Latest issue of SILCS published 15 March 2012. Issue 6 of 2012 deals with:

Erasmus v Minister of Safety & Security and Another
LC JR 1122/09 7 December 2011 24 pages
Lagrange J
SILCS 2012:06
Jurisdiction – Labour Court – Review jurisdiction in terms of s 158(1)(h) of the Labour Relations Act – Challenge by police officer to medical recommendation that she be dismissed for health reasons - Judicial review not confined to reviews of administrative action in terms of PAJA but also included a review based on the principle of legality - Recommendation of the medical board convened at the behest of the respondent was a necessary adjunct to the commissioner’s decision making process and its actions and recommendations were to all intents and purposes prerequisites for that decision – Court had jurisdiction.

Gauteng Shared Services Centre v Ditsamai
LAC JA 44/09 7 December 2011  9 pages
Davis JA
SILCS 2012:06
Dismissal – Unfair dismissal in terms of Labour Relations Act – Concurrency of claims – Compensation for unfair dismissal not precluding a claim for unfair discrimination under the Employment Equity Act.

Siemens Ltd v CCMA and Others
LC JR 2672/08 8 December 2011  8 pages
Savage AJ
SILCS 2012:06
CCMA – Jurisdiction of – When issue of jurisdiction to be considered – May be determined in course of arbitration proceedings and not necessarily prior to conciliation taking place.

Trentyre (Pty) Ltd v National Union of Metalworkers of SA and Another
LAC CA 4/2011 12 December 2011 9 pages
Zondi AJA
SILCS 2012:06
Appeal – Leave to appeal – Petition for – Condonation for late filing of – petition brought ten months late – Petitioner’s averments amounting to deliberate attempt to mislead the court – Petition refused.

Ikwezi Municipality v SA Local Government Bargaining Council and Others
LC P 233/10 8 December 2011  11 pages
Bhoola J
SILCS 2012:06
Dismissal – Grounds for – Employee writing letter to local newspaper describing chaotic state of affairs in municipality where he worked – Employee dismissed for serious breach of trust and bringing employer into disrepute – Arbitrator’s decision to set aside the dismissal upheld on review as no evidence that relationship of trust had broken down.

Mphigalale v Safety & Security Sectoral Bargaining Council and Others
LC JR 2028  7 December 2011  14 pages
Savage AJ
SILCS 2012:06
Dismissal – Grounds for – Dismissal of police officer for accepting bribe of R500 from illegal immigrants – Even though there may have been instances in the past where officers found guilty of similar offences had not been dismissed, nature of offence such that dismissal not inappropriate.

Harsco Metals SA Ltd and Another v Arcelor Mittal SA Ltd and Others
LC J 2923/11 29 December 2011 23 pages
Van Niekerk J
SILCS 2012:06
Sale of business – As a going concern in terms of s 197 of Labour Relations Act – What constitutes such a transfer of business – Services performed transferred to new contractors after a tender process – Some of assets used in performance of services transferred and majority of employees transferred – Court holding that there had been a transfer of business as a going concern in terms of s 197 of LRA.

Cenge and Others v MEC, Department of Health, Eastern Cape and Another
LC P578/11 6 December 2011   8 pages
Lagrange J
SILCS 2012:06
Interdict – To prevent deductions from employees’ salaries where deductions would be contrary to s 34 of the Basic Conditions of Employment Act 75 of 1997 – Replacement of scarce skills allowances with occupational specific dispensation for public servants – Repayment of former allowances by way of deductions contrary to s 34 of BCEA.

Transnet Rail Engineering Ltd v Transnet Bargaining Council and Others
LC JR 2191/09 1 December 2011  11 pages
Molalehi J
SILCS 2012:06
Dismissal – For theft – Employee relying on defence that he was a kleptomaniac – Arbitrator’s decision that dismissal was unfair set aside – Expert evidence not properly placed before court – Court in any event misreading report – No basis shown for finding of kleptomania.

Mahlangu v Premier, Mpumalanga and Another
LC J 2757/11 5 December 2011  2 pages
Van Niekerk J
SILCS 2012:06
Interdict – To decide an issue before a disciplinary hearing – Issue had not even ben raised at the disciplinary hearing – Proceedings premature – Application dismissed.

