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Citation
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Judgment date
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| 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 |
| December 2014 |
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Reported
Demarcation disputes under section 62 may be determined by the CCMA without prior conciliation; TES placements can fall within client sector and be bound by council agreements.
Labour law — Demarcation disputes (s62) — CCMA jurisdiction — No requirement for prior conciliation; demarcations competent on application; temporary employment services — assessment of common purpose and sectoral attachment of placed employees; review procedure — premature review and reasons to follow; bias allegations must be pleaded; costs for frivolous delay.
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10 December 2014 |
| November 2014 |
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Reported
An arbitrator unreasonably required individual proof where ‘team misconduct’ justified dismissals for massive stock shrinkage.
Labour law – dismissal for stock shrinkage – team misconduct/team liability – proof of individual culpability not required where massive unexplained losses occur; review under Sidumo – unreasonable/arbitrary arbitration award; authority: Snip Trading; Foschini; onus and section 192 considerations.
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28 November 2014 |
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Reported
Withdrawal of an advertised post without recorded reasons can constitute an unfair promotion practice, compensable by damages.
Labour law – Unfair labour practice (promotion) – Withdrawal of advertised post after interviews without recorded reasons – failure to provide reasons permits inference of arbitrary decision-making – jurisdiction to determine promotion dispute – remedy: compensation substituted for retrospective promotion.
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24 November 2014 |
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Contractual forfeiture of accrued leave is unlawful to the extent it operates before six months after an annual leave cycle.
Annual leave – accrual and forfeiture – interpretation of BCEA ss20 and 40 – employer leave policy inconsistent with s20(4) where it forfeits accrued leave before six months – suspension and ability to take leave – calculation of outstanding leave on termination.
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19 November 2014 |
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An arbitrator’s omission to expressly address some facts does not invalidate an award unless the outcome is unreasonable.
Labour law – Review of arbitration award – process‑related complaints – failure to expressly deal with material facts; review standard: reasonableness (Sidumo/Herholdt/SCA); substantive fairness of dismissal; conflict of interest and inconsistent treatment; appropriateness of sanction.
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17 November 2014 |
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Whether the applicant’s exclusion of qualified candidates for equity targets constituted an unfair labour practice.
Labour law – Unfair labour practice relating to promotion – exclusion of qualified candidates at shortlisting due to employment equity targets – procedural fairness of selection panels. Administrative law – Review of arbitration award – reasonableness standard (Herholdt) – whether award could reasonably be reached on the evidence. Remedy – setting aside appointment and re-advertising versus award of promotion or compensation. Costs – arbitrator’s discretion to award costs for defending fundamentally flawed processes. Public finance – possible fruitless and wasteful expenditure referral under PFMA.
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17 November 2014 |
| October 2014 |
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Reported
Dismissal for withholding subordinate's dishonesty and misuse of employer address upheld; review dismissed.
Labour law – review of arbitration award – Sidumo reasonableness standard; Misconduct – dishonesty and fiduciary duty to disclose subordinate's dishonest past; Sanction – reinstatement vs dismissal; Consistency/condonation – employer must have known of comparable breaches to be inconsistent; Acceptance of award payment does not necessarily waive review rights.
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30 October 2014 |
| September 2014 |
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Reported
Applicant failed to prove ousting from appointment was discrimination based on conscience, belief or political opinion.
Employment Equity Act s6(1) — alleged unfair discrimination on grounds of conscience/belief/political opinion; burden of proof in discrimination claims; role of circumstantial evidence and inferences of pretext where employer’s explanations are impugned; reasonableness of budgetary/organisational justifications for recruitment decisions.
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18 September 2014 |
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Employer's belated challenge refused; arbitrator unreasonably denied reinstatement based on irrelevant findings.
Labour law – review of arbitration award – condonation for late cross-review; peremption where employer complied with award; Rule 7A and transcribed record timing; s 193(2) LRA – reinstatement is primary remedy and employer bears onus to prove exceptions; review standard Sidumo/unreasonableness of arbitrator's refusal to reinstate.
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9 September 2014 |
| August 2014 |
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Whether the arbitrator’s unsupported credibility findings and disproportionate sanction rendered the applicants’ dismissals unreasonable and unfair.
Labour law – review of arbitration award – Sidumo reasonableness standard – award reviewable if a reasonable commissioner could not reach the decision. Credibility findings – commissioner must give reasons; unsupported inferences (e.g. ‘metaphorical mask’) may amount to gross irregularity/failure to apply mind. Burden of proof – employer must prove misconduct on a balance of probabilities; miscommunication can vitiate abandonment findings. Sanction – dismissal may be disproportionate where long service, clean record and inconsistent prior sanctions exist. Relief – correction/substitution of award; retrospective reinstatement and costs.
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21 August 2014 |
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Review dismissed for failing to plead s145(2) defects; dismissal for negligent driving held reasonable.
