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Citation
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Judgment date
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| October 2014 |
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Reported
An employer within a corporate group may lawfully suspend and discipline an executive employee who is remunerated by that group entity; statutory LRA remedies, not urgent declaratory relief, are generally appropriate.
• Employment law – identity of employer in a corporate group – employee may have multiple employers where remuneration and duties are provided by group entities.
• Labour law – disciplinary action and precautionary suspension – employer may suspend pending hearing if lawful employer and suspension on full pay is for limited duration.
• Procedure – urgency – self-created urgency defeats motion for interim relief.
• Remedies – unfair suspension/unlawful disciplinary action – appropriate forum is CCMA/bargaining council under the LRA; declaratory relief rarely appropriate where statutory remedies exist.
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27 October 2014 |
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Reported
An arbitration award under the LRA is a 'debt' that prescribes after three years; a pending review does not interrupt prescription.
Prescription Act – application to CCMA/bargaining-council arbitration awards; arbitration award as a 'debt' – reinstatement and compensation; three-year prescription under s 11(d); review application does not interrupt prescription (pre-2014 Amendment); administrative-law origin of award does not exclude prescription.
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17 October 2014 |
| September 2014 |
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Arbitrator misdirected on charge; employee guilty of unauthorised consumption but dismissal was disproportionate, remedied by reinstatement and warning.
Labour law – misconduct – unauthorised consumption of employer's property – distinction between misconduct and dishonesty; review where arbitrator misdirects by collapsing guilt and sanction inquiries; assessment of proportionality and appropriate sanction in light of long service and managerial responsibilities; reinstatement with final written warning as alternative to dismissal.
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18 September 2014 |
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Finale interdik beklee: 12‑maande, area‑afbakening, beskermbare handelsbelange en aanspreeklikheid van die nuwe werkgewer.
Handelsbeperking – uitleg van beperkende klousules; vertroulike inligting – ligging van seinherleitorings en klantadresse; beskermbare belange – klanteverhoudings; afdwingbaarheid – geografiese beperking tot aanhangsel GvW2; mededingende inbreuk deur nuwe werkgewer – bystand/induksie; 12‑maande-termyn redelik.
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8 September 2014 |
| August 2014 |
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Reported
Employee entitled to disclosure and interim suspension of retrenchment pending CCMA determination under sections 16 and 189 of the LRA.
Labour law – operational‑requirements (retrenches) – consultation under s189 – disclosure of information – s16 read with s189(4) – applicability to individual employees as well as trade unions – referral to CCMA – interim interdict pending CCMA determination.
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14 August 2014 |
| July 2014 |
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A conciliated referral alleging a lock-out dismissal confers locus standi on employees, even if formal dismissals occurred later.
* Labour law – Conciliation requirement – Locus standi – whether a dispute pleaded as a lock-out dismissal and conciliated confers standing on employees whose formal dismissals occurred later.
* Labour law – Automatically unfair dismissal – s 187(1)(c) – whether termination by lock-out constitutes dismissal.
* Civil procedure – Jurisdiction of Labour Court – dependence on conciliation certificate.
* Procedure – Inspection in loco – discretionary remedy ordered.
* Case management – Trial duration and costs in the cause.
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31 July 2014 |
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Reported
Dismissal for participation in an unprotected strike and related misconduct upheld as fair; costs awarded jointly and severally.
* Labour law – unprotected strike – participation despite clear ultimatum; * Misconduct – unauthorized absence, refusal to follow reasonable instruction, leaving workplace; * Procedural fairness – adequate notice, opportunity for representation and mitigation; * Sanction – dismissal for repeated, deliberate misconduct upheld as fair; * Union liability – failure to represent/mitigate and encouragement of unprotected strike may attract costs liability.
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29 July 2014 |
| June 2014 |
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The applicant’s restraint agreements were enforceable; respondents interdicted from working for a competitor and disclosing trade secrets.
Restraint of trade – interpretation of poorly drafted restraint clause – Endumeni approach – trade secrets and trade connections – breach and enforceability – inherent urgency of restraint disputes – discretion to admit further affidavits.
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3 June 2014 |
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Reported
Labour Court lacks jurisdiction where the actual dismissal was not first referred to conciliation; referral dismissed and costs awarded.
Labour law – Unprotected strike and lockout – Actual dismissal after disciplinary process (21 Jan 2013) not alleged in CCMA referral – s191 LRA requires referral to conciliation as a precondition to Labour Court adjudication – failure to conciliate deprives Labour Court of jurisdiction – costs awarded to employer.
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3 June 2014 |
| May 2014 |
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Reported
A close corporation’s dismissal of a member-employee without a valid members’ vote is void ab initio.
Close corporations – meetings and voting – member-employees – dismissal without a members’ vote void ab initio; Validity versus fairness of dismissal – jurisdiction of CCMA; Declaratory relief under BCEA/LRA; Reinstatement and arrear salary where dismissal invalid.
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29 May 2014 |
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Reported
Employee's contractual damages claims for constructive dismissal dismissed for failure to plead cause of action and quantify losses.
Labour law – exceptions to pleadings – insufficiency and vagueness of statement of claim; conflation of contractual damages with LRA compensation; measure of damages for repudiated periodical employment contracts; duty to quantify and particularise contractual claims; refusal to grant further amendment where applicant had ample opportunity.
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27 May 2014 |
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Reported
Whether non-compliance with a collective-agreement three-month disciplinary time limit without condonation nullifies the hearing.
Collective agreements – Disciplinary Procedure – Clause imposing peremptory three-month time limit – Failure to comply without condonation renders disciplinary hearing invalid; Bargaining council arbitration – powers under s 33A and s 138(9) of the LRA to issue declaratory orders and enforce collective agreements; Review – failure to determine real dispute and exceeding powers renders arbitration award reviewable and unreasonable; Remedy – declaratory relief and retrospective reinstatement.
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26 May 2014 |
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Reported
Off-duty, single crude advance did not amount to dismissible sexual harassment; telephonic Skype evidence was not unfair.
* Labour law – sexual harassment – single off-duty verbal advance – relevance of persistence, power imbalance, workplace nexus and seriousness. * Evidence – remote testimony via Skype/telephone – admissible under s 138(1) LRA and not necessarily prejudicial. * Sanction – progressive discipline required; dismissal disproportionate for first, non-serious offence. * Review – unreasonable arbitration findings capable of substitution by court.
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9 May 2014 |
| April 2014 |
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Reported
Facebook complaints about hospital toilets were not protected disclosures; dismissal for persistent insubordination was fair.
Protected Disclosures Act – whether internet publications (Facebook) constitute protected disclosures – reasonableness and responsibility of belief required by PDA – notorious or already-known information not a "disclosure" – failure to follow PDA procedures – gross insubordination as fair reason for dismissal under the LRA.
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16 April 2014 |
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Commissioner exceeded powers by ordering reinstatement into a non‑existent alternative position; award set aside and remitted.
Labour law — dismissal for incapacity — duty to accommodate non‑work-related injury — reinstatement into alternative post — arbitrator’s powers — unreasonable award — review and remittal where no suitable vacancy exists and evidentiary basis lacking.
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16 April 2014 |
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Reported
Arbitrator reasonably found termination by operation of law; MEC's unexplained refusal to reinstate was irrational and set aside.
Public Service Act s 17(3)/(5)(a)(i) – deeming provision for absence without permission; review of arbitration award under s 145 LRA – Sidumo reasonableness standard; s 17(5)(b) reinstatement by MEC – requirement to give reasons; administrative justice and PAJA s 5(3); review under s 158(1)(h) LRA; admissibility of hearsay evidence for review.