 

 

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About the author

Owen Barrow has a BA LLB from the University of Cape Town and is an admitted attorney. Owen was for many years an editor of the South African Law Reports published by Juta& Co Ltd and later became the publisher of Juta’s law reports publications, including the Industrial Law Journal and Labour Law Digest. After leaving Juta in 2000, Owen returned to practise as an attorney until 2009. He is currently a freelance editorial consultant.

 

Issue 5 of 2012 deals with:

Security, Cleaning, Manufacturing and Allied Workers Union v NSA Security Services (Pty) Ltd
LC J2021/10 8 September 2011  10 pages
Lagrange J
SILCS 2012:05
Agreement – Interpretation of – Settlement agreement reached at conciliation hearing that employee would report for duty at a specific station but agreement not specifying where services would be rendered even though this issue was the subject of the dispute between the parties – Employer failing to show on a balance of probabilities that it was more likely that the parties intended that employee would perform his services at branch other than place where he was required to report for duty.
 
SA Post Office Ltd v Moloi NO and Others
LC J1426/11 12 October 2011  18 pages
Molalehi J
SILCS 2012:05
Practice – Service of documents – Service by fax – Fax indicating that five pages had been transmitted but no proof that annexures to notice of motion had been sent – Applicant also sending email message to respondent containing notice of motion – Rules do not provide for service by email but in any event no proof that annexures attached to that email.
 
ADT Security (Pty) Ltd v National Security & Unqualified Workers Union and Others
LC C671/11 2 September 2011  19 pages
Steenkamp J
SILCS 2012:05
Protest – Union organising a march to protest to employer that had refused it organisational rights – Union obtaining permission from local authority under Regulation of Gatherings Act 2005 of 1993 – Contention by employer that march unlawful as it circumvented the scheme of the Labour Relations Act – Although march possibly inconvenient for employer or even contrary to spirit of the LRA, it was being held in terms of a constitutional right as given effect to in the Gatherings Act and was clearly lawful – Application for order declaring march unlawful dismissed.
 
Southern Sun Hotel Interests (Pty) Ltd v CCMA and Others
LC C255/09; C362/09 21 June 2011  21 pages
Steenkamp J
SILCS 2012:05
CCMA – Jurisdiction – Review of jurisdictional ruling – Claim by illegal foreigner under s 186(2) of the Labour Relations Act that she had been unfairly suspended – Argument that the employee could not lawfully tender her services and was therefore not entitled to any remuneration and that the claim was actually one under the Basic Conditions of Employment Act 75 of 1997 beside the point – The question was whether the CCMA had jurisdiction to deal with it – Unreasonableness of the decision not relevant in jurisdictional matters.
 
Maree v Moneyline Financial Services (Pty) Ltd and Another
LC JS1309/09 12 August 2011  41 pages
Shai AJ
SILCS 2012:05
Dismissal – For operational reasons – As a result of transfer of business – Respondents colluding to prevent employee from being transferred to new employer when business sold as a going concern as her salary was too high for new employer – Attitude of respondents throughout the proceedings that they could not stick to the letter of the law – Employee awarded 17 months’ salary as compensation.
 
Thabethe and Two Others v Lamprecht Properties CC
LC P544/09 26 October 2011  13 pages
Lagrange J
SILCS 2012:05
Contract of employment – Interpretation of – Limited duration contract providing for automatic termination of employees’ services ‘on completion …of construction on the site’ – Evidence indicating that painting work, which was a component of the construction work, had not been completed and that employer had merely decided to suspend operations – Court holding that automatic termination had not taken place.
 
SATAWU and Others v Netshutuni Bus Services
LC JS1297/09 28 October 2011  4 pages
Bhoola J
SILCS 2012:05
Dismissal – For operational reasons – Respondent contending that it had established a commercial rationale for restructuring and retrenchment – Evidence indicated however that employer merely getting rid of ‘old aged’ who were doing unsatisfactory work – Dismissal substantively unfair and reinstatement ordered.
 
Ngema and Others v Screenex Wire Weaving Manufacturers
LC JS867/05 19 October 2011  13 pages
Lagrange J
SILCS 2012:05
Joinder – Of parties – As a result of a transfer of business of an employer – At what stage joinder should take place – Applicant seeking order to substitute employer in order of Labour Appeal Court after judgment by that court – Applicant becoming aware of transfer at time of hearing of matter by Labour Appeal Court – Joinder should have taken place when applicant became aware of it even if it was at appeal stage – Application dismissed.
 
