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Citation
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Judgment date
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| December 2015 |
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Whether the respondent’s lay-off and short-time were lawful where the MEIBC Main Agreement excludes its operations.
Labour law – Collective agreements – MEIBC Main Agreement exclusion for iron/steel/ferro-alloys; applicability of plant-level agreements; lawfulness of unilateral lay-offs and short-time; res judicata defence unsuccessful; relief: reinstatement or payment of lost wages.
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17 December 2015 |
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Reported
A limited restraint protecting an employer’s customer connections against a former sales representative was held reasonable and enforceable.
Labour / Restraint of trade – enforceability of post‑employment restraint; protection of trade connections versus trade secrets; Basson v Chilwan reasonableness test; onus on former employee to prove unreasonableness; limited geographic, temporal and product scope permitted.
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15 December 2015 |
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Reported
Arbitrator’s finding of unfair dismissal set aside: dismissal of payroll officer was fair given serious misconduct and inferable breakdown of trust.
Labour law — Unfair dismissal — Review of CCMA arbitration award — Reasonableness standard (Sidumo) — Failure to load garnishee order and disclosure of payslips by payroll officer — Breakdown of trust — Edcon v Pillemer interpreted — Evidence at arbitration admissible to show irretrievable breakdown or breakdown may be inferred from nature of misconduct.
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10 December 2015 |
| November 2015 |
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Reported
Commissioner wrongly found res judicata; misconduct-based unfair dismissal remitted to CCMA for arbitration; employer pays costs.
Labour law – CCMA jurisdiction – res judicata and functus officio – striking matter from CCMA roll not a final decision – correctness standard for jurisdictional rulings – remit unfair dismissal (misconduct) to arbitration – costs in light of LRA objectives.
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26 November 2015 |
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Failure to consider demotion or loss of a site‑specific salary made the arbitration award unreasonable and reviewable.
Labour law – Unfair labour practice s 186(2)(a) – Demotion and provision/deprivation of benefits – Site‑specific remuneration/allowances as benefits – Jurisdiction of CCMA – Arbitrator’s reasonableness and review where commissioner fails to consider demotion/benefit issues; applicability of Apollo Tyres.
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24 November 2015 |
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Unexplained late review and delayed condonation barred relief; merits lacked reasonable prospects, review dismissed with costs.
Labour law — Review of arbitration award — s145 LRA six-week time limit; meaning of "apply" — Rule 3(1) case-number application distinct from filing review papers; condonation for late filing — unexplained, excessive delay fatal; prospects of success — credibility findings and reasonableness of commissioner’s award; dismissal with costs.
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19 November 2015 |
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Arbitrator misconstrued evidence; rescission ruling set aside, default award rescinded and matter remitted for de novo arbitration.
Labour law – rescission of default arbitration award; test for rescission: explanation for default and bona fide defence; arbitrator’s reasoning reviewable if unreasonable or misconstruing evidence; condonation for short delay; remittance for rehearing.
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17 November 2015 |
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Reported
Deemed archiving under the Practice Manual requires good cause to revive; thin explanation and weak merits defeat revival.
Practice Manual – deemed archiving of review files – enforceable; revival under clause 16.2 requires "good cause" assessed by rescission principles (reasonable explanation, bona fides, prospects of success); failure to prosecute review may justify dismissal under Rule 11(3); section 158(1)(c) – arbitration award made an order of court; costs on party-and-party scale.
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13 November 2015 |
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Reported
Commissioner's failure to consider unchallenged audit evidence and polygraph refusals rendered reinstatement unreasonable and was set aside.
Labour law — review of arbitration award — material irregularity where commissioner failed to consider unchallenged system log evidence and written submissions. Evidence — employer witness explaining computer audit reports — weight of unchallenged documentary evidence. Contractual obligations and polygraph testing — refusal to undergo contractually agreed polygraph may constitute breach; adverse inference may be drawn in appropriate circumstances. Procedural fairness — commissioner’s unsupported findings susceptible to review where reasons are inadequate and outcome irrational.
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13 November 2015 |
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Claim for unpaid performance bonus dismissed because entitlement and quantum could not be established without the required evaluation.
Labour law – section 77(3) BCEA – claim for unpaid performance bonus – requirement that contractual performance evaluation be conducted before entitlement and quantum can be established. Contract law – condition precedent – performance appraisal as prerequisite to bonus payment and quantification. Evidence – prior bonus payment or council resolutions do not by themselves establish entitlement for a different year. Procedure – claimant’s failure to provide requested portfolio impeded assessment; section 77 appropriate only where contractual entitlement and amount are clear.
