directions may be given for proper rehearing.
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2 April 2019 |
| March 2019 |
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An arbitration award reasonably assessing conflicting witness evidence is not reviewable despite minor procedural imperfections.
Labour law – review of arbitration award under s 145 LRA; credibility and evaluation of conflicting evidence; single‑witness/cautionary rule in arbitration; reasonable decision‑maker test (Sidumo/SFW); effect of arbitrator’s own experience on award validity; costs for protracted litigation.
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6 March 2019 |
| February 2019 |
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Extension of pay-progression eligibility for new appointees to 24 months was irrational and unfairly discriminatory; policy reviewable and set aside.
Employment law – pay progression – PSCBC Resolution 1 of 2012; Incentive Policy Framework; Performance Management Policy – extension of qualifying period for "first time participants" from 12 to 24 months – irrational, arbitrary and unfairly discriminatory – reviewable administrative action – clauses 4.1–4.3 of PSCBC Resolution 1 of 2012 set aside – remedy: award of pay progression and consequential salary adjustments.
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28 February 2019 |
| December 2018 |
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Court stayed execution and lifted attachments pending review, conditionally exempting the organ of state from s145 security.
* Labour law – review proceedings – effect of instituting review on operation of arbitration award – s145(7) and (8) LRA; discretionary power to require, reduce or dispense with security.
* Urgent procedure – Rule 8 – condonation for non‑compliance with Rule 7 and requirements for urgency.
* Public/administrative law – interplay between LRA security requirements and PFMA/Treasury constraints; organs of state not automatically exempt.
* Interim relief – stay of execution and lifting of attachment where public interest and potential irreparable harm exist.
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27 December 2018 |
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Whether the employee resigned or was dismissed and whether a variation of salary defeated his contractual 12‑month severance entitlement.
* Employment law – contract – dispute whether employee resigned or was dismissed – effect on contractual severance entitlement under clause providing 12 months' benefits.
* Contract variation – non-variation clause – when external documents and conduct can constitute a valid variation.
* Burden of proof – defendant bears onus to prove oral or tacit agreement varying written contract or terminating employment by agreement.
* Interpretation – contextual construction of termination clause; Conventional Penalties Act not engaged.
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13 December 2018 |
| November 2018 |
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Reported
CCMA-granted organisational rights for minority unions do not exempt members from lawful agency-shop fees.
Labour law – organisational rights under s21(8C) LRA; agency shop agreements s25 LRA; majoritarianism in collective bargaining; double deductions (union subscription plus agency fee); liability of minority-union members to contribute to collective-bargaining costs.
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6 November 2018 |
| December 2015 |
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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.
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7 December 2015 |
| November 2015 |
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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.
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17 November 2015 |
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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.
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17 November 2015 |
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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.
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6 November 2015 |
| September 2015 |
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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.
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17 September 2015 |
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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).
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10 September 2015 |
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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).
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1 September 2015 |
| August 2015 |
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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.
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12 August 2015 |
| July 2015 |
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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.
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29 July 2015 |
| June 2015 |
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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.
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26 June 2015 |
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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.
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25 June 2015 |
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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.
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18 June 2015 |
| May 2015 |
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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.
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29 May 2015 |
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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.
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28 May 2015 |
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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.
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18 May 2015 |
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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.
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6 May 2015 |
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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.
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6 May 2015 |
| April 2015 |
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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.
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30 April 2015 |
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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.
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17 April 2015 |
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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.
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16 April 2015 |
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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.
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2 April 2015 |
| March 2015 |
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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.
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25 March 2015 |
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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.
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23 March 2015 |
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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.
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18 March 2015 |
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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.
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11 March 2015 |
| February 2015 |
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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.
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20 February 2015 |
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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.
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10 February 2015 |
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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.
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10 February 2015 |
| January 2015 |
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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).
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28 January 2015 |
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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.
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23 January 2015 |
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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.
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23 January 2015 |
| December 2014 |
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Late application for leave to appeal refused; reinstatement includes retrospective backpay and court may not alter arbitration awards under s158(1)(c).
Labour law – condonation for late application for leave to appeal – excessive delay and inadequate explanation – section 158(1)(c) LRA – court may make arbitration award an order of court but may not alter award terms – reinstatement includes retrospective backpay – prospects of success on appeal must be reasonable.
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9 December 2014 |
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An arbitrator properly interpreted a collective agreement converting FTCs to permanent employees, finding dismissals unfair.
Labour law – Collective agreement converting fixed-term contract workers to permanent employment; interpretation of collective agreements incidental to unfair dismissal disputes; parol evidence rule; s 186(1)(a) dismissal; remedies and costs under the LRA (s 193(2), s 138(10)).
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9 December 2014 |
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CCMA may arbitrate grading/benefit disputes under s186(2)(a); jurisdictional rulings are reviewed on a right/wrong basis.
Labour law; unfair labour practice (s186(2)(a)) — benefit defined broadly to include discretionary advantages or policy-based entitlements — grading/regrading disputes not automatically excluded from CCMA jurisdiction; review of jurisdictional rulings assessed on right/wrong basis; Apollo Tyres applied.
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2 December 2014 |
| November 2014 |
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Labour Court lacks jurisdiction where dismissal followed a disciplinary enquiry, not a statutory pre-dismissal arbitration under section 188A.
Labour law – s188A pre-dismissal arbitration – jurisdiction – statutory prerequisites (written consent to specific arbitration; appointment by CCMA/council/accredited agency; prescribed fee) not met; contractual/disciplinary-code provisions cannot substitute for statutory requirements; disciplinary enquiry vs pre-dismissal arbitration; review dismissed for lack of jurisdiction.
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18 November 2014 |
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Arbitrator reasonably found employer’s conduct forced the employee to resign; review dismissed.
Labour law – constructive dismissal; burden of proof – employee must show intolerable conduct then employer must justify dismissal; review of arbitration award – reasonableness standard (Herholdt); reallocation of duties and pressure to resign may amount to constructive dismissal.
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10 November 2014 |
| October 2014 |
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Reported
Workers may lawfully strike for organisational rights despite a union's constitutional scope excluding the employer's industry, if section 64 requirements are met.
Labour law – Right to strike – Organisational rights dispute – Whether strike is unprotected where union's constitution excludes the employer's industry – CCMA jurisdictional ruling – Section 64 and 65 LRA – Constitutional protection of strike action.
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31 October 2014 |
