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Citation
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Judgment date
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| September 2021 |
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Reported
Strike unprotected where required advisory award under section 64(2) LRA was not issued; court can direct commissioner to comply.
Labour law – Refusal to bargain – Section 64(2) LRA – advisory award required under s135(3)(c) before strike notice in refusal-to-bargain disputes. Administrative law – Jurisdictional ruling – functus officio – commissioner not functus where statutory conciliation/arbitration duties remain unperformed. Powers of the Labour Court – s158(1)(a)(iii) LRA – Court may direct commissioner to perform statutory functions and compel issuance of advisory award. Statutory interpretation – purposive approach to procedural prerequisites for protected strike action.
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8 September 2021 |
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Reported
Contempt not proved where reinstatement orders require timely tender of services and applicants delayed and failed to prove tender.
Labour law – contempt of court – requisites: order; service; non-compliance; wilful and mala fide disobedience – criminal standard of proof (beyond reasonable doubt); Reinstatement orders – employee must tender services within reasonable time – reinstatement does not automatically restore contract; Evidentiary rules – allegations must be in founding affidavit; replying affidavit and hearsay insufficient to discharge onus; Delay – unreasonable delay in enforcing reinstatement undermines contempt claim; Costs – court may award costs against union for meritless, delayed proceedings.
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8 September 2021 |
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Arbitration award set aside for failure to assess and admit material evidence; matter remitted for rehearing; withdrawn affidavit struck out with costs.
Labour law — review of arbitration award — Commissioner’s inadequate reasoning and unwarranted adverse credibility findings — exclusion of relevant evidence (customer stock losses) — reviewable irregularity — award set aside and matter remitted for rehearing; late supplementary affidavit withdrawn and struck out with costs.
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7 September 2021 |
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Reported
Employer’s instruction not to report plus subsequent disciplinary action revived employment, entitling employees to reinstatement backpay.
Labour law – reinstatement orders – requirement to tender services; effect of employer advising employees not to report for duty; employer instituting disciplinary proceedings as evidence of revived employment relationship; enforceability of certified arbitration awards; distinguishing Kubeka v Ni‑Da Transport (LAC).
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2 September 2021 |
| August 2021 |
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Reported
Operationally justified fixed‑term contracts do not create a reasonable expectation of indefinite employment; non‑renewal is not dismissal.
Labour law – Fixed‑term (limited‑duration) contracts – Application and scope of section 198B of the LRA – When fixed‑term contracts are justified for operational reasons (volume increases, seasonal work, temporary replacements). Labour law – Collective agreements – When a collective agreement binds non‑party employees – section 23(1)(d) requirements. Labour law – Unfair dismissal – Reasonable expectation of renewal and section 186(1)(b)(ii) – Successive renewals and when employment is deemed indefinite. Procedural – CCMA jurisdiction – Determination depends on whether dismissal established.
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31 August 2021 |
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An inordinate unexplained delay in filing the record justified dismissal of the applicant's revival and condonation application and an award of costs.
Labour law — review procedure — revival of review application and condonation for late filing of the record — Practice Manual para 11.2.3 — inordinate delay and inadequate explanation — prospects of success — costs awarded for deliberate disregard.
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30 August 2021 |
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Inordinate unexplained delays in filing a review and record justified refusal of condonation and striking the review from the roll.
Civil procedure — Labour review — Condonation for late filing — Applicant must give a reasonable, detailed explanation for delay. Labour law — Review applications — More stringent condonation requirements: compelling explanation and substantiated prospects of success required. Practice Manual — Late filing of transcribed record may render review deemed withdrawn; reinstatement requires justification. Court jurisdiction — Where review deemed withdrawn and reinstatement refused, matter is struck from the roll.
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30 August 2021 |
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Rescission of default CCMA award granted where incorrect email notification deprived applicant of notice; costs awarded against union.
Labour law – Review – Rescission of default CCMA arbitration award – Notification by email – Incorrect email addresses – Failure to notify as error permitting rescission without showing good cause – Costs ordered against union.
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30 August 2021 |
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Matter removed for procedural deficiencies pending rectification of the court file and resolution of timing/prescription issues.
Labour law – Review under section 158(1)(c) – review of arbitration award – timing and prescription; Civil procedure – adequacy of court file – proper pagination, indexing and record; Procedural requirements – service of record/transcript timing and applicability of Practice Manual 2013; Relief sought – making arbitration award order of court; dismissal/deemed withdrawal for late launch.
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25 August 2021 |
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Review struck from the roll as deemed withdrawn for failure to comply with Practice Manual time limits (60‑day rule).
Practice Manual – Archiving files and time limits – Clause 11.2.2 (60‑day delivery of record) and clauses 16.1/16.3 – non‑compliance deemed withdrawal/lapse of review – Registrar’s duty to archive – effect on Court’s jurisdiction.
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25 August 2021 |
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Reported
Where parties agree severance above the BCEA minimum, section 41 does not require inclusion of an acting allowance.