Metshe v Public and Allied Workers Union
LC C727/10 23 June 2011   10 pages
Lallie AJ
SILCS 2012:05
Dismissal – For operational reasons – Employee suspended pending investigation of possible charges but investigation not pursued and employee retrenched instead – Notice in terms of s 189 of Labour Relations Act defective – Clear that retrenchment was a pretext for getting rid of troublesome employees – Dismissal procedurally and substantively unfair – Eight months’ salary awarded as compensation.
 
Metshe v Public and Allied Workers Union
LC C727/1 0 28 September 2011  10 pages
Lallie AJ
SILCS 2012:05
Dismissal – For operational reasons – Procedurally and substantively unfair dismissal – Compensation – Contention that in determining compensation employee’s alleged misconduct ought to be taken into account dismissed – No proof of misconduct but in any event a dismissal for operational reasons a no fault dismissal.

 

Issue 4 of 2012 deals with:

 

First National Bank v Language and Others
LC D416/09 8 December 2011 20 pages
Bhoola J
SILCS 2012:04
Dismissal – Offences involving dishonesty – Bank employee having reversed bank charges on his own private account – Free service for bank employees having been discontinued and employees specifically warned against granting themselves this perk – Employee in question had reversed charges out of frustration as he had requested and paid for bank statements that he had not received – Charges incorrectly formulated and he was not specifically charged with disobeying instruction – Setting aside of dismissal confirmed on review.

Chibi v MEC: Department of Co-operative Governance and Traditional Affairs (Mpumalanga)
LC J 1764/11 22 September 2011 19 pages
Reddy AJ
SILCS 2012:04
Public servant – Member of Senior Management Service – Suspension of without pay  and demotion – SMS Handbook providing in clause 2.7.4 for wide discretion of chairperson of disciplinary inquiry – Chairperson not restricted in imposing sanction of suspension without pay or demotion to situations where they are imposed as alternatives to dismissal.

Lebu v Maquassi Hills Local Municipality
LC J 2035/11 21 October 2011 13 pages
Steenkamp J
SILCS 2012:04
Local government officials – Municipal manager – Suspension of – Answering affidavit provided by municipality in proceedings by employee deposed to by acting municipal manager after manager’s suspension – Authority to depose to affidavit challenged – Nothing improper in terms of Municipal Systems Act 32 of 2000 in acting municipal manager opposing proceedings.

Phoffu and Others v Flexible Staffing Solutions
LC  JS822/08 15 October 2011 13 pages
Lagrange J
SILCS 2012:04
Costs –Rescission of judgment – Default judgment granted in error as no case number on statement of claim and no application for condonation for subsequent statement of claim – Applicant for rescission however sitting back and not doing anything on receipt of documents – Applicant ordered to pay respondents’ costs.

Continuous Oxygen Suppliers (Pty) Ltd v Meintjies and Another
LC J2073/11 17 October 2011 19 pages
Steenkamp J
SILCS 2012:04
Restraint of trade – Enforcement of – Employee bound by free-standing restraint agreement not to be involved in similar business to that of employer for period of two years after terminating employment – Employee in such a position that by transferring her services to competitor, the latter would obtain a foothold in area where it did not have one – Period of restraint however whittled down to 12 months.

Hlabangwane v MEC for Public Works, Roads and Transport, Mpumalanga
LC J2170/11 24 October 2011 11 pages
Molalehi J
SILCS 2012:04
Public servant – Disciplinary proceedings against – Institution of or continuation of proceedings where employee transferred to another department – Specific procedure to be adopted in such case – Matter regulated by s 16B(4) of Public Service Act of 1994 – Consent of head of new department required.

University of Pretoria v CCMA and Others
LAC JA 38/2010 4 November 2011 13 pages
Davis JA
SILCS 2012:04
Dismissal – Failure to renew fixed term contract where employee had reasonable expectation that it would be renewed – Expectation of permanent or indefinite employment not providing a ground for claim of dismissal under s 186(1)(b) of Labour Relations Act.

