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Citation
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Judgment date
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| November 2015 |
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Reported
An automatic TES termination clause that denies LRA protections is unenforceable and client-driven mass retrenchments fall under Labour Court jurisdiction.
Labour law; fixed-term contracts; automatic termination clauses; Temporary Employment Services (TES); section 5 LRA invalidates clauses preventing exercise of LRA rights; client-driven automatic termination may constitute dismissal; CCMA lacks jurisdiction over mass retrenchments (s191(5)(b)); substantive-over-form approach to termination reason.
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12 November 2015 |
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Redesign/redeployment was substantively fair; procedural failures under s189 rendered the dismissal procedurally unfair.
Labour law – retrenchment and redeployment – operational requirements and restructuring; s189 consultation obligations – failure to issue s189(3) notice and restricted representation; reasonable alternative employment and consequences of unreasonable rejection; remedy where dismissal substantively fair but procedurally unfair.
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5 November 2015 |
| September 2015 |
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Reported
Applicant’s recorded meeting did not disclose misconduct and thus was not a protected disclosure; interdiction refused.
Protected Disclosures Act – definition and scope of "disclosure" – must disclose or tend to disclose criminal or other misconduct and be in good faith; participatory recording distinguished from prohibited interception; occupational detriment under s3 PDA; authenticity of transcripts an evidentiary matter for disciplinary hearings.
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30 September 2015 |
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Reported
Whether a designation change amounted to an unfair promotion absent qualifications and prescribed promotion procedure, and appropriate remedy.
Labour law – unfair labour practice relating to promotion – promotion versus translation in rank – jurisdiction of bargaining council – minimum qualification requirements – non-compliance with Public Service Regulations – appropriate remedial relief (demotion with salary retention).
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17 September 2015 |
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Reported
Agreed written-arbitration procedure was permissible; compensation reduced to reinstatement with 12 months backpay due to unjustified departure from reinstatement.
Labour arbitration procedure – parties agreed written submissions – application format permissible where parties legally represented and pre-arbitration minute records common cause facts. Review – gross irregularity – commissioner’s discretion to call oral evidence; failure to do so not automatically reviewable. Substantive unfairness – mitigation by belief in section 701 delegation could render fraud/corruption off the table. Remedy – reinstatement is primary remedy; delay alone insufficient to displace reinstatement without evidence of impracticability or intolerability. Condonation – late cross-review may be granted where explanation and prospects of success are fair to good.
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8 September 2015 |
| July 2015 |
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Labour Court: dismissal substantively justified but procedurally unfair; four months' compensation ordered.
Labour law; review of arbitration award under s145(2) LRA; reasonableness/gross irregularity standard; procedural fairness (adequate notice, access to documents, mitigation and appeal opportunities); waiver/late charging; cumulative misconduct, reinstatement vs compensation.
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31 July 2015 |
| June 2015 |
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Arbitral award set aside because arbitrator applied the wrong dispute procedure and improperly barred the applicant from defending.
Collective agreements – dispute-resolution procedure – procedural amendments apply to pending disputes from effective date; arbitrator applied incorrect collective agreement and lacked power to bar party for failing to comply with a provision deleted by later agreement; condonation rulings misconstrued and rescinded; jurisdictional effect of certificate of outcome; review where gross irregularity and unreasonable exercise of discretion.
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26 June 2015 |
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Reported
Reinstatement may be refused where post‑dismissal conduct and loss of trust make continued employment intolerable.
Labour law – unfair dismissal – reinstatement is the default remedy subject to s193(2) exceptions – continued employment intolerable and not reasonably practicable where trust destroyed by post‑dismissal conduct and failure to cooperate – award of compensation instead of reinstatement upheld on review.
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12 June 2015 |
| May 2015 |
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Arbitrator’s preference for a corroborated employee version upheld; dismissal found substantively unfair and award confirmed.
Labour law – unfair dismissal – evaluation of mutually destructive versions; corroboration by colleague; weight of corroboration and bias; duty of arbitrator to assist lay representatives; putative irregularity where details emerge in cross-examination; reinstatement as default remedy.
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29 May 2015 |
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Reported
Liquidation suspends court proceedings; failure to give statutory notice to liquidators results in abandonment and dismissal of default judgment.
Companies law – winding‑up and liquidation – effect on civil proceedings – s359 Companies Act 61/1973 (preserved by Companies Act 71/2008 transitional provisions) – statutory written notice to liquidator – failure to give notice treats proceedings as abandoned; Labour law – default judgment – suspension of proceedings during liquidation.
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28 May 2015 |
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An arbitrator must reinstate an employee after finding unfair dismissal unless intolerability is proven.
