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Citation
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Judgment date
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| November 2019 |
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Reported
Urgent application to interdict employer lock-out dismissed for lack of urgency and because lock-out was lawful.
Labour law – Lock-out – Lawful response to unresolved mutual interest dispute after conciliation certificate – Strike notice in abeyance does not preclude lock-out – Section 64(1)(c) notice requirements (48 hours and identification of issue) – Urgency and final relief - self-created delay.
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29 November 2019 |
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Reported
Dismissals for participation in an unprotected strike were substantively fair but procedurally unfair; no compensation awarded.
Labour law – Unprotected strike; ultimatums and Labour Court interdicts; duty to afford audi alteram partem before dismissal; substantive fairness of strike dismissals; compensation discretion under section 194 of the LRA.
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29 November 2019 |
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Labour Court enforces a limited client‑and‑supply restraint but refuses broader prohibition and declines delictual jurisdiction.
Labour law – Restraint of trade – enforceability and reasonableness; protectable interest in proprietary training methods, products and client connections; delimitation between general skillsets and exclusive know‑how; Labour Court jurisdiction limited to contractual employment disputes — delictual claims for inducement to breach are not within Labour Court jurisdiction.
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22 November 2019 |
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Reported
The Labour Court lacks jurisdiction to hear a review once lapsed under the Practice Manual absent formal reinstatement.
* Labour Court Practice Manual – clause 11.2.7 – review applications are urgent; must be prosecuted and papers filed within 12 months or they lapse and are archived.
* Requirement for condonation/reinstatement – a separate Rule 11/condonation application required to show good cause/truly exceptional circumstances.
* Jurisdiction – archived/lapsed review applications deprive the Court of jurisdiction unless properly reinstated.
* Pre-enrolment hearings or interim orders do not cure non-compliance with Practice Manual time limits.
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14 November 2019 |
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The 30‑day CCMA referral period runs from when the employee is informed of the final appeal outcome; late review without condonation dismissed.
* Labour law – dismissal – internal appeal – s191(1)(b)(i) LRA – 30‑day CCMA referral period runs from date employee is informed of employer’s final decision (including appeal outcome).
* Civil procedure – CCMA referral date – date of filing at the CCMA (not service on employer).
* Review – s145 LRA six‑week time limit for review of arbitration awards – condonation required for late review; s158(1)(g) – alternative review must be within reasonable time.
* Costs – de bonis propriis – attorneys’ negligence in a serious degree may attract costs against attorneys personally.
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8 November 2019 |
| October 2019 |
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Reported
Failure to issue a section 189(3) notice renders the retrenchment procedure procedurally unfair; termination set aside.
Labour law – retrenchment procedure – section 189(3) notice peremptory; s 189A(13) remedies for procedural non‑compliance; facilitation and statutory time‑triggers; intervention limited to substantial procedural failures.
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28 October 2019 |
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Reported
Branches of a trade union lack legal standing to sue; individual members or the union must bring disputes under s 158(1)(e).
Labour law – Jurisdiction under s 158(1)(e) of the LRA – Standing – Branches of a trade union are not separate legal persons and lack locus standi to sue; members must sue in their personal capacities or the union must authorize litigation; s 38 Constitution not a bypass to statutory standing rules; costs may be awarded personally against representatives who pursue meritless representative litigation.
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24 October 2019 |
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Reported
A written, signed grievance outcome can be a binding settlement agreement enforceable by the Labour Court.
Labour law – Settlement agreements – Section 158(1)(c) and (1A) LRA – Common-law contract requirements (offer, acceptance, animus contrahendi, ad idem) – Written grievance outcome signed by parties can constitute enforceable settlement – Repudiation versus rescission of agreement – Condonation of late process where interests of justice require.
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18 October 2019 |
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Reported
An employer cannot avoid LRA unfair dismissal jurisdiction by labelling termination as a contractual breach.
* Labour Law – s158(1B) LRA – limits on interim review of rulings made during conciliation/arbitration; review only if just and equitable.
* Jurisdiction – provisional assumption of jurisdiction by commissioner to hear evidence on jurisdictional points not an immediate reviewable determination.
* Employment law – characterisation of termination – acceptance of repudiation/contractual breach that effects termination remains a "dismissal" under s186.
* Interim relief – requirements for stay: prima facie right, irreparable harm, balance of convenience; failure to establish same justifies continuation of arbitration.
* Costs – de bonis propriis costs against attorneys for abusive or dilatory litigation conduct.
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18 October 2019 |
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Reported
Retranchment found substantively and procedurally unfair where oral agreement on training and mileage was not reduced to writing, pregnancy claim dismissed.
Labour law – retrenchment – s189 LRA – duty to engage in meaningful, consensus-seeking consultation; alternative employment – oral agreement on training and AA mileage rate not reduced to writing; substantive fairness – employee did not unreasonably refuse reasonable alternative; procedural fairness – employer’s failure to clarify and cement oral consensus and to consult before reallocating duties tainted process; automatically unfair dismissal claim for pregnancy – no causal link.
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15 October 2019 |
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Reported
An employer that elects a disciplinary sanction cannot reverse it absent exceptional circumstances; reversal here rendered dismissal substantively unfair.
* Labour law — disciplinary procedure — review and substitution of sanctions — employer entitled to review where established practice exists but must prove exceptional circumstances to revisit an elected sanction. * Doctrine of election — employer bound by sanction chosen through disciplinary chairperson absent exceptional justification. * Substitution of sanction without lawful foundation vitiates action; remedy may be reinstatement and back pay.
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11 October 2019 |
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Reported
Employer may dismiss for off-duty racist social media conduct where it seriously damages the employment relationship.
Labour law – off-duty social media misconduct – employer competence to discipline – multifactorial inquiry into nexus with employer and reputational harm – parity principle – freedom of expression vs. hate speech in employment context.
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11 October 2019 |
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Reported
Employee resigned prematurely without exhausting grievance remedies; no constructive dismissal and bargaining council lacked jurisdiction.
Labour law — Constructive dismissal (s186(1)(e)) — elements: resignation, objective intolerability, employer causation; grievance procedure and resignation as last resort; jurisdictional review under s145/158(1)(g) — de novo 'right or wrong' approach; arbitrator’s failure to make credibility findings and reliance on uncorroborated medical evidence reviewable.
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8 October 2019 |
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Reported
An SAHRC research report is advisory, not legally binding, and a court may not confirm or enforce its recommendations.
• Chapter Nine institutions – SAHRC powers – distinction between monitoring/research and investigatory/remedial functions; • Administrative law – advisory research reports are not binding; Oudekraal principle does not convert research recommendations into enforceable orders; • Separation of powers – SAHRC may recommend but cannot direct legislative amendment; • Employment Equity Act – status of SAHRC recommendations regarding definition of designated groups and needs-based targeting.
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8 October 2019 |
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Reported
Dismissal held substantively fair but procedurally unfair; MEC erred by increasing sanction without hearing, six months' pay ordered.
* Employment law – disciplinary proceedings and appeals under the Employment of Educators Act (Schedule 2); right to be heard before increase of sanction.
* Procedural fairness – unreasonable delay in finalising appeal can render dismissal procedurally unfair.
* Review of arbitration awards – failure to give reasons does not always amount to reviewable irregularity if outcome is reasonable on evidence.
* Remedy – reinstatement inappropriate where trust is irreparably broken; compensation awarded.
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4 October 2019 |
| September 2019 |
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Reported
Leave to appeal granted on novel question whether an in‑principle pay‑progression demand can attract protected strike status.
Labour law – protected strike – legitimacy of an ‘agreement in principle’ pay‑progression demand – novel question whether such in‑principle demands are disguised remuneration demands; Superior Courts Act s18 – suspension of decision pending leave to appeal; limits on interim interdictory relief pending appeal.
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20 September 2019 |
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Underground sit‑in was unprotected; dismissals were substantively disproportionate though procedures were largely fair.
Labour — dismissal for participation in unprotected strike — underground sit‑in — mine safety risks — employer’s duty to engage recognised shop‑steward leadership — ultimata and disciplinary enquiries — substantive disproportion and tailored reinstatement/compensation remedies.
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19 September 2019 |
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Reported
Non-disclosure of materially adverse prior-employment facts can justify dismissal for senior positions.
Labour law – recruitment disclosure – non-disclosure of material prior-employment facts; materiality test for disclosure in senior appointments; arbitrator’s error of law and review for unreasonableness; substitution of arbitration award; costs under s 162 LRA.
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18 September 2019 |
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Reported
Arbitrator’s finding of possession and dismissal upheld where employee denied possession and failed to put alternative version to the complainant.
Labour law – review of arbitration award; criminal-law elements of possession and receiving stolen property (common law; ss 36 and 37 General Law Amendment Act); credibility – failure to put alternative version to complainant; procedural consequence of denying possession then offering alternative explanation; dismissal as appropriate sanction for police officer convicted of receiving/possessing stolen goods.
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18 September 2019 |
| August 2019 |
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Reported
Review dismissed: Applicant failed to comply with Rule 7A record rules and s145(8) security requirements.
Labour Court procedure – Rule 7A compliance – official record via Registrar required; Private transcripts not acceptable without CCMA reconstruction; LRA s145(7)–(8) – security mandatory for employer review applicants unless Court directs otherwise; failure to comply renders review defective; costs for non-compliance.
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27 August 2019 |
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Reported
Arbitrator’s credibility and reasonableness findings upheld; dismissal found procedurally and substantively fair.
Labour law – review of arbitration award – reasonableness/Sidumo standard – credibility findings – evidentiary burden shifts after employer’s prima facie proof of misconduct – procedural and substantive fairness of dismissal upheld.
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20 August 2019 |
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Precautionary suspensions validly delegated under a union constitution do not justify interim reinstatement.
* Labour law – trade union constitutions – precautionary suspension powers; delegation of authority to deputy general secretary; validity of suspension letters. * Interim relief – requirements (prima facie right, irreparable harm, balance of convenience) – failure to establish prima facie right. * Internal remedies – no appeal against precautionary suspension where constitution limits appeals to disciplinary findings. * Section 158(1)(e) LRA – disputes about non-compliance with union constitution may be adjudicated, but interim relief demands are strict.
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16 August 2019 |
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Reported
Labour Court lacks general supervisory jurisdiction to set aside CCMA subpoenas; review under s158(1)(g) is the appropriate remedy.
Labour Court jurisdiction – CCMA subpoenas under s142 LRA – absence of general supervisory power – appropriate remedy: review under s158(1)(g) – arbitrator’s powers to manage subpoenas and curb abuse of arbitration process.
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16 August 2019 |
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Reported
A concerted, destructive work stoppage lacking procedural compliance was an unprotected strike; rule nisi confirmed, union pays costs.
Labour law – Strike (s 213 LRA) – Concerted refusal to work – Protected versus unprotected industrial action – Procedural compliance – Violent and destructive conduct – Urgent interdictory relief – Citing members en masse – Union accountability and costs.
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15 August 2019 |
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Reported
Condonation granted; arbitrator reasonably weighed hearsay transcripts and reinstatement award withstands review.
Labour law — review of arbitration award — condonation for late referral; Procedure — failure to file complete record (Rule 7A) and late heads; Evidence — admissibility and weight of hearsay/transcripts where complainant unavailable (deportation); Standard of review — Sidumo reasonableness test; Costs — no punitive costs despite procedural non‑compliance.
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14 August 2019 |
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Contempt application against CCMA for postponing a remitted arbitration was struck from the roll for lack of urgency and procedural defects.
* Contempt of court – CCMA – Alleged failure to implement remittal order – Requirement of wilful and mala fide non-compliance and joinder of responsible persons. * Urgency – Distinct requirements for urgent relief; interdict tests inappropriate for urgency. * Labour Law – Review of commissioner’s rulings – s 158(1)(g) LRA as alternative remedy. * Practice and procedure – Compliance with practice manual for contempt applications. * Costs – Frivolous/vexatious litigation warranting punitive attorney-and-client costs.
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13 August 2019 |
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Reported
CCMA lacked jurisdiction because the dispute was a refusal-to-bargain/bargaining-unit issue, not a pure organisational-rights dispute.
Labour law — Organisational rights (ss 12–16) v collective bargaining — Distinction between workplace and bargaining unit — s 64(2) refusal to bargain jurisdictional limits — s 21 procedural requirements for organisational rights enforcement.
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1 August 2019 |
| July 2019 |
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Reported
Labour Court cannot uplift business-rescue moratorium; applicants must seek High Court leave or pursue arbitration.
* Companies Act – business rescue – s133 general moratorium on legal proceedings – scope includes arbitrations and bars proceedings without practitioner’s consent or court leave.
* Labour law – jurisdiction – Labour Court lacks power to uplift s133 moratorium; leave to proceed against a company in business rescue must be sought in the High Court where practitioner does not consent.
* Interaction – Companies Act s133 and s136 vis-à-vis LRA s210 and BCEA: statutory severance pay is payable but forum and timing constrained by business rescue moratorium.
* Urgency – non-payment of remuneration without particularised evidence of exceptional hardship does not establish urgency.
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25 July 2019 |
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Reported
Labour Court set aside the applicant’s suspension as unlawful and an occupational detriment following an inquorate, procedurally defective council decision.
Labour Court jurisdiction to grant urgent interim relief; urgency standards for departing LRA dispute procedures; lawfulness of suspension — quorum, notice and agenda requirements under institutional Charter and statute; protected disclosures (PDA) — disclosure, good faith, and causal nexus to occupational detriment; relief — upliftment of unlawful suspension; costs discretion in employment litigation.
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3 July 2019 |
| June 2019 |
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Reported
An agency shop agreement is invalid unless it expressly replicates the requirements of section 25(3) of the LRA.
Labour law – Agency shop agreements – Formal requirements of s 25(3) LRA – Agreement must expressly provide prescribed matters; substantial or implied compliance insufficient (Greathead v SACCAWU); invalidity renders deductions unlawful – Urgency where deregistration risk may prejudice recovery of deductions.
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24 June 2019 |
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Capping PRMA under a clause granting employer "sole discretion" was lawful and not a substantive unfair labour practice.
* Labour law – Benefits – Post‑retirement medical aid – Interpretation of policy clauses – "subject to" as limitation to substantive entitlements.
* Contract law – Clauses conferring a party with "sole discretion" – scope: whether unfettered or subject to an objective standard (arbitrio bono viri).
* Labour law – Unfair labour practice relating to benefits – exercise of employer discretion scrutinised for arbitrariness and commercial rationality.
* Remedies – LRA compensation as solatium (just and equitable), distinct from actuarial valuation of contractual liability.
* Jurisdiction – s191(6) CCMA referral to Labour Court to adjudicate substantive unfairness.
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20 June 2019 |
| May 2019 |
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Reported
Court varied ambiguous order to clarify only the reporting date, preserving the arbitral reinstatement with retrospective effect.
* Labour law – review of arbitration award – interpretation of court order substituting part of an award; ambiguity in order; Rule 16A(1)(a)(ii).
* Interpretation – judgment and order must be read as a whole; court may clarify an order to give effect to its true intention without altering substance.
* Remedies – distinction between reinstatement (restores status quo ante; retrospective effect) and re-employment (creates new/alternative employment; discretion as to terms and retrospectivity).
* Costs – discretion to make no order where ambiguity and absence of reasons justify neutrality.
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29 May 2019 |
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Despite arguable merit, the review was dismissed due to prolonged, unexplained delays and non‑compliance with the Practice Manual.
Labour law – review of CCMA jurisdictional ruling – condonation and dismissal for lack of diligent prosecution (Rule 11 and Practice Manual non‑compliance) – distinction between interpretation and application of collective agreements – prescription plea – review of jurisdictional ruling based on whether arbitrator was right or wrong.
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24 May 2019 |
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Applicant’s contractual claim for arrear salaries only became due when the Labour Appeal Court revived the reinstatement award.
Labour law / Prescription — fixed-term employment reinstatement award suspended by review and appeal — effect on when contractual debt becomes due; distinction between pre-judgment (judgment debt) and post-judgment (contractual debt) claims; Prescription Act ss 12, 14, 15; Hendor applied.
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2 May 2019 |
| April 2019 |
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Reported
Labour Court can review bargaining-council exemption decisions for reasonableness; failure to give reasons permits set-aside and substitution.
Labour law – Bargaining council exemption and appeal decisions – reviewable under s158(1)(g); standard of review is Sidumo reasonableness; decision-makers must give intelligible, evidence‑based reasons; affordability is a factual enquiry; failure to give reasons/material misdirection may warrant substitution where record is complete and expedition required.
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11 April 2019 |
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An intervenor has no automatic right to join litigation; leave to appeal refusal to intervene was dismissed.
Labour law – intervention and joinder – leave to intervene – discretionary test for intervention under Court rules; section 200(2) LRA does not confer automatic right to intervene; timing of intervention – too late after merits decided; remedy – apply to appeal court for joinder/intervention.
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4 April 2019 |
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Res judicata barred the applicant’s relitigation of an unfair-discrimination claim; discrimination grounds are evidentiary, not separate causes.
Employment Equity Act – jurisdiction of CCMA – res judicata – finality of arbitration awards – listed and unlisted discrimination grounds are facta probantia, not separate causes of action – equal pay/unequal remuneration disputes – scope of a cause of action under s6 and s10 EEA.
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3 April 2019 |
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Industrial council agreements promulgated under the old LRA are not collective agreements under the 1995 LRA and expired after the transitional period.
* Labour law – Transitional arrangements – Industrial council agreements promulgated under old LRA; whether such agreements constitute "collective agreements" under the 1995 LRA and are amenable to bargaining council jurisdiction; effect and limited duration of Schedule 7 transitional provisions; interpretation and effect of Establishment Agreement clause deeming "existing collective agreements" of full force and effect.
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2 April 2019 |
| March 2019 |
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Arbitrator’s finding of fair operational retrenchment and adequate consultation was reasonable; review application dismissed.
* Labour law – operational requirements – retrenchment – bona fide and rational commercial rationale; * Consultation – section 189 LRA – meaningful joint consensus‑seeking process and effect of preliminary managerial views; * Procedural fairness – employee’s refusal to participate based on alleged predetermination; * Judicial review – Sidumo reasonableness test – outcome‑based enquiry; * Review grounds – misconduct, gross irregularity, exceeding powers not established.
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27 March 2019 |
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Reported
Rolling unprotected strike forfeits employees' entire annual project bonus; arbitrator's contrary interpretation reviewed and set aside.
* Labour law – CCMA arbitration – review under s 145 LRA – material error of law in interpretation of collective agreement – reasonableness test applied.
* Collective agreement – Project Labour Agreement clause 13.25 – project bonus accrual and forfeiture – rolling unprotected strike triggers forfeiture of entire annual bonus unless exceptions apply.
* Interpretation – Endumeni principles: text, context, purpose; objective rather than subjective construction.
* Relief – review and substitution of arbitration award where facts undisputed and issue predominately legal.
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22 March 2019 |
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Reported
A majority union may validly extend a collective agreement retrospectively, limiting minority unions’ right to strike for its duration.
Labour law – s 23(1)(d) LRA – extension of collective agreements to non-party employees – separate ex post facto extension valid – retrospective effect permitted – majoritarianism limits right to strike.
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20 March 2019 |
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Dismissal for poor performance upheld; alleged commissioner sleeping and postponement refusal did not vitiate award.