Gauteng Shared Services Centre v Ditsamai
LAC JA 44/09 7 December 2011 9 pages
Davis JA
SILCS 2012:04
Dismissal – Unfair dismissal – Two separate claims brought – Employee awarded compensation under s 186 of Labour Relations Act and then bringing claim based on unfair discrimination under s 6 of Employment Equity Act 55 of 1998 – Latter claim not res judicata - Latter dispute required a completely different determination to that which confronted the arbitrator in first  dispute which turned on the fairness of an early termination of the contract.

Northam Platinum Mines v Shai NO
LC JR435/08 10 November 2011 28 pages
Lagrange JA
SILCS 2012:04
Evidence – Single witness – Evaluation of evidence of in light of cautionary rule – Court noting current less stringent standard.

 

Issue 3 of 2012 deals with:

Joni and Others v Servest (Pty) Ltd
LC C833/05  16 August 2011 15 pages
Francis J
SILCS 2012:03
Condonation - Application for - Late filing of statement of opposition - Court having made order that party file statement of opposition by a certain date - Party complied with order albeit after the date set but still did not make application for condonation - Contention that court had granted condonation by implication by ordering that the statement be filed, not accepted as court could not have granted something which had not been applied for.

Andronica v Swanepoel NO and Others
LC JR 422/10   20 June 2011   5 pages
Lallie AJ
SILCS 2012:03
Jurisdiction - Of CCMA - Commissioner having declined jurisdiction on basis that he had no power to determine dispute as to whether a settlement agreement was in full and final settlement of dispute - CCMA exercising only the powers given to it by legislation - Decision to decline jurisdiction upheld.

Pankana CC t/a R&W Transport Components v Dreyer NO and Others
LC  JR 1800/09  14 September 2011  13 pages
Cook AJ
SILCS 2012:03
Jurisdiction - Of CCMA - Jurisdiction a matter of fact - Jurisdictional point raised at review stage - CCMA lacking jurisdiction as matter fell within ambit of MIBCO - Award by CCMA arbitrator set aside.

Cachalia and Others v Vinning
LC  J2291/10   21 October 201  22 pages
Reddy AJ
SILCS 2012:03

Trial - Evidence - Subpoena - Of MEC of provincial department - Evidence deemed to be relevant to proceedings - Contention that as the person subpoenaed as MEC was no longer the MEC and was therefore not in a position to testify, rejected where MEC still in service of provincial government and he was intimately involved in the subject matter of the dispute.

Aard Mining Equipment (Pty) Ltd v Swanepoel
LC JR 129/10 31 August 2011  10 pages
Cele J
SILCS 2012:03
Rescission of judgment - When granted - Non-receipt of court process -Non-receipt due to negligence of attorneys and parties' attorneys in communication with each other right up until date of hearing - Rescision refused.

MO v JES
LC JS795/10 31 August 2011  12 pages
Lagrange J
SILCS 2012:03
Recusal - Of presiding officer - Proceedings in Labour Court - Employee's HIV status revealed to court - Employer seeking judge's recusal despite employee's agreement that evidence be expunged - judges regularly confronted with prejudicial evidence - That evidence was not evidence that fell to be considered at all - Application for recusal dismissed.

South African Municipal Workers Union v South African Local Government Bargaining Council and Others
LC JR25/95  21 June 2011   13 pages
Lagrange J
SILCS 2012:03
Disciplinary inquiry - Powers and duties of presiding officer - In terms of collective agreement - Collective agreement in question giving presiding officer wide powers but power to merely recommend a sanction to employer not one of those powers - Presiding officer had to determine sanction himself.

NUM obo Gabela v CCMA and Others
LC JR2383/09 30 June 2011  15 pages
Lagrange J
SILCS 2012:03
Rescission - Ruling by arbitrator - Grounds for rescission - Allegation that employee and union were not aware of set down of hearing - Fax message sent to same address as previous notice to which the employee and union had reacted - Employee furthermore failing to show reasonable prospects of success - Application dismissed.

MTN Service Provider (Pty) Ltd v Alves
LC JS1237/09 31 August 2011  6 pages
Steenkamp J
SILCS 2012:03
Rescission - Of default judgment - Explanation for default rejected as being not reasonable - Matter instituted on basis of spurious defence - Punitive costs ordered.

Issue 2 of 2012 deals with:

Madibeng Local Municