Dimo Labour Law Specialists - Pty Ltd

Dimo Labour Law Specialists - Pty Ltd We are a consulting firm situated in Johannesburg. We provide services in HR, IR and Legal (Labour Law)

07/01/2025

Industrial Law Journal Preview January 2025

Bargaining Council — Constitution — Membership of Party

The Motor Industry Bargaining Council constitution provided that the threshold for admission to membership of the council was 5%.

The Labour Appeal Court was approached to consider whether the membership of a party automatically terminated on failure to maintain 5% representativity in the absence of an express clause in the MIBCO constitution.

An arbitrator had found that a tacit term in the constitution resulted in cessation of membership.

The Labour Appeal Court, having commented on the differences in the contexts in which collective agreements and commercial contracts operated, found that merely because the parties agreed to 5% representativity as a minimum to participate in the work of the council, it did not follow that, if a party failed to maintain that level, it automatically lost membership.

The parties to the council were registered unions and employer organisations and it was up to them to determine how to deal with a party which no longer enjoyed the required minimum membership (National Union of Metalworkers of SA v Motor Industry Staff Association & others at 109).

Labour Court — Extra-territorial Jurisdiction

In Sorrell v Petroplan Sub-Saharan Africa (Pty) Ltd (at 128), the Labour Appeal Court confirmed that the location of employment was not where the employer conducted its business but where the services were to be performed by the employee.

In this matter it upheld the Labour Court finding that the location of employment of the appellant employed by a South African temporary employment service to perform services for clients in Mozambique was Mozambique and not South Africa.

Collective Agreement — Section 24 Dispute — Jurisdiction and Legal Standing

In Skulpad & another v Department of Health, Eastern Cape & others (at 193) the Labour Court rejected the decisions in Arends & others v SA Local Government Bargaining Council & others (2013) 34 ILJ 2560 (LC) and SA Police Service v Du Preez & others: In re Du Preez v SA Police Service (PR157/17 and P226/17) [2019] ZALCPE 3 (8 March 2019) which were to the effect that employees had no locus standi to refer s 24 disputes and that it was only unions that could do so.

It found that individual employees with a direct and substantial interest in a dispute relating to the interpretation and application of a collective agreement had locus standi to refer a dispute in terms of s 24 and that the bargaining council had jurisdiction where the applicants were individual employees.

Disciplinary Penalty — Breakdown of Employment Relationship

In Algoa Bus Co (Pty) Ltd v Tirisano Transport & Services Workers Union on behalf of Mzawi & others (at 89) the Labour Appeal Court reiterated that, when the breakdown of the employment relationship is apparent from the nature of the offence, there is no obligation on the employer to lead evidence on the appropriateness of dismissal as a sanction.

Dismissal — Deemed Dismissal of Educator

The Labour Appeal Court has found that s 14 of the Employment of Educators Act 76 of 1998, which provides that where an educator is absent from work without permission for a period exceeding 14 days he is deemed to be discharged, is not triggered if the educator is absent for less than 14 days on which he is expected to be on duty.

The court noted that the section should be used sparingly, and where the employer is unaware of the whereabouts of the educator or where the educator evinces a clear intention not to return to work (Member of the Executive Council, Department of Education, KwaZulu-Natal & another v Cumaio; Cumaio v Member of the Executive Council, Department of Education, KwaZulu-Natal & another at 99).

Dismissal — Deemed Dismissal of Public Service Employee

The public service employee’s employment had been terminated in terms of s 17 of the Public Service Act (Proc 103 of 1994), which provided that an employee who absented himself without permission for a period exceeding one calendar month was deemed to have been dismissed on account of misconduct. In proceedings before the PHSDSBC the arbitrator upheld the department’s submission that termination of employment in terms of s 17 constituted a dismissal by operation of law and not a dismissal under the LRA 1995 and ruled that the council lacked jurisdiction over the dispute.

On review, the Labour Court found that the arbitrator had failed to conduct an enquiry into whether the requirements of s 17(3)(a)(i) had been met before ruling on jurisdiction.

The arbitrator’s misconception of the nature of the enquiry to be conducted constituted a gross irregularity in the proceedings, and his ruling on jurisdiction had to be reviewed and set aside.

The court found further that, where the requirements of s 17(3)(a)(i) were not met and the employer erroneously applied the section, the refusal to pay the employee constituted a dismissal in terms of the LRA (Nkabinde v Public Health & Social Development Sectoral Bargaining Council & others at 173).

Dismissal — Social Media — WhatsApp with Sexual Undertones

The employee senior administration clerk at a Western Cape college of nursing was dismissed for bringing the name of the department into disrepute by sending inappropriate WhatsApp messages with s*xual undertones to three female students.

A bargaining council arbitrator found that the department had no rule prohibiting the sending of such messages between staff and students and consequently found that the employee’s dismissal was unfair and ordered his reinstatement.

On review, the Labour Court found that the messages sent by the employee did not have s*xual undertones but blatantly expressed his desire to have s*x with the students — such messages amounted to turpitude, and were completely reprehensible coming from a senior member of staff.

The court found further that the sending of messages with s*xual undertones or with the clear intention to have s*x by a senior staff member to students did not have to be stated in the department’s code to be an offence.

The dismissal of the employee was clearly justified, and the court reviewed and set aside the arbitrator’s award (Department of Health, Western Cape v Public Health & Social Development Sectoral Bargaining Council & others at 137).

Dismissal — Illegal Money-lending

The employee was involved in a stokvel which changed to a scheme that lent money to other employees at exorbitant rates.

Although the employee wished to withdraw from the stokvel when he learnt that it was an unlawful money-lending scheme, he remained a member until the end of the year at the insistence of fellow members of the stokvel. He was later dismissed for his participation in the scheme.

A CCMA commissioner found that on his own evidence he admitted that he had been a member of an illegal money-lending scheme, and that his dismissal was therefore substantively fair.

On review, the Labour Court upheld the decision of the commissioner (Kaweng v SA National Biodiversity Institute & others at 156).

Dismissal — Operational Requirements

On its establishment, the Durban University of Technology determined that, in order to enhance its stature in both the national and international spheres and to attract better staff and students, it had to upgrade the qualifications of its academic staff.

In the early 2000s it thus introduced a strategic policy to require that all teaching staff had to have a master’s degree as a minimum qualification.

It notified all staff, and provided them with incentives and financial assistance to achieve their master’s qualifications.

Some 20 years later the university set a mandatory deadline of 31 December 2021 for all teaching staff to meet this requirement.

Those who failed to do so were represented by their unions in retrenchment consultations facilitated by the CCMA.

Thirty-one lecturers, including the employee, who had not obtained their master’s degrees were eventually notified of their dismissal for operations requirements.

The employee referred an unfair dismissal dispute to the Labour Court.

It found that the university, subject to acting fairly, had the right to decide how it wanted to run its business and to position it so as to optimise its effectiveness, competitiveness and market appeal.

The function of the court was not to second guess the commercial or business efficacy of the university’s decision, but to determine whether a proper consultation process had been followed and, if so, whether the ultimate decision arrived at was operationally and commercially justifiable on rational grounds.

In this matter the university had made out a case for retrenchment and all the trade unions had accepted the reason as legitimate and valid during the facilitated consultation process.

The court was accordingly satisfied that the university had discharged the onus of satisfying it that the employee was retrenched for substantively fair reasons (Khan v Durban University of Technology at 161).

Dismissal — Driving Under Influence of Alcohol

The employee was involved in a collision in a company vehicle.

He claimed that he was not under the influence of alcohol, and the employer, SAB, accepted his statement on his blood alcohol level.

Some 22 months later the SA Police Service report on the collision revealed that the employee’s blood alcohol content was four times the legal limit on the night of the collision. SAB held a disciplinary hearing, and dismissed the employee.

In unfair dismissal proceedings before the CCMA, the commissioner found that SAB had always been aware that the employee had consumed alcohol, it just did not know the level of his intoxication, and it had nonetheless continued to employ him for almost two years.

He found the dismissal to be unfair and ordered SAB to reinstate the employee.

On review, the Labour Court found that SAB had initially relied on the bona fides of the employee’s explanation, and he had misled it by creating the impression that his alcohol consumption had been inconsequential.

Had SAB known the true facts, it would have pursued disciplinary proceedings immediately.

The employee’s dishonesty had therefore been rewarded with 22 months’ employment. Moreover, driving under the influence was a serious offence, and the employee’s dismissal was justified (SA Breweries (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others at 184).

Dismissal — Workplace Bullying

The human resources business partner was found to display inappropriate behaviour by harassing and bullying the human resources manager, and she was dismissed.

In unfair dismissal proceedings before the CCMA, the commissioner noted the distinction between the exercise of managerial power and harassment, and was satisfied that the employee had displayed a consistent pattern of inappropriate conduct that adversely affected the workplace environment, disrupted team dynamics and eroded organisational culture.

He further considered what constituted workplace bullying and gaslighting, and found that the employee’s behaviour reflected such conduct.

He found that the employee’s dismissal had been operationally justified, proportionate to the harm done and undoubtedly fair (Bechan and Ince (Pty) Ltd at 224).

Dismissal — Unlawful Demonstration

The employees were granted leave to attend a CCMA arbitration relating to a dispute under s 73A of the Basic Conditions of Employment Act 75 of 1997.

There were 70 employees, but there was room for only six in the CCMA hearing room in Tzaneen.

The rest waited outside, and while there they engaged in unlawful protest action and demonstrations which had been arranged by the EFF.

Their conduct was threatening, and the police were called to the scene. The CCMA hearing was postponed and had to be moved to another venue with better security.

The employees who were identified by video and photographic evidence were later disciplined and dismissed.

In unfair dismissal proceedings before the CCMA, the commissioner found that the employees had participated in an unlawful demonstration which had disrupted the CCMA proceedings, had exhibited threating and/or intimidating behavour, and had brought the name of the employer into disrepute.

Their dismissals had therefore been substantively fair (Malatji & others and Bertie van Zyl (Pty) Ltd at 236).

Quote of the Month:

Kroon AJ in Skulpad & another v Department of Health, Eastern Cape & others
(2025) 46 ILJ 193 (LC):

‘Jurisdiction and locus standi are discrete concepts. While both are access mechanisms over which a court has authority, they should not be conflated.

To say that because a claimant does not have locus standi, the claim falls to be dismissed for want of jurisdiction is a non sequitur. At the risk of stating the obvious, the claim, in those circumstances, falls to be dismissed for want of locus standi, not jurisdiction.

Locus standi is concerned with whether a legal person has the standing to bring a claim, not whether the forum in question has jurisdiction over the claim.

In answering the question of whether locus standi has been demonstrated, there must be an enquiry into whether the party seeking to enforce the legal right has sufficient interest in the relief claimed.

Jurisdiction, on the other hand, is concerned with whether the forum has the power in law to adjudicate on the cause of action embraced by the claim and thus to dispose of it.

To illustrate, there may be proceedings over which a forum has jurisdiction instituted by two applicants, one who possesses locus standi and one who does not.’



Dimo Labour Law Specialists - Pty Ltd

29/11/2024

Industrial Law Journal Preview December 2024

Automatically Unfair Dismissal — Religious Belief

The employee, a Seventh Day Adventist, who was employed as a marketing manager, was dismissed for refusing to work on the sabbath, Saturday.

The Labour Court found that the employee had been discriminated against on the basis of his religion and belief and that his dismissal was automatically unfair in terms of s 187(1)(f) of the LRA 1995.

On appeal, the majority decision of the Labour Appeal Court found that the employer had demonstrated that weekend work was rationally connected to the performance of the job of marketing manager, that it was necessary for the fulfilment of a legitimate work-related purpose, and that it was not possible to accommodate the employee without imposing undue hardship on the employer.

It found accordingly that weekend work was an inherent requirement of the job, and upheld the employer’s s 187(2)(a) defence (Sun International Management Ltd v Sayiti at 2702).

Automatically Unfair Dismissal — Union Activities

The employees were dismissed for misconduct, but it appeared in proceedings before the Labour Court that they had in fact been dismissed for joining a trade union and actively recruiting members for the union.

This rendered their dismissals automatically unfair and constituted victimisation in terms of s 187(1)(d) read with s 5 of the LRA 1995 (Association of Mineworkers & Construction Union on behalf of Maluleka & others v Gold Plat Recovery (Pty) Ltd at 2734).

Automatically Unfair Dismissal — Race

The employee, a black female payroll administrator, was dismissed for misconduct.

In proceedings before the Labour Court, she contended that she had been dismissed because of her race and that her dismissal was automatically unfair in terms of s 187(1)( f) of the LRA 1995.

The evidence showed that the employer’s senior human resources manager had suggested in emails that the employee was unreliable and untrainable because of her race, and he had also used a racial epithet towards the employee and suggested that black people were criminals.

The court found that race was clearly the proximate cause of her dismissal, and that the dismissal was automatically unfair (Mavundla v Frame Leisure Trading (Pty) Ltd at 2756).

Automatically Unfair Dismissal — Age

The employer motor dealership had dismissed the employee, a sales manager, aged 72, contending that he had already reached the normal retirement age in the motor industry of 65 years.

In proceedings before the Labour Court the employee claimed that he had been unfairly discriminated against on the grounds of his age.

The employer relied on s 187(2)(b) of the LRA 1995 to claim that the normal retirement age in the motor industry was 65.

The court rejected this argument, finding that the retirement age of 65 was only applicable to the category of employees falling within the registered scope of MIBCO.

There was no norm or practice that employees in the motor industry in the capacity of the employee had to retire at 65 years or any other age.

The court accordingly found that the employee had been dismissed because of his age and that this constituted an automatically unfair dismissal (Slabbert v Muji Motor Group (Pty) Ltd at 2817).

Resignation — Withdrawal

The Labour Appeal Court found that the person purporting to refuse to accept the employee’s withdrawal of his resignation after it had been accepted by the employer municipality did not have authority to act on behalf of the municipality, and that his decision was therefore ultra vires and lacked legal force (Monareng v Dr J S Moroka Local Municipality at 2689).

Settlement Agreement — Order of Court

The employee’s employment was terminated by a voluntary separation agreement. When the employee applied to have the settlement agreement made an order of court in terms of s 158(1)(c) of the LRA 1995, the Labour Court confirmed that only settlement agreements that complied with the criteria stated in s 158(1A) could be made orders of court.

The agreement in this matter did not meet the criteria — it was not an agreement in settlement of a dispute as there existed no dispute prior to conclusion of the agreement (Mabaso v Discovery Life at 2751).

Residual Unfair Labour Practice — Benefits

The employer, SARS, withdrew a travel allowance policy. The CCMA found that SARS had not committed an unfair labour practice relating to benefits.

On review, the Labour Court found that SARS had bona fide operational reasons for withdrawing the travel allowance policy and that it had agreed to follow a phased withdrawal after consulting with the unions.

The court was accordingly satisfied that SARS had a bona fide and fair reason to withdraw the allowance and that it had followed a fair procedure.

It agreed with the CCMA commissioner that no unfair labour practice had been proved (Public Servants Association of SA & others v Commission for Conciliation, Mediation & Arbitration & others at 2795).

Local Authority/Local Government — Manager — Special Leave

The Labour Court confirmed, in Sibanyoni v Speaker, City of Mbombela & others (at 2808), that special leave, which is governed by regulation 32 of the Appointment and Conditions of Employment of Senior Managers Regulations, can only be at the instance or with the consent of the manager employed in terms of s 57 of the Local Government: Municipal Systems Act 32 of 2000.

Special leave imposed on a manager without his or her consent is merely another name for a precautionary suspension.

The court found that the city council’s resolution to put the manager on special leave did not comply with regulation 6 of the Local Government: Disciplinary Regulations for Senior Managers and was therefore unlawful.

Public Service — Employees — Appointment

A cooperation agreement between the governments of Cuba and South Africa provided for the secondment of Cuban engineers to South Africa.

The Minister of Human Settlements, Water & Sanitation procured 25 Cuban scientists, engineers and engineering assistants for her department.

The union approached the High Court for an order reviewing and setting aside the minister’s decision on the grounds that it was unlawful and constitutionally invalid.

The court found that the minister had failed to comply with s 217 of the Constitution 1996, the Preferential Procurement Policy Framework Act 5 of 2000 and the Preferential Procurement Regulations 2017, or the Public Service Act (Proc 103 of 1994) and the Public Service Regulations 2016 when she appointed the Cuban engineers, and that her decisions was therefore unlawful and constitutionally invalid (Solidarity v Minister of Human Settlements, Water & Sanitation at 2828).

Dismissal — Cultural Context

The employee, a trainee sangoma, assaulted a fellow employee with a knife and was dismissed.

In unfair dismissal proceedings before the CCMA, it appeared that the employee had been provoked by the fellow employee touching her head despite her objection; her ‘spirit’ had reacted and guided the employee to grab a knife, which was in her handbag, and attack the co-worker.

The commissioner found that, despite the provocation, the conduct of the employee was inexcusable, and dismissal was justified (Kwinana and Discovery Ltd at 2846).

Dismissal — Contract of Employment — Change to Terms and Conditions

The employee refused to accept the employer’s unilateral change to the terms and conditions contained in his contract of employment.

In unfair dismissal proceedings before the bargaining council, the employer claimed that the change was necessary for operational requirements.

The arbitrator found, however, that the dismissal was not for operational requirements, but was effected to compel the employee to accept the employer’s demand to change from night shift to day shift.

The dismissal was therefore substantively unfair (Kheithulie and Tradezone Courier at 2857).

Disciplinary Code and Procedure — Charges

The employee was charged with removal of company property but, when he failed to appear for his disciplinary hearing, he was dismissed for absenteeism. In unfair dismissal proceedings before the CCMA, the commissioner found that the employee was dismissed for misconduct that differed from that for which he had been charged.

His dismissal was therefore substantively unfair (Food & Allied Workers Union on behalf of Apleni and Freshmark at 2837).

Practice and Procedure

The Labour Appeal Court has held that, where parties limit the issues in dispute in a pre-arbitration minute, the arbitrator is required to determine the narrowly defined issues only.

It found further that the appellate court would interfere with the widened scope of issues pleaded in the court below only when that had been sanctioned by the parties (Mbeje & others v Department of Health, KwaZulu-Natal & others at 2681).

The Labour Court, in Africabin Building Systems (Pty) Ltd v Mogaladi & others (at 2727), once again commented on the worrying behaviour of some employer who deliberately chose to disregard the provisions of s 145(7) and (8) of the LRA 1995 relating to the provision of security when seeking to review arbitration awards.

On the return day of a rule nisi calling on the department and the head of department to show cause why they were not in contempt of an arbitration award, the Labour Court found that certification of the award in terms of s 143 of the LRA 1995 was a necessary prerequisite for a finding of contempt.

It also found that contempt was only possible once the certified award had been brought to the attention of the respondent.

The court considered the test for establishing contempt, the citation of the correct respondents and the distinction between criminal and civil contempt (Nxumalo & others v Gauteng Department of Sports, Arts, Culture & Recreation & another at 2778).

Quote of the Month:

Not awarded.


07/11/2024

Industrial Law Journal Preview November 2024

Defence Act 42 of 2002 — Section 59(3) — Absence for Period Exceeding 30 Days

Section 59(3) of the Defence Act 42 of 2002 provides that a member of the Regular Force who absents himself or herself from official duty for a period exceeding 30 days without the permission of his or her commanding officer is to be regarded as having been dismissed or discharged, as the case may be, on account of misconduct.

The Constitutional Court has determined that the period of 30 days excludes weekends, public holidays and other days on which a member is not required to be on duty (Mamasedi v Chief of the SA National Defence Force & others at 2475).

Prescription Act 68 of 1969 — Section 13 — Creditor Mentally Incapacitated

The Constitutional Court, in interpreting s 13(1)(a) and (i) of the Prescription Act 68 of 1969, has found that the appointment of a curator ad litem does not interrupt the running of prescription in respect of a mentally incapacitated creditor while the impediment exists. Thus, where a creditor is suffering from permanent mental incapacity, the prescription period is never completed (Shoprite Checkers (Pty) Ltd v Mafate NO at 2491).

Bargaining Council — Jurisdiction

The Labour Appeal Court found, in Education Labour Relations Council v Department of Education, Gauteng & others (at 2511), that a bargaining council derives its jurisdiction to resolve and/or determine disputes from its constitution. Thus, as the Education Labour Relations Council constitution provided for the resolution of disputes regarding promotion between educators and the state as employer, the ELRC had jurisdiction to arbitrate promotion disputes.

Demarcation — Demarcation Award

A CCMA commissioner found that all of the logistics service provider’s operations at the employer fell within the registered scope of the National Bargaining Council for the Road Freight & Logistics Industry.

The applicant union applied to the Labour Court for an order reviewing and setting aside the award.

The court considered the demarcation award in the light of the established approach to be adopted when considering whether an enterprise falls within the particular industry definition.

It also considered the correct approach to reviewing demarcation awards, noting that there is often no one absolutely correct judgment.

It found that the commissioner had conducted the correct enquiry and had done so correctly, and that his decision was reasonable (National Union of Metalworkers of SA v Commission for Conciliation, Mediation & Arbitration & others at 2608).

Retrenchment — Mass Retrenchment — Facilitation and Conciliation Proceedings

The Labour Court, in National Union of Metalworkers of SA on behalf of Members v SAA Technical (Pty) Ltd (2023) 44 ILJ 2000 (LC), had considered the conflicting judgments on the question whether a union was required, under s 189A(7) read with s 191(11) and s 191(5)(b)(ii) of the LRA 1995, to seek conciliation where a facilitation process had preceded a large-scale retrenchment.

It followed the judgments that required the union to seek conciliation of the dispute prior to filing its statement of claim.

On appeal, the Labour Appeal Court, having discussed s 191(1), s 191(5)(b), s 191(11), s 189A and s 189A(7)(b)(ii) and the amendments to the LRA in 1998, 2002 and 2014, examined the interpretation by the court a quo and the contrary interpretations, and was satisfi d that the policy choice of the legislature was that, notwithstanding the facilitation process, referral of a large-scale retrenchment dispute to conciliation was mandatory (National Union of Metalworkers of SA on behalf of Members v SAA Technical (Pty) Ltd at 2524).

An employee retrenched by SAA Technical during the above large-scale retrenchment, disagreed with the approach adopted by the union, and referred an individual automatically unfair dismissal dispute, alternatively a substantively unfair dismissal dispute to the CCMA.

Conciliation failed, and she referred the dispute to the Labour Court, where the employer raised two points in limine, namely lis alibi pendens and lack of locus standi.

The court found that the defence of lis pendens clearly did not apply to the automatically unfair dismissal dispute, as the union had not relied on such a cause of action.

Regarding the substantively unfair dismissal dispute the court noted that the employee had correctly referred her dispute for conciliation, while the union had not; that her CCMA referral was filed before the union’s referral to court; and that she had unequivocally distanced herself from the union’s litigation.

The court found that, in the circumstances, upholding the lis alibi pendens defence would result in injustice to the employee (Mugavazi v SAA Technical SOC Ltd at 2597).

Retrenchment — Mass Retrenchment — Application in terms of Section 189A(13)

In an application in terms of s 189A(13) of the LRA 1995, the Labour Court had found that the retrenchment of the employees had been procedurally fair.

In later proceedings to determine the substantive fairness of the retrenchment, the employees relied on the same facts as those before the court in the s 189A(13) application.

The Labour Court found that the matter was res judicata, as it had already been dealt with.

On appeal, the Labour Appeal Court found that the s 189A(13) application related to procedural fairness and the later referral concerned substantive fairness — they were different causes of action even if some of the same facts were placed before both courts.

The doctrine of res judicata did not apply (SA Commercial Catering & Allied Workers Union on behalf of Thage & others v Connect Financial Services (Pty) Ltd at 2536).

Retrenchment — Selection Criteria

The employer had relied on criteria laid down in a behavioural assessment to select laboratory workers for retrenchment.

The Labour Court found that the employer had deviated from agreed criteria which were fair and objective and had unilaterally introduced the behavioural assessment, which rendered the dismissals unfair.

On appeal, the Labour Appeal Court confirmed that, although the subjectivity was restricted to a quarter of the assessment, this was not insignificant and could not be ignored.

It found that the inclusion of other fair and objective criteria could not on their own cure the subjective component of the assessment, and, having considered the evidence, concluded that the behavioural assessment was overwhelmingly subjective in nature and that the employer had failed to prove that the selection of employees was based on fair and objective criteria (Umicore Catalyst SA (Pty) Ltd v National Union of Metalworkers of SA on behalf of Members at 2545).

In Ntsokolo v Eskom SOC Ltd (at 2616) the Labour Court found that, as it was accepted that a competitive recruitment and placement process in the context of s 189 of the LRA 1995 was not a selection criterion as envisaged in s 189(7), the failure to appoint a displaced employee did not automatically result in a dismissal.

The employer had to ensure that any resultant retrenchment met the requirements of substantive fairness.

In this matter, the employer had without justification terminated the consultation process after the employee had not been appointed to one of the vacant positions.

It had failed to meaningfully consult with a view to reaching consensus on selection criteria, severance pay and the timing of the retrenchment, thus rendering the employee’s dismissal unfair.

Retrenchment — Reason for Retrenchment

In unfair dismissal proceedings before the Labour Court the employee claimed that the true reason for her retrenchment was the personal animosity of the managing director to her.

The court noted that, as the employer had demonstrated that the employee had been retrenched for a fair reason in accordance with a fair procedure, she had to show that personal animosity was the main, dominant or most proximate cause of her dismissal.

The court found that she had provided no evidence to support her claim, and her retrenchment was thus fair (Van Haght v JBS Building Co (Pty) Ltd at 2629).

Basic Conditions of Employment Act 75 of 1997 — Leave Pay

On resignation, the employee claimed that he was entitled to 73 days’ leave pay.

The Labour Court found that the employee had failed to show that he was entitled to more than 15 days’ leave per annum and had also failed to show that he was entitled to unlimited accumulation of leave.

The court found that the provisions of the Basic Conditions of Employment Act 75 of 1997 determined the employee’s entitlement to and the accrual of paid annual leave.

In terms of s 20(1) read with s 20(2) and s 20(4), the employee’s statutory leave entitlement was 15 days, and it could not accrue beyond the period of six months following the end of a particular leave cycle, after which it was forfeited (Hartley v SMD Trading Group CC at 2561).

Basic Conditions of Employment Act 75 of 1997 — Notice Pay

The employee, who had been employed for less than a year, was fairly retrenched.

She requested her immediate release from work, which the employer granted. In proceedings before the Labour Court the employee claimed that the employer was obliged in terms of ss 37(1)(b) and 38(1) of the Basic Conditions of Employment Act 75 of 1997 to pay her two weeks’ notice pay.

The court found that the employee’s request did not constitute a clear and unambiguous waiver of her right to notice pay, and that she was therefore entitled to notice pay for the entire period of notice (Van Haght v JBS Building Co (Pty) Ltd at 2629).

Contract of Employment — Breach — Unilateral Reduction of Salary

The employee resigned following the reduction of his salary by 67%.

The employee alleged that the reduction had been unilateral, while the employer claimed that the employee had verbally agreed to the reduction.

The Labour Court found that there was no evidence that the employee had agreed to the reduction, and that it was clearly unilateral.

The court found that this constituted a breach of contract, entitling the employee to terminate the contract and to claim damages (Hartley v SMD Trading Group CC at 2561).

Dismissal — Enquiry before Arbitrator — Section 188A of LRA 1995

An employee was notified to attend an enquiry before an arbitrator in terms of s 188A of the LRA 1995.

She was only provided with certain documents on the day before the hearing and with the employer’s bundle on the day of the hearing.

She requested a postponement, which was denied by the arbitrator.

In an application to review the decision of the arbitrator, the Labour Court found that the arbitrator had not afforded the employee a proper opportunity to peruse the documents and the employer’s bundle.

In addition, the arbitrator had not conducted an enquiry into prejudice, and, had she done so, she would have come to the inevitable conclusion that the manifest and irreparable prejudice wrought on the employee dictated the granting of the postponement (Maeta v Bidvest Services (Pty) Ltd & others at 2587).

Dismissal — Trade Union Official Attending to Union Duties

The employee, a trade union office-bearer, was dismissed after the employer found that she had called a meeting of staff members to discuss union matters at the workplace without the employer’s permission and that she had attended CCMA proceedings without her employer’s permission.

In unfair dismissal proceedings before the CCMA the commissioner found that there was no evidence that the employee had called a meeting at the workplace; she had merely been chatting to fellow employees before the start of the workday.

The commissioner found further that the employee had in fact attended the CCMA proceedings while she was off duty, and could not be charged with conducting union activities when off duty.

The employee’s dismissal was set aside and she was reinstated with full retrospectivity (SA Commercial Catering & Allied Workers Union on behalf of Maganda and Carevita Parsonage Home at 2660).

Discrimination — Sexual Orientation

The employee’s supervisor at one of the department’s pharmacies had mockingly asked her whether she wanted to be called ‘aunty/uncle’.

The employee lodged a grievance, and when she was not satisfied with the outcome, referred an unfair discrimination dispute to the CCMA.

She alleged that she had been unfairly treated on the ground of her s*xual orientation by her supervisor.

The commissioner found further that, while it was not disputed that both the employee and the supervisor knew that they had the same s*xual orientation, or that they were le****ns, and that this was most likely known among the pharmacy staff, this did not mean that the supervisor was automatically sensitive to the feelings of a fellow member of the LGBTQQIA+ community, as she had claimed.

The key issue was that the senior supervisor should not have used questioning of an employee’s s*xual orientation to raise a laugh in front of colleagues and patients.

The commissioner was therefore satisfied that the employee had been unfairly discriminated against on the ground of her s*xual orientation, and awarded her compensation in the amount of R10,000 (Public Servants Association on behalf of Ngoma and Gauteng Department of Health at 2648).

Practice and Procedure

The appellant department was ordered by an arbitrator to comply with a collective agreement that it had failed to implement for ten years.

The Labour Court made the award an order of court. In an appeal, the department sought condonation of the late filing of a review although it had never filed a proper review application, and it also sought condonation of the late filing of the record on appeal.

The Labour Appeal Court found that no proper explanation had been given for the delays.

It refused to grant condonation, finding that the only proper course for the Labour Court to have followed was to make the award an order of court (Department of Correctional Services v Solidarity on behalf of Taljaard & others at 2505).

Some ten years after his dismissal, a public service employee instituted a claim for damages for breach of contract against the appellant department.

He applied for condonation for his non-compliance with ss 3 and 4 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, explaining that he had believed that the Act did not apply to claims arising from employment.

The Labour Court granted condonation.

On appeal against this ruling by the department, the Labour Appeal Court noted the requirements that had to be satisfied before condonation would be granted, and found that the employee had failed to show good cause for his failure to comply with the Act (Minister of Justice & Correctional Services v Nene at 2516).

A CCMA commissioner had found that the CCMA lacked jurisdiction to determine whether a collective agreement between the company and the union could be cancelled.

A few years later, when the union threatened to strike over it demand to restore the conditions that prevailed before the collective agreement was entered into, the company referred an interpretation and application dispute to the CCMA.

The union pleaded res judicata.

The commissioner found however that the earlier jurisdictional ruling did not deal with an interpretation dispute, and it consequently had jurisdiction to determine the company’s dispute (Goodyear SA (Pty) Ltd and National Union of Metalworkers of SA at 2640).

Quote of the Month:

Snyman AJ in Hartley v SMD Trading Group CC (2024) 45 ILJ 2561 (LC):

‘The purpose of guaranteed annual leave afforded to employees in terms of the BCEA was never intended to constitute some kind of piggybank for employees to utilise to generate a lucrative cash pay-out when leaving employment.

The purpose of affording employees guaranteed leave is so that employees have the opportunity of guaranteed rest and recuperation, which in turn would actually protect their employment and enhance workplace safety and efficiency, placed at risk by a fatigued employee.

Employees must know that they have to take their leave, or else they will lose it.

That way, they will be motivated to enforce their rights, take their leave, and the objectives of the BCEA will be achieved.’



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