Labour law – dismissal for poor performance; review under s145 LRA; Sidumo reasonableness test; Schedule 8 Item 9 requirements; commissioner misconduct (sleeping) and gross irregularity; refusal of postponement and discretion.
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20 March 2019 |
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Condonation for a 211‑day late referral refused: delay inadequately explained and prospects of success not shown.
Labour law – condonation for late referral – interests of justice test (Grootboom; Melane) – excessive delay (211 days) – inadequate explanation – prospects of success not established – pleadings not incorporated by respondent’s special pleas – importance of speedy resolution of employment disputes.
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8 March 2019 |
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Arbitrator’s award upholding dismissal for applicant’s repeated insubordination was reasonable; review dismissed.
Labour law – review of CCMA arbitration – reasonableness standard under s145 LRA; final written warning is disciplinary action short of dismissal and must be separately challenged as an unfair labour practice; arbitrator may decline to reopen unchallenged warnings in unfair dismissal arbitration; repeated deliberate insubordination can justify dismissal; procedural fairness satisfied.
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5 March 2019 |
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Reported
An unregistered union cannot claim workplace access rights against a premises owner; Labour Court has jurisdiction.
Labour Court jurisdiction under s157(2)(a) LRA; unregistered trade unions not entitled to Chapter III organisational rights; applicants entitled to final interdict preventing unauthorised access and meetings on private premises; subsidiarity of statutory labour mechanisms; costs awarded.
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4 March 2019 |
| February 2019 |
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Reported
Award set aside for misapplying EEA onus, misunderstanding regulations and exceeding remedial powers; matter remitted for rehearing.
* Employment Equity Act – section 11 evidentiary onus – where discrimination on a listed ground is alleged employer must justify differentiation.
* Employment Equity Regulations – Regulation 4 (categories of work of equal value) and Regulation 7 (justifying factors for pay differentiation).
* Review – commissioner’s failure to apply correct legal framework, unreasonable outcome and excess of remedial powers.
* Remedy – award reviewed and set aside; matter remitted for rehearing.
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26 February 2019 |
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Reported
A referral for adjudication under s191(5)(b) must be made within 90 days of the CCMA certificate of outcome.
Labour law – referral for adjudication under s191(5)(b) – s191(11) requires referral within 90 days of CCMA certificate of outcome – distinction between arbitration and adjudication time limits – certificate can trigger 90-day period even if issued after 30-day conciliation period.
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19 February 2019 |
|
Court enforced Labour Appeal Court’s section 197 transfer order pending appeal to protect employees’ livelihoods.
Labour law — Section 197 LRA transfers — enforcement pending appeal under s18 Superior Courts Act — exceptional circumstances and irreparable harm required to displace suspension of execution — authority and locus standi in motion proceedings.
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19 February 2019 |
|
A prior merits dismissal barred re‑litigation of the same labour dispute; applicant’s subsequent urgent application was struck out and costs awarded.
* Labour law – res judicata – when a prior dismissal for failure to prove case on papers constitutes a final judgment on the merits; idem actor, idem reus, eadem causa petendi.
* Procedure – repetition of motion proceedings – limits on re‑litigation and requirement to use avenues left open by prior order (CCMA verification).
* Labour practice – urgent applications and abbreviated timetables – costs discretion, including costs of two counsel.
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8 February 2019 |
| January 2019 |
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Reported
Issuing a subpoena against a party to bypass discovery is an abuse of process; the subpoena was set aside and costs awarded.
* Labour Court procedure — subpoena duces tecum v discovery — Rule 32 for witnesses/non-parties; Rule 6 for discovery from parties.
* Abuse of process — issuing a subpoena to circumvent pre-trial discovery may constitute abuse where discovery safeguards are available.
* Pre-trial procedure — parties must address discovery at pre-trial; interlocutory applications under Rule 6(9)(b) provide judicial oversight.
* Subpoena requirements — Form 3 compliance and proper specification of documents; subpoenas should not be used to coerce parties or uncited juristic persons.
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23 January 2019 |