Labour law – Arbitration award review – Unfair dismissal – Primary remedy of reinstatement under s193 LRA – Exceptions where continued employment is intolerable – Employer must prove intolerability objectively – Arbitrator’s denial of reinstatement for non‑participation when employee found not guilty reviewed and set aside.
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21 May 2015 |
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Award upheld: skills‑audit translations applied only to employees already acting in Level‑7 posts; decision was reasonable.
Labour law – Review under s145 LRA – reasonableness standard (Sidumo/Bato Star) applied to arbitration awards. Public service – RVQ13/skills‑audit translations vs promotions – translation limited to employees already acting in higher posts. Unfair labour practice – promotion/translation disputes – procedural and substantive fairness, employer discretion to prefer experienced acting incumbents.
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19 May 2015 |
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Reported
Although the municipal manager lacked authority, the applicant was estopped and the respondents' reinstatement upheld.
Labour law – unfair dismissal – bargaining council jurisdiction – validity of contracts signed by a public official lacking authority – principle of legality v ostensible authority/estoppel – discretionary suspension of invalidity to avoid injustice – reinstatement remedy.
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14 May 2015 |
| March 2015 |
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Reported
Employer’s maternity-leave policy discriminated by denying paid leave to commissioning parent under a surrogacy agreement.
Employment Equity Act – unfair discrimination – maternity leave policy limited to biological females – discrimination against commissioning parents in surrogacy agreements; Children’s Act and Constitution – best interests of the child paramount; Civil Union Act – recognition of parental status; remedy – declaratory relief, two months’ pay, costs.
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26 March 2015 |
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Unilateral council ‘abolishment’ of a valid fixed-term municipal manager contract constitutes a dismissal; arbitration award upheld.
Labour law – jurisdictional review (dismissal) – right-or-wrong de novo test; Municipal Systems Act ss 56 & 57 – interpretation and effect of 2011 amendments; validity of fixed-term section 56 appointments; unilateral council ‘abolishment’ of contract constitutes dismissal under s186(1)(a); impermissibility of raising new grounds on review not placed before arbitrator; parties bound by pre-arbitration agreement; employer may not resort to self-help to declare contracts void; arbitration award upheld and made court order.
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20 March 2015 |
| February 2015 |
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Reported
Section 62 demarcation proceedings do not permit collateral challenges to collective agreements' legality; such agreements remain binding until set aside.
Labour law – s 62 LRA – demarcation disputes concern whether employers/employees fall within a bargaining council's registered sector/area; s 62(3A) requires adjournment only where a proper demarcation question (not a legality/ultra vires challenge) has been referred or is pending; challenges to the lawfulness of collective agreements must be litigated by appropriate review or prescribed s 62 procedures; collective agreements extended by statute bind until set aside; review under s 145 requires that an arbitrator's decision fall outside the band of reasonable decisions to be set aside.
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20 February 2015 |
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Reported
Labour Court lacks jurisdiction to order resumption of disciplinary hearing where dispute concerns dismissal—CCMA is appropriate forum.
Labour jurisdiction — dismissal disputes — forum — CCMA v Labour Court; contractual right to fair hearing under employer Conditions of Service not a standalone basis for Labour Court jurisdiction; section 158(1)(a)(iii) confers powers, not jurisdiction; specific performance (resumption of disciplinary hearing) requires exceptional circumstances to justify bypassing statutory dispute-resolution scheme.
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4 February 2015 |
| January 2015 |
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Reported
Failure to exhaust contractual internal appeals ousts bargaining-council jurisdiction; late new grounds will not be entertained.
Labour law; collective agreement dispute-resolution clauses; exhaustion of internal remedies; jurisdictional preconditions; procedural bars versus substantive jurisdiction; review standard for jurisdictional rulings (right-or-wrong); discretion to admit new causes of action raised late.
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28 January 2015 |
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Arbitrator ignored clause requiring consideration of revised OSD salaries, making award unreasonable and subject to substitution.
Collective agreements — interpretation and application of PSCBC Resolution 5 of 2009 vis-à-vis GPSSBC OSD translation (Resolution 2 of 2009); parol/integration rule and exclusion of DG Circular; review standard for arbitral awards (reasonable arbitrator/gross irregularity); substitution versus remittal.
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22 January 2015 |
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Reported
Unlawfulness alone cannot justify urgent declaratory relief against a dismissal without assessing misconduct and following LRA procedures.
Labour law – dismissal – urgent declarator – unlawfulness of employer conduct not a standalone ground for immediate relief; preliminary findings on misconduct and fairness required; employer may impose sanction after chairperson's recommendation; must follow LRA dispute-resolution procedures.
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15 January 2015 |