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16 April 2014 |
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Reported
Post-retirement re-employment creates a new contract; prior service ending in retirement does not attract BCEA severance pay.
Labour law – dismissal for operational requirements – applicability of s189 LRA to post-retirement fixed-term contracts; BCEA ss 41 and 84 – whether prior service terminated by retirement counts as continuous service for severance pay; damages for short notice; compensation for procedural unfairness.
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16 April 2014 |
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Arbitrator misconceived the enquiry and misapplied causation; dismissal for gross negligence was found to be fair.
* Labour law – misconduct – gross negligence – adequacy of disciplinary charge – employee entitled to clear, but not technical, specification of allegation; * Review – award unreasonable and vitiated by gross irregularity where arbitrator misdirects on basic nature of enquiry; * Evidence – causation in misconduct enquiries requires balance-of-probabilities assessment, not delictual causation test; * Remedy – arbitration award reviewed and set aside and replaced with finding that dismissal was fair.
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16 April 2014 |
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Failure to apply the sexual‑harassment Code rendered the arbitration award reviewable; court substituted and upheld dismissal.
Labour law – review of arbitration award – sexual harassment – failure of CCMA commissioner to apply 2005 Code of Good Practice – misdirected credibility assessment – power imbalance and reporting difficulties – award reviewable and substitution appropriate.
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15 April 2014 |
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Reported
Prior arbitration awards or their review do not oust a bargaining council's jurisdiction over collective-agreement disputes.
* Labour law – jurisdiction – s24 LRA – bargaining council jurisdiction to interpret and apply collective agreements; * Arbitration awards – administrative decisions – prior awards or Labour Court review do not bind other arbitrators as precedents; * Administrative law – review vs appeal – supervisory role of Labour Court and limits on substituting findings of fact; * Procedural remedy – joinder to avoid multiplicity of proceedings.
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15 April 2014 |
| March 2014 |
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Reported
Court suspended disciplinary proceedings where employee's prima facie protected disclosure alleged procurement irregularities and disciplinary steps constituted occupational detriment.
* Protected Disclosures Act – disclosure of procurement irregularities – disclosure to employer and audit committee qualifies as protected disclosure if made in good faith. * Occupational detriment – suspension and disciplinary action can constitute occupational detriment linked to disclosure. * Interim relief – courts may suspend disciplinary proceedings pending PDA adjudication where prima facie protection and public interest are shown. * Public interest – PDA's objectives require courts to consider wider public interest when granting interim relief in whistleblowing matters.
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4 March 2014 |
| February 2014 |
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Reported
Payment of arrear pay under a compromise did not extinguish the applicants' reinstatement rights; award made an order of court.
Labour law – LRA s 158(1)(c) – making arbitration award an order of court; settlement and compromise – offer and acceptance; enforcement of CCMA awards – writ of execution and scope of compromise; reinstatement and backpay – reserved claims and limits of court's discretion when converting arbitration awards into court orders.
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24 February 2014 |
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Reported
Court ordered employment-equity judgment implemented pending appeal under High Court rule 49(11).
* High Court rule 49(11) – enforcement of judgment pending appeal; Labour Court rule 11(3) – adoption of procedure where rules silent; Employment Equity Act s42 – national and regional demographics; interlocutory relief – urgency, South Cape factors (irreparable harm, prospects of success, balance of convenience); costs to be costs in appeal.
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6 February 2014 |
| January 2014 |
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Reported
Reinstatement requires returning the employee to the post he would have held; non‑wilful non‑compliance is not contempt.
Labour law – reinstatement interpretation – "reinstate" requires return to the same job or its restructured equivalent; distinction between reinstatement and re-employment (s 193 LRA); employer restructuring and upgraded posts; contempt of court requires wilful and mala fide non‑compliance; bona fide implementation attempts do not constitute contempt.
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28 January 2014 |
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Reported
Occupational‑detriment whistleblowing disputes under the PDA are reserved for Labour Court adjudication, not arbitration.
Labour law — unfair labour practice — occupational detriment under Protected Disclosures Act — interplay between s191(5)(a)(iv) and s191(13)(a) of the LRA — statutory interpretation — jurisdiction of bargaining council/CCMA versus Labour Court.
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22 January 2014 |
| December 2013 |
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A respondent who permits a default judgment may not seek leave to appeal and can be ordered to pay costs.
Labour law – appealability – default judgments generally not appealable as not final because capable of rescission; Rule 30 – applications for leave to appeal must set out clear, succinct grounds; costs – withdrawal of application and unreasonable conduct may attract adverse costs order under s162 LRA; authority: Pitelli v Everton Gardens Projects CC (SCA).
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12 December 2013 |
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Reported
Arbitrator may rely on visual comparison of signatures without expert evidence; circumstantial evidence can justify dismissal for dishonesty.
Labour law — unfair dismissal — dishonesty allegation based on altered business plan — arbitrator may rely on visual comparison and commonsense without handwriting expert — circumstantial evidence and missing original document can justify adverse inference and support finding of breakdown of trust — review dismissed.
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4 December 2013 |
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An arbitrator's refusal to accept circumstantial evidence can be a latent gross irregularity justifying review and substitution.
Labour law — arbitration review — latent gross irregularity where arbitrator excludes circumstantial evidence; circumstantial evidence can satisfy balance of probabilities; substitution of award permitted in exceptional circumstances; dismissal for theft/unauthorised removal and interference found substantively and procedurally fair.
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3 December 2013 |
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Reported
Failure to address an alibi and to give reasons supporting an award amounts to a gross irregularity requiring review and remittal.
* Labour law – Arbitration – sections 138(1) and 138(7) LRA – commissioner must deal with substantial merits and give brief reasons.
* Review – section 145(2)(a)(ii) LRA – failure to deal with a party’s version or to give reasons supporting conclusion constitutes a gross irregularity.
* Credibility and probabilities – commissioner must weigh evidence and address opposing versions; mere assertion of credibility without reasons is inadequate.
* Condonation – delay in instituting review may be condoned where explanation and prospects of success justify it.
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3 December 2013 |
| November 2013 |
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Excessive delay and no adequate explanation; bargaining-council panellists must inquire into the real dispute, not be bound by referral forms.
Labour law — condonation for late review under s145 LRA — Melane factors applied; excessive delay and inadequate explanation fatal; CCMA/Bargaining Council jurisdiction — commissioners/panellists may inquire into substantial merits and are not bound by referral-form labels; referral forms not pleadings; re-characterisation of an already-determined unfair-labour-practice dispute is an abuse of process.
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22 November 2013 |
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Reported
Prescription Act held incompatible with LRA; employer’s prescription defence to an arbitration award dismissed.
Labour law – Prescription Act v Labour Relations Act – applicability of general prescription to CCMA arbitration awards – section 143 certification and interruption of prescription – public policy and access to justice in unfair dismissal claims.
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14 November 2013 |
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Arbitrator's finding of fixed-term employment upheld despite unsigned contracts; BCEA does not presume permanent employment.
* Labour law — Review of arbitration award — Reasonableness standard; dismissal of review where arbitrator's finding that employment was fixed-term was supported by evidence.
* Employment contracts — Unsigned written fixed-term agreements; refusal to sign does not necessarily preclude fixed-term employment where offer and conduct show fixed-term tenure.
* BCEA — s83A presumption as to employee status is neutral on whether employment is fixed-term or indefinite; s29(1)(m) does not prefer indefinite contracts.
* Procedure — Applicant bore onus to plead and prove factual grounds for review; failure to set out factual basis in founding papers may preclude consideration.
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5 November 2013 |
| October 2013 |
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Labour Court may review state-employer disciplinary sanctions under s158(1)(h) and substitute dismissal when sanction is irrational.
Labour law – LRA s 158(1)(h) – review of acts performed by the State in its capacity as employer – disciplinary chairperson acting under collective agreement and statutory delegation – jurisdiction post Chirwa/Gcaba – reasonableness review of sanction – substitution of sanction (dismissal) where original sanction irrational.
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28 October 2013 |
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A peregrinus applicant must provide security for costs when equity and poor prospects of success justify it.
Security for costs in Labour Court; rule 47 procedure adopted via rule 11; peregrinus v incola (domicile of choice) inquiry; exercise of broad discretion balancing access to courts and equity; limited role of merits/vexatiousness in exceptional cases; order for R75,000 security and stay pending payment.
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18 October 2013 |
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Reported
A demarcation must consider collective-bargaining and socio-economic factors, not just manufacturing technicalities.
Labour law – Demarcation – Section 62 LRA – Second-phase enquiry (collective-bargaining practices and socio-economic factors) required – Proper interpretation of registered scope – s62(7) public consultation – Procedural fairness in admitting witness evidence.
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18 October 2013 |
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Reported
A national employer must consider both national and regional demographics when setting employment equity targets; disregarding regional demographics may be unfair discrimination.
Employment equity — scope of assessment of compliance — section 42 requires reference to national and regional economically active population — national employer cannot ignore regional demographics; Unfair discrimination — application of employment equity plan — selection practices that disregard regional demographics may constitute unfair discrimination under s6 of EEA and s9 of the Constitution; Remedies — Labour Court may adjudicate s6 unfair discrimination claims despite Chapter V enforcement route for Chapter III obligations; Procedural — Chapter III EEA challenges require exhaustion of Chapter V procedures (Dudley).
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18 October 2013 |
| June 2013 |
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Reported
An employee is entitled to representation by his registered trade union at arbitration despite employer objections about the union’s constitutional scope.
Labour law – CCMA representation – CCMA rule 25(1)(b)(iii) and s200 LRA – registered trade union may represent members at arbitration irrespective of union’s internal constitutional scope; s4(1)(b) regulates internal membership only; employer may not object to locus standi based on union constitution at arbitration.
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21 June 2013 |
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Complaints about poor workplace performance do not automatically qualify as protected disclosures; interdict refused.
* Protected Disclosures Act – definition of 'protected disclosure' and 'impropriety' – performance complaints about management do not necessarily constitute protected disclosures. * Occupational detriment – disciplinary hearings based on workplace performance criticism are not automatically occupational detriments under the PDA. * Interim/final interdict – requirements for final relief; need to pursue statutory dispute-resolution alternatives (conciliation/CCMA/Labour Court). * Interaction of PDA and LRA – s186(2)(d) and s191(13) and remedies for alleged occupational detriments.
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21 June 2013 |
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Reported
Whether "consequent to" makes clause 5.2 dependent on parity in clause 5.1 and whether the agreement should be rectified.
Labour law – collective agreement interpretation – internal inconsistency and ambiguity – meaning of "consequent to" – admissibility of parol evidence at arbitration – bargaining council/CCMA power to rectify collective agreements under s24 LRA – rectification granted to give effect to prior common intention.
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11 June 2013 |
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Reported
Whether a travel allowance under a collective policy is a "benefit" under section 186(2)(a) and was fairly withheld.
Labour law; section 186(2)(a) "benefit" includes policy/practice-based advantages; CCMA jurisdiction; travel allowance entitlement; Sidumo reasonableness review; condonation and de bonis propriis costs for negligent attorney.
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7 June 2013 |
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Reported
Repeated pressure, unlawful extension of an acting appointment and re‑prosecution for the same conduct rendered continued employment intolerable.
Labour law – constructive dismissal (s186(1)(e) LRA) – unreasonable/unlawful instruction to extend time‑limited acting appointment; unilateral variation/breach of contract; repeated disciplinary action/double jeopardy; review of arbitration award; remedial compensation.
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5 June 2013 |
| May 2013 |
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Late review refused: condonation denied for inadequate explanation and no demonstrated prospects of success.
Labour law – Review of CCMA arbitration award – Condonation for late filing – Melane principles: degree of lateness, full and detailed explanation covering entire delay, prospects of success and importance of the case – Applicant’s duty to place proper record before court – Review test: whether a reasonable decision‑maker could have arrived at the award.
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21 May 2013 |
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Reported
Dismissal for absence during a protected strike was automatically unfair; applicants awarded 15 months' compensation.
Labour law – automatically unfair dismissal – dismissal arising from participation in protected strike – causation: real/underlying reason vs formal reason; disciplinary hearings in absentia during protected strike; compensation under s194(3) LRA (just and equitable, punitive/solatium element).
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13 May 2013 |
| April 2013 |
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Reported
Bargaining council can arbitrate interpretation/application of collective agreements but not unfairness claims arising from correct implementation.
Collective agreements – interpretation and application – bargaining council jurisdiction under s24 LRA; Unfair labour practice jurisdiction – limitation where employer has complied with collective agreement; Members bound by collective bargains; Review – arbitrator failed to decide material points; Condonation and costs for late record filing (rule 7A).
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11 April 2013 |
| March 2013 |
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Reported
Whether the Prescription Act governs LRA claims and whether bargaining-council referrals interrupt prescription.
Labour law — Prescription Act 68 of 1969 — Consistency with Labour Relations Act — Whether LRA claims are governed by Prescription Act — Interruption of prescription by referral to bargaining council/conciliation — Jurisdictional rulings and movement between tribunal and court.
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20 March 2013 |
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Arbitrator’s conclusion that dismissal for weighbridge-record-related misconduct was reasonable and not reviewable.
Labour law — review of arbitration award — Sidumo standard — reasonableness of inference from circumstantial evidence; admissibility of late supplementary affidavit; adverse inference from silence; weighbridge records and conspiracy to steal; dismissal for misconduct.
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20 March 2013 |
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Reported
A bargaining council lacks jurisdiction to arbitrate disputes about the fairness of a collective agreement's implementation.
Labour law – Bargaining council jurisdiction – Distinction between disputes about interpretation/application of collective agreements and disputes about the fairness of a collective agreement’s implementation – Unfair labour practice (s186(2)(a)) claims that in substance challenge a collective agreement must be correctly characterized; collective agreements bind members unless unlawful or unconstitutional.
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20 March 2013 |
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Reported
An employee may be reinstated after constructive dismissal where circumstances changed and the employer fails to rebut that evidence.
* Labour law – constructive dismissal (s186(1)(e)) – whether resignation due to intolerable conditions can coexist with remedy of reinstatement. * Remedies (s193(2)(b)) – reinstatement as primary remedy unless continued employment would be intolerable. * Review standards – Asara test for jurisdictional question of dismissal; Sidumo unreasonableness test for remedial discretion. * Evidence – uncontradicted employee evidence and employer's failure to rebut may justify reinstatement despite earlier constructive dismissal.
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18 March 2013 |
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Reported
Failure to file agreed written submissions may make an award in the applicant's absence but not necessarily "erroneously made" under s144.
Labour law — s144 LRA — rescission: "erroneous" relates to procedural defects in making an award, not the merits; absence due to party's negligence does not render award "erroneous"; condonation requires satisfactory explanation for delay and prospects of success are immaterial where explanation is unreasonable.
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15 March 2013 |
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Applicant’s urgent challenge to early contract termination struck from roll for lack of urgency; costs awarded to respondent.
Labour law – fixed-term municipal employment – early release before contract expiry – applicability of municipal disciplinary regulations to senior managers – urgency in court proceedings – requirements for urgent relief and irreparable harm.
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12 March 2013 |