Labour law — Review of CCMA/ arbitration awards — s 145(2) LRA — statutory grounds for review must be pleaded; Sidumo reasonableness suffuses but does not replace s 145(2). Dismissal for negligent driving — prior warnings, duty to transport children and potential harm relevant to sanction. Schedule 8 Code of Good Practice — not exhaustive; mitigation factors considered in context rather than as a checklist. Procedural review — failure to demonstrate material error of fact or law or to reference arbitration record defeats review.
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12 August 2014 |
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A wages dispute governed by a national collective agreement renders workplace strike action unprotected under s65(3)(a) LRA.
Labour law – Strike law – Whether strike is protected – assess the true nature of the dispute (substance over form). Labour law – Collective agreements – Where agreement assigns wages and salaries to national bargaining, workplace bargaining and strike on that issue are prohibited under s65(3)(a) LRA. Labour law – Certificate of failure to settle – not a jurisdictional determination and not a prerequisite to challenging strike protection. Labour law – Interdict – applicant must show clear right, prospective harm and absence of alternative remedy to restrain unprotected strike.
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12 August 2014 |
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Fixed‑term municipal managers' contracts expired; post‑expiry employment invalid without staff‑establishment compliance under s66.
Municipal employment law — section 57 fixed‑term managerial contracts — effluxion of time; Municipal Systems Act s66 (staff establishment and job descriptions) — effect of non‑compliance (s66(4)) — post‑expiry employment null and void; entitlement to notice/pay on expiry vs early termination.
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5 August 2014 |
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Reported
A collective agreement excluding legal representation precludes an applicant's right to halt disciplinary proceedings absent exceptional prejudice.
Labour law – jurisdiction to interdict incomplete disciplinary proceedings; collective agreement governs disciplinary representation – legal representation excluded where code clearly so provides; chairperson’s discretion to permit lawyers exists only if not plainly and unambiguously excluded; urgent intervention requires exceptional circumstances; alternative remedy: arbitration de novo and statutory review/remedies under the LRA.
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5 August 2014 |
| July 2014 |
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An arbitration award stands if the commissioner considered the principal issue and reached a conclusion a reasonable arbitrator could make.
Labour law — review of arbitration award — review standard: whether arbitrator considered principal issue, evaluated evidence and reached reasonable conclusion (Goldfields/Herholdt); process-related Sidumo/Tao Ying approach not followed to overturn Herholdt; dismissal for alleged breach of information security policy; onus to prove misconduct; reviewability of reliance on disciplinary transcripts and witness evaluation.
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17 July 2014 |
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Dismissals were substantively unfair where employer reneged on its ultimatum and applied disciplinary measures inconsistently.
Labour law – dismissal – unprotected/illegal strike – effect of employer ultimatum and agreement on discipline; Procedural fairness – issuance of final written warnings without pre-dismissal inquiry – Schedule 8 Code of Good Practice; Substantive fairness – proportionality and consistency in sanctions; Remedy – retrospective reinstatement and phased backpay.
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9 July 2014 |
| June 2014 |
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A plea‑bargain accepted by an acting head is binding until lawfully set aside, preventing duplicate disciplinary proceedings.
Labour law – plea‑bargain/settlement in disciplinary proceedings – administrative decision by acting head – SIU Act "fit and proper" requirement – validity of agreement until lawfully set aside (Oudekraal).
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27 June 2014 |
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Reported
Dismissal void where employee had transferred by operation of law and former employer lacked disciplinary authority.
Labour law – dismissal – identification of employer; Transfer of staff by operation of law under Twelfth Constitutional Amendment and Cross-Boundary Municipalities Law Repeal Act 23 of 2005; Requirement for implementation protocol/agency agreement under s5(2) and s35 Intergovernmental Relations Framework Act; Dismissal by non‑employer is nullity; Review of arbitration award.
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5 June 2014 |
| May 2014 |
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CCMA has jurisdiction where contract and dismissal occurred in South Africa despite work being performed abroad.
Labour law – Jurisdiction – CCMA jurisdiction to determine unfair dismissal where contract concluded in South Africa but work performed abroad; dismissal occurring in South Africa gives rise to domestic jurisdiction. Interpretation – Purposive construction of the right not to be unfairly dismissed; presumption against extraterritoriality displaced by facts and remedial considerations. Review – Commissioner’s jurisdictional ruling not irrational or procedurally defective; review dismissed. Comparative authorities – Genrec and Astral Operations v Parry distinguishable on facts.
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6 May 2014 |
| April 2014 |
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Leave to appeal refused where employer’s procedural failures, non‑prosecution and abuse of process made success improbable.
Labour law — leave to appeal — test of reasonable prospects of success; procedural non‑compliance and non‑prosecution; default arbitration awards and rescission under s144 LRA; Rule 11 applications; abuse of court process; punitive costs (attorney‑and‑own‑client).
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17 April 2014 |
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Reported
Where no objections are lodged, the Registrar may vary a bargaining council's scope without invoking section 29 procedural steps.
Labour law – Bargaining council – Variation of registered scope under s58 – Representativeness of parties – Registrar's procedural obligations where no objections lodged (s29 and s58(3)) – Relevance of s49(1) – Appeal under s111 a rehearing of merits.
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16 April 2014 |
| March 2014 |
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Late referral deprived the commissioner of jurisdiction; acting in a post does not guarantee automatic promotion.
Labour law – unfair labour practice (non-promotion) – time limits for referral (s191(1)(b)(ii)) – ongoing disputes and dormancy – jurisdictional requirement to seek condonation – acting incumbency does not automatically confer right to absorption/promotion – review for jurisdictional defect and unreasonable outcome (Sidumo standard).
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12 March 2014 |
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Condonation granted; procedural flaws found but appointment substantively reasonable given employment equity, review dismissed.
Labour law – Review of arbitration award (s145 LRA) – Procedural irregularity in promotions – Ratification panel deviating from evaluation panel's preferred list – Employment equity and representativity as justification for appointing lower‑scoring candidate – Reasonableness standard (Sidumo/Herholdt) – Condonation for late review.
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5 March 2014 |
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An employer may not use common-law set-off to deduct for employee-caused loss without complying with BCEA s34 safeguards.
Labour law – BCEA s34 – deductions from remuneration – deductions for loss or damage caused by employee – statutory requirements (written agreement, fair procedure, liquidated amount, one-quarter cap) – common-law set-off cannot be used to circumvent s34(1)(a) and s34(2) – disciplinary finding alone insufficient to authorize deduction.
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4 March 2014 |
| February 2014 |
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Reported
Arbitrator’s unreasonable interpretation of CV dates vitiated award; deliberate misrepresentation justified substantively fair dismissal.
Labour law – unfair dismissal – misrepresentation in curriculum vitae – interpretation of dates in CV entries; dishonesty as a fair‑reason for dismissal; review for unreasonableness/gross irregularity; defence that employer could have discovered misrepresentation rejected.
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25 February 2014 |
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Although the commissioner misconceived parts of the enquiry, his reinstatement award was upheld as a reasonable outcome.
Labour law – Review of arbitration award – Sidumo reasonableness test; misconceiving nature of enquiry; abuse of employer relocation policy v. dishonesty; de novo arbitration – relevance of timing of benefit payment; reinstatement and remedial relief; costs.
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18 February 2014 |
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Commissioner’s award upheld: dismissal procedurally and substantively unfair; compensation of twelve months sustained.
Labour law – review of CCMA arbitration award – Sidumo outcome-based reasonableness test; procedural fairness – reasonable apprehension of bias by disciplinary chairperson; substantive fairness – insufficiency of evidence linking employee to unauthorised removal and supply of products; defamation – elements and application; sanction – dismissal inappropriate; compensation – discretionary award of 12 months’ salary upheld.
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13 February 2014 |
| January 2014 |
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Substantively fair retrenchment but procedurally unfair for failure to consult on dismissal consequences; 12 months' compensation awarded.
Labour law – Dismissal for operational requirements – Section 189 consultation obligations – substantive fairness of restructuring and selection on skills grounds – procedural unfairness where employer fails to consult on timing, mitigation and severance consequences.
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31 January 2014 |
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Failure to follow collective-agreement transfer procedures rendered the police transfers reviewable and set aside.
Collective agreement – Transfer policy and procedures – Collective agreement binds State as employer and varies employment contracts – Failure to comply with agreed transfer procedure renders transfer reviewable; Labour Court jurisdiction under LRA s158(1)(h) – Employee entitled to reasons and opportunity to make representations.
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31 January 2014 |
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Review dismissed: arbitrator’s reinstatement award reasonable where employer failed to prove dishonesty or justify dismissal.
Labour law – Review of CCMA arbitration award – Section 145 review and gross irregularity – Sidumo reasonableness standard – employer’s burden to prove misconduct and prejudice – sanction; dismissal vs reinstatement.
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8 January 2014 |
| January 2012 |
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Reported
Dismissals upheld as substantively fair where employees were found to have threatened relief staff and management during an unprotected strike.
Labour law – unfair dismissal – unprotected strike versus separate misconduct – whether dismissal for intimidation and threatening conduct was substantively fair; selective discipline; witness credibility and identification of perpetrators.
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24 January 2012 |
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Applicant failed to prove dismissal where employment was transferred under section 197 with her consent.
Labour law – transfer of business – section 197 LRA – transfer of employment does not constitute dismissal; Onus in dismissal disputes – section 192 LRA – employee must establish existence of dismissal; Consent to transfer and coercion – communications about possible retrenchment do not necessarily vitiate consent; Operational-requirements dismissals (retrenchment) – applicant failed to prove dismissal or unfairness.
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2 January 2012 |
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Joinder of the client was refused because section 198 LRA prevents client liability for dismissals by a labour broker.
Labour law – Joinder – Temporary employment service (labour broker) – Section 198 LRA – Client liability limited; client not liable for dismissals by labour broker absent s198(4) contravention – Joinder of client refused – Costs awarded.
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2 January 2012 |