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13 November 2015 |
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A private arbitrator's award may only be set aside on narrow s33(1) grounds; alleged errors of fact or law do not justify review.
Arbitration — private arbitration awards — review under Arbitration Act s33(1) — limited grounds: misconduct, gross irregularity, excess of powers — arbitrator's factual findings not lightly reviewable; right to be wrong — procedural fairness in dismissal — legal representation — striking out scandalous allegations and costs de bonis propriis; referral to Law Society.
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13 November 2015 |
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An immigration officer must take reasonable steps under s41 to verify a detainee's status before release; failure justified dismissal.
Labour law – review of arbitration award; Immigration law – s41 Immigration Act requires reasonable steps to verify detained persons' identity/status before release; Failure to produce departmental training manual does not negate statutory verification duty; Credibility findings and substantively fair dismissal upheld.
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13 November 2015 |
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Arbitrator misapplied balance of probabilities and irrationally rejected corroborative evidence; court substituted a finding of fair dismissal.
Labour law – review for gross irregularity – misconstruction of enquiry; standard of proof – balance of probabilities v. beyond reasonable doubt; evaluation of corroborative evidence and credibility; hearsay – distinction between proving truth and proving that a statement was made; substitution of arbitration award on review.
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12 November 2015 |
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Retrenchments substantively unfair where employer fails to prove fair, objective application of selection criteria.
Labour law – retrenchment – substantive fairness – operational requirements established but employer must prove fair and objective application of selection criteria. Selection criteria – skills, performance, attendance and safety legitimate given operational needs; failure to produce evaluation evidence renders selection substantively unfair. Remedy – where reinstatement impracticable, compensation appropriate (eight months' pay).
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11 November 2015 |
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Reported
Anticipation permitted; strike notice sufficient and strike remained protected despite political/third‑party activity.
Labour law – interim interdicts and Rule 8(10) anticipation; strike notices – sufficiency under s64(1)(b) LRA; protected strike – when violence or third‑party political involvement transmutes a strike into unprotected action; remedies for strike‑related unlawful conduct (contempt/criminal).
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9 November 2015 |
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CTI preserves incumbents' existing salary/benefits but does not entitle abolished posts to benefit from later regradings.
Labour law – Collective agreements – Validity and continuity of pre‑LRA Transvaal Agreement as collective agreement under Establishment Agreement and circular. Interpretation – "contractual to holder" (CTI) – means retention of incumbent's existing salary/benefits so not worse off, not entitlement to future regradings or higher post levels. Reorganisation/demotion – abolished or downgraded posts do not acquire rights to subsequent grading increases. Review – arbitrator's interpretation reasonable; no reviewable irregularity. Jurisdiction – bargaining council competent to decide interpretation dispute.
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6 November 2015 |
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The respondent's dishonesty, fabrication of evidence and lack of remorse made dismissal substantively fair despite procedural delay.
Labour law – review of arbitration award – reasonable decision‑maker test (Sidumo) – failure to consider material facts – dishonesty, fabrication of evidence and lack of remorse – appropriateness of dismissal for consumption of company property in anti‑pilferage context; procedural unfairness (delay) but no compensation where employee misled employer and commissioner.
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6 November 2015 |
| October 2015 |
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Reported
Respondent union held accountable and ordered to pay punitive costs for failing to prevent members' unlawful picketing conduct.
Labour law – picketing rules – section 69 LRA – union accountability for members' conduct; Picketing – duty to take all reasonable steps to ensure compliance; Costs – punitive (attorney-and-client) costs where union fails to curb unlawful strike conduct; Evidence – obligation to investigate tendered evidence and respond promptly to employer complaints.
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20 October 2015 |
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Incomplete/illegible arbitration record prevents review; no patent irregularity on award, so leave to appeal refused.
Labour law – review of CCMA/commissioner awards – requirement of a complete and legible record for review – illegible handwritten notes and failure to transcribe – review cannot generally proceed on award alone unless patent irregularity or no material factual dispute exists; gross irregularity/unreasonable outcome standard.
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6 October 2015 |
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Reported
An employer may employ replacement labour only while a protected strike continues, not after it has ended.
Labour law – replacement labour – interpretation of "in response to a strike" in section 74(1)(b) of the LRA – employer may employ replacement labour only while a protected strike pertains; lock-outs; constitutional right to strike; Endumeni statutory interpretation; refusal to follow Agrinet.
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6 October 2015 |
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Commissioner’s insistence on a written rule and failure to assess credibility made reinstatement unreasonable; dismissal was fair.
Labour law – review of CCMA arbitration award under s145 LRA – gross irregularity and unreasonableness; tacit workplace rules established by practice; commissioner’s duty to assess credibility and probabilities; gross negligence and nexus to loss; fairness of dismissal.
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5 October 2015 |
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Reported
Whether the Minister's revocation of the statutory Registrar was reviewable under PAJA and the principle of legality.
Administrative law – review of Ministerial revocation of a statutory office – whether decision amounts to administrative action under PAJA; alternatively reviewable under the principle of legality – material failure to consider ministerial submission; rationality, procedural fairness and remit of section 108 v section 208A – reinstatement ordered.
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5 October 2015 |
| September 2015 |
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Arbitrator's finding of dishonest travel-allowance claims justified demotion; demotion did not interrupt the applicant's continuous service.
Labour law – Review of arbitration award – Sidumo irrationality test – Unfair labour practice (demotion) – Onus rests on employee in unfair labour practice disputes – Dishonesty in travel-allowance claims – Continuity of employment despite demotion.
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30 September 2015 |
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Employer’s failure to produce reasons and manifest selection irregularities rendered promotion process unfair and appointment invalid.
Labour law – promotion – unfair labour practice – fairness of process – employer’s duty to produce screening/application forms and reasons for non-shortlisting – review where arbitrator fails to apply fairness test – irregular selection panels (identical scoring, arithmetic errors, undeclared interest) – invalid appointment.
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30 September 2015 |
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Reported
Employer-required psychiatric testing of an employee with bipolar disorder was unlawful and dismissal was automatically unfair.
Employment Equity Act s 7 – medical testing prohibited unless justifiable; s 6 – discrimination on disability grounds; Labour Relations Act s 187(1)(f) – dismissal for a prohibited reason (disability) is automatically unfair; contractual clauses requiring employer-directed medical testing may be void if inconsistent with s 7.
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22 September 2015 |
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Reported
An exception under Rule 23 cannot attack affidavits in motion proceedings; condonation refusal for excessive delay was reasonable.
Labour law – review of bargaining council/commissioner condonation ruling – s158(1)(g) LRA; factors for condonation: delay, explanation, prospects of success, prejudice. Civil procedure – Rule 23 Uniform Rules (exception) applies to pleadings, not affidavits; exceptions are not the proper vehicle in motion proceedings – answering affidavit required. Judicial review – reasonableness standard: commissioner’s refusal of condonation for excessive unexplained delay was within reasonable bounds.
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10 September 2015 |
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The employee's dismissal for falsifying a client's spouse's signature in a banking role was fair; arbitration mitigation unreasonable.
Labour law – unfair dismissal – gross dishonesty/misrepresentation in banking role – breach of fiduciary duty and trust – dismissal justified. Sanction – splitting of charges and length of service not sufficient mitigation where dishonesty is gross. Review – commissioner’s sanction unreasonable and outside range of reasonable outcomes; ABSA v Naidu applied.
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8 September 2015 |
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Reported
Deeming clause in s198A creates concurrent employer status: TES remains employer while client is deemed employer for LRA purposes.
Labour law – Temporary Employment Services (TES) – s 198 and s 198A LRA – effect of deeming clause; augmentation versus substitution of employer status. Interpretation – deeming provision in s 198A(3) operates for purposes of the LRA only and creates concurrent employer responsibilities. Administrative law – CCMA arbitration award reviewable where material error of law concerns a question not exclusively entrusted to the commissioner. Procedure – interest of placed workers; joinder and right to be heard when their status is directly affected.
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8 September 2015 |
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A former manager’s access to confidential commercial information justified partial enforcement of a restraint, reduced to one year.
Restraint of trade – confidential commercial information – protectable employer interest – managerial access to Exco and financial system – employee joining competitor – partial enforcement and reduction of restraint period to one year – urgency condoned.
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8 September 2015 |
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Leave to appeal granted after absolution was entered where claimant conceded contractual cancellation and failed to plead damages.
Labour law – specific performance of employment contract – admission of contract cancellation – absolution from the instance – sufficiency of pleading for alternative damages claim – condonation of late application for leave to appeal – whether issue is waiver or failure to prove prima facie case.