Labour law – BCEA s41 – severance pay calculation applies only to statutory minimum; agreed severance packages above minimum governed by agreement; acting allowance not included absent agreement; CCMA arbitration review for misconceived enquiry.
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23 August 2021 |
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Court upheld commissioner: refusal to comply with an unreasonable job‑change instruction rendered dismissal substantively unfair; BCEA award competent.
Labour law – unfair dismissal – reasonableness of employer’s instruction to change duties – refusal to comply – substantive fairness; Review – section 145(2) LRA – gross irregularity/unreasonable result; BCEA s 74(2) – arbitrator’s jurisdiction to award amounts owing (salary and leave); Costs in review proceedings.
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16 August 2021 |
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An arbitrator’s reinstatement was reasonable where dismissal for alleged gross negligence lacked evidential support.
Labour law – review of CCMA arbitration award – reasonableness standard of review; gross negligence/dereliction of duty versus ordinary negligence; appropriateness of sanction (dismissal v written warning); backpay claim not properly before court.
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16 August 2021 |
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Review upheld: arbitrator’s finding unreasonable; evidence (breathalyser, smell, admissions) established dismissal for intoxication was fair.
Labour law — Review of arbitration award — Reasonableness standard — Evidence of intoxication at workplace (smell, breathalyser, admissions, guilty plea) — Unreasonable factual finding — Substitution of award declaring dismissal fair.
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16 August 2021 |
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Labour Court lacks jurisdiction to dismiss a review deemed withdrawn; declarator unnecessary; s158(1)(c) relief refused.
Labour Court procedure – Practice Manual clause 11.2.3 – failure to file record within 60 days – review deemed withdrawn – effect on jurisdiction; Civil procedure – Rule 11 applications – Court lacks jurisdiction to dismiss a review that is deemed withdrawn absent reinstatement; Declaratory relief – discretionary – not appropriate to restate clear procedural rule; Labour Relations Act s158(1)(c) – discretionary relief to make arbitration award an order – interests of justice, right to be heard and prospects of success on review are decisive.
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11 August 2021 |
| July 2021 |
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Reported
Whether the applicant’s tailings deposition and hydro-mining are work of a civil engineering character within the bargaining council’s scope.
Labour law – Demarcation – s 62 LRA arbitration – whether tailings deposition and hydro-mining are within civil engineering bargaining council scope; distinction between civil engineering design/construction/geotechnical oversight and specialised tailings operation/hydro-mining; review for failure to engage evidence and give reasons.
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7 July 2021 |
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Reported
Regulator correctly refused blasting approval because post‑blast collapse risk remained significant despite mitigation measures.
Mine health and safety – Regulation 4.16(2) – Blasting within 500m of dwellings – Assessment of ‘significant risk’ requires consideration of both likelihood and consequence; blast mitigation (reduced charge mass, evacuation) can address immediate risks but inadequate post‑blast expert inspection and response may leave significant residual risk justifying regulator refusal.
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5 July 2021 |
| June 2021 |
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Reported
Ostensible authority made the political organisation liable for unlawful workplace protest actions by its branch representatives.
Labour law – ostensible/apparent authority; political party liability for members' unlawful workplace protests; final interdict requirements (clear right, injury, no alternative remedy); non-joinder and internal constitutional accountability; costs under s162 LRA.
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18 June 2021 |
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Reported
Review application dismissed for flagrant non‑compliance with Labour Court Rules; attorneys ordered to pay costs de bonis propriis.
Labour procedure – review of CCMA jurisdictional ruling – strict compliance with Rule 7A and Practice Manual – service and timeliness – filing of record and Rule 7A(8) notice – condonation requirements – costs de bonis propriis against legal representatives for gross procedural negligence.
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9 June 2021 |
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Reported
s189A(13) relief available during consultation window; no substantial procedural unfairness proved, application dismissed with costs.
Labour law – s189A(13) remedies and timing; prematurity and urgency under s189A(17); facilitator powers and information disclosure (Regulation 5 and s16); threshold for court intervention—substantial procedural failure required; costs for misguided procedural challenges.
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4 June 2021 |
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Reported
Court dismissed interlocutory remittal application: remittal requires prior review and setting aside, consent insufficient.
Labour law — limping record — Practice Manual clause 11.2.4 — Rule 11(3) inappropriate where Practice Manual prescribes procedure — remittal only after review and setting aside — functus officio and Oudekraal principle — Sidumo reasonableness test applies — consent/Rule 17 insufficient to bypass review.
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2 June 2021 |
| May 2021 |
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Reported
Whether CCMA could adjudicate a discretionary performance‑bonus claim under s74(2) BCEA and whether the applicant was constructively dismissed.
Labour law – jurisdiction – CCMA powers under section 74(2) BCEA – whether discretionary contractual performance bonuses constitute 'amounts owing in terms of this Act'. Labour law – statutory interpretation – distinction between 'remuneration' and contractual 'benefit' for BCEA purposes; operation of section 4(c) exclusion. Labour law – review – Labour Court entitled to determine jurisdiction de novo where arbitrator misconceived competence. Constructive dismissal – objective intolerability test; senior employees expected to tolerate pressures commensurate with senior packages; failure to use grievance procedures relevant.
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31 May 2021 |
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Review dismissed for want of jurisdiction due to late filing, failure to seek condonation and Practice Manual non‑compliance.
Labour law — review under s145 LRA — time limits and condonation — Melane principles; Practice Manual compliance — upliftment (clause 11.2.1), filing within 60 days (clause 11.2.2), deemed withdrawal and extension procedure (clause 11.2.3), archiving/lapse (clause 11.2.7); Rule 7A — complete record requirement; reinstatement applications and competence; Rule 11 interlocutory dismissal for procedural non‑compliance.
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31 May 2021 |
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Whether an employer’s unauthorised substitution of an internal sanction renders the dismissal ultra vires and substantively unfair.
Labour law – employer substitution of internal chairperson’s sanction; ultra vires substitution; substantive unfairness of dismissal; Van Der Walt and Brandford considered; binding authority of SARS v CCMA–Kruger; remedy — reinstatement excluded under s193(2)(b) and compensation awarded.
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31 May 2021 |
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Reported
Stay under s145(3) is discretionary and may be granted without security; applicant exempted from furnishing security.
Labour law – Arbitration awards – s145(3) LRA discretionary power to stay enforcement – distinct from s145(7) automatic suspension by furnishing security; requirements for stay analogous to interim-interdict (urgency, irreparable harm, underlying dispute); Labour Appeal Court default on security but court may absolve applicant where good cause shown.
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5 May 2021 |
| April 2021 |
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Arbitrator failed to weigh mitigating factors; dismissal found substantively unfair and applicant reinstated.
Labour law — review of arbitration award — standard of review — arbitrator must consider all aggravating and mitigating factors when assessing sanction; failure to weigh mitigation may render sanction unreasonable. Mischaracterisation of conduct — inappropriate workplace behaviour vs sexual harassment. Reinstatement as remedy where dismissal substantively unfair.
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29 April 2021 |
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Reported
A conditional, unconsented transfer did not create a contract of employment; Labour Court lacked jurisdiction and claim was dismissed.
Jurisdiction – section 77(3) BCEA – matter must concern a contract of employment to vest Labour Court jurisdiction. Public Service Act – transfer of head of provincial department to national department requires Presidential involvement under section 12; section 14 does not apply to heads. Pleadings – jurisdiction determined with reference to pleadings and claim must plead and annex contract terms where relied upon. Choice of process – referral (action) ordinarily requires viva voce evidence; parties may agree to admit affidavits without cross-examination. Evidence – hearsay affidavits admissible by agreement; failure to separate issues and to lead quantification evidence absolves respondent on quantum.
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23 April 2021 |
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Court cannot dismiss matters subject to Registrar archiving; deemed-withdrawn reviews leave the Court without jurisdiction.
Labour Court procedure – Rule 11 – Appropriate remedy for failure to prosecute – Practice Manual archiving powers of Registrar – Deemed-withdrawn/archived review – Jurisdiction to entertain/dismiss withdrawn reviews.
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13 April 2021 |
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A reinstatement of examiners shown to have dishonestly assisted candidates was irrational; dismissal was appropriate.
Labour law – review under s158(1)(h) of the LRA; principle of legality and rationality; reasonableness standard for review; dishonesty by public-sector examiners; dismissal as appropriate sanction for gross misconduct.
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8 April 2021 |
| January 2021 |
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Reported
Applicant’s review dismissed for lack of jurisdiction where liquidation notice to liquidator under Companies Act was not given.
Companies Act s359 (winding-up) – suspension of civil proceedings – statutory notice to liquidator required before continuing proceedings – failure to give notice renders proceedings abandoned – Labour Court lacks jurisdiction to continue or grant condonation under LRA; effect of deregistration on corporate personality and pending claims.
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22 January 2021 |
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Labour Court lacks general PAJA jurisdiction; MHSA appeals under s58 are the proper remedy, and the blasting permission was lawfully granted.
Administrative law – jurisdiction – PAJA review proceedings must be instituted in High Court unless jurisdiction conferred otherwise – Labour Court lacks general PAJA jurisdiction. Mine Health and Safety Act – s58 appeal is exclusive remedy against decisions under s57(3) or exercise of MHSA powers; s82 limited to disputes about interpretation/application of Act. Administrative law – exercise of statutory power – approval of risk assessment, imposition of conditions and written permission to blast under reg 4.16(2) lawful, rational and within statutory limits. Procedural – Chief Inspector had no power to condone late internal appeal; refusal to condone appeal is appealable under MHSA.
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13 January 2021 |