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8 September 2015 |
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Review upheld in part: arbitrator’s failure to address procurement evidence led to substitution of guilt and dismissal deemed fair.
Labour law – Review for reasonableness of arbitration awards; omission to consider evidence must render outcome unreasonable; procurement irregularities and bypassing buyer involvement; standard of sanction – dismissal for breach of procurement integrity and trust.
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4 September 2015 |
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Members of a close corporation deregistered before repeal can be held personally liable under the erstwhile s 26(5).
Close corporations – deregistration – personal liability of members under repealed s 26(5) of the Close Corporations Act; repeal savings – Interpretation Act s 12(2)(c) preserving accrued liabilities; prescription – interruption and timing; Labour Court competence to grant declaratory relief and costs.
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2 September 2015 |
| August 2015 |
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Urgent review of a union suspension was struck off for lack of urgency; applicant ordered to pay hearing costs.
Labour law – Union internal discipline – Jurisdiction to review lawfulness of suspension (ultra vires) – Urgent applications – requirement to justify abridgement of rules and exhaustion/recourse to internal remedies – Costs for unnecessary urgent proceedings.
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28 August 2015 |
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A head of department lacks authority to discipline an acting head absent a lawful delegation.
Public Service – discipline and suspension – authority to institute disciplinary action against acting heads of department – Public Service Act s3B (career incidents and Premier’s powers) – PFMA accounting officer duties – principle of legality and delegation.
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27 August 2015 |
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Reported
Employer failed to meaningfully consult under s189; employee's competing business and untruthfulness reduced compensation to one month.
Labour law – Operational-requirements dismissal – s189 consultation – requirement of meaningful joint consensus-seeking process and disclosure of relevant information.* Remedies – s193–194 LRA – discretionary, just and equitable compensation for procedural unfairness; limits and factors to consider (extent of procedural deviation; employee conduct; patrimonial loss; employer's conduct).* Employee conduct – competing business and untruthful evidence may justify reduction of compensation.
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20 August 2015 |
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Reported
Strict scrutiny applies to condoning late s145 reviews; egregious unexplained delay warrants refusal, dismissal and costs against applicant.
Labour law – condonation – late section 145 review application – strict scrutiny required in individual dismissal matters – egregious delay and lack of compelling explanation justify refusal of condonation; prospects of success immaterial. Interpretation and application of Queenstown Fuel Distributors, Van Wyk and Colett in condonation jurisprudence. Costs – applicant ordered to pay where condonation refused for gross delay.
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18 August 2015 |
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Reported
A majority‑supported collective retrenchment agreement validly extended under s 23(1)(d) binds non‑party employees and settles related disputes.
Labour law – retrenchment – collective agreements – extension to non‑party employees under s 23(1)(d) – majoritarianism – effect of extension in settling disputes (including disclosure disputes); s 189A(13) relief – Labour Court jurisdiction to set aside collective agreements; CCMA lacks power to invalidate collective agreements.
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17 August 2015 |
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Reported
An applicant’s election to pursue a retrenchment at the CCMA precludes a belated jurisdictional challenge based on pregnancy.
Labour law – CCMA jurisdiction – automatically unfair dismissal (pregnancy) – election to pursue operational-requirements dismissal at CCMA – commissioner’s duty not to recharacterise parties’ dispute – review standard: reasonableness of arbitration outcome – substitution of award.
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17 August 2015 |
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Reported
A bargaining council cannot separately enforce rule-based costs via section 33A; such costs must be awarded by an arbitrator and executed.
Bargaining council enforcement — interpretation of constitution and main collective agreement; clause 2.41 costs awards are discretionary awards by arbitrators in underlying disputes, not independent contractual rights; enforcement of costs awarded to council by arbitrator via clause 2.40 certification/section 143 execution; section 33A enforcement intended to enforce employment terms/benefits, not to separately enforce council costs; jurisdictional review test: 'right or wrong' (de novo) where jurisdictional fact is justiciable.
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14 August 2015 |
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Reported
Court set aside two SETA funding regulations for failure to consult the National Skills Authority and as irrational and ultra vires.
Administrative law – consultation requirement under Skills Development Act s36 – failure to consult National Skills Authority on material changes renders regulations reviewable; PAJA – undue delay and condonation; Rationality review – reduction of mandatory grant irrational; Ultra vires – sweeping mechanism conflicts with statutory funding scheme (s14(3), s27(2)); Labour Court jurisdiction over SDA matters (s31).
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7 August 2015 |
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Leave to appeal refused where the applicant failed to show reasonable prospects or any compelling reason to challenge the compensation order.
Labour law – leave to appeal – application to Labour Court for leave to appeal governed by Superior Courts Act s17 (applied via LRA s151) – test requires reasonable prospects of success or compelling reasons. Review of arbitration award – substitution: dismissal found substantively fair but procedurally unfair with compensation awarded. Leave to appeal refused where applicant failed to establish prospects or compelling reasons.
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7 August 2015 |
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Reported
A CCMA conciliation settlement not made an arbitration award is contractual and not reviewable under the LRA; rescission lies in contract law.
Labour law – Conciliation settlements – Settlement concluded by parties at CCMA is contractual, not a commissioner’s decision; not reviewable under LRA unless made an arbitration award (s142); allegations of undue influence to be pursued via contract law remedies (rescission, duress, misrepresentation).
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4 August 2015 |
| July 2015 |
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Reported
Section 197 not triggered where change in service provider lacked transfer of an identifiable going concern.
Labour law; s 197 LRA – change of service provider; transfer of business as a going concern; autonomous economic entity/economic-entity test; need for integral transferred components (assets, employees, customers, continuity); mere award of contract insufficient; model tender clause 'subject to s197' not determinative.
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15 July 2015 |
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A 12‑month nationwide restraint was unenforceable as unreasonable despite protectable confidential information; applicant's interdict dismissed.
Labour law – restraint of trade – urgency; alleged duress in procurement of restraint; protectable interests (confidential information v. customer connections); reasonableness of duration and geographic scope; balancing contractual autonomy and freedom to work.
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14 July 2015 |
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Reported
Court held dismissal is a jurisdictional question requiring determination; arbitration award enforcement suspended pending that determination.
Labour law – jurisdiction of CCMA – section 191(1) time limit and condonation – jurisdictional prerequisite of proof of dismissal – distinction between dismissal and agreed termination (medical boarding) – adequacy of arbitration record for judicial determination.
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10 July 2015 |
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An arbitrator must prioritize reinstatement under s 193 LRA; compensation unjustified where exceptions are not proven.
Labour law – unfair dismissal – section 193 LRA – primacy of reinstatement – exceptions (intolerability/impracticability) – misdirection by arbitrator – compensation award set aside – matter remitted for determination of relief.
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9 July 2015 |
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Reported
Late additional affidavits disallowed; refusal to postpone without assessing relevance and prejudice rendered arbitration award reviewable and set aside.
Labour law – review of arbitration award – refusal to grant postponement – failure to ascertain relevance of absent witness and balance prejudice – reviewable irregularity. Practice – late additional affidavits and augmenting case on review – absent exceptional circumstances, post-pleading additions disapproved. Procedural fairness – commissioner’s handling of postponement and costs – must consider relevance, prejudice and balancing measures (including costs orders). Allegation of bias – unsupported acquaintance between commissioner and representative insufficient for review.
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8 July 2015 |
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Reported
Court ordered reinstatement where employer dismissed employee without contractual notice and without completing required performance enquiry.
Employment law – breach of contract – summary termination without contractual written notice; incorporation of incapacity/poor-performance policy into contract – requirement to hold performance enquiry prior to dismissal; remedy – specific performance (reinstatement) under s77A(e) BCEA; payment of notice pay does not cure failure to issue notice where specific performance is sought; discretion to refuse specific performance only in presence of inequity, proven hardship or breakdown of trust.
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3 July 2015 |
| June 2015 |
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Arbitrator unreasonably accepted equivalence of a short training course to a Bachelor’s degree; award set aside and remitted.
Labour law – unfair labour practice (failure to promote) – necessity for employer to prove successful candidate met advertised minimum qualifications – arbitrator’s duty to require/consider proper evidence on qualification equivalence – review for unreasonable outcome and misallocation of onus; condonation for late review; costs for late answering affidavit.
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30 June 2015 |
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Reported
Court may exempt PFMA‑governed public employers from furnishing security under section 145(7)–(8) LRA and stayed enforcement pending review.
Labour law – Section 145(7)–(8) LRA – "to the satisfaction of the Court" and "Unless the Labour Court directs otherwise" confer judicial discretion; constitutional reading required; PFMA-governed public entities' funding may satisfy purpose of security; stay of enforcement pending review.
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26 June 2015 |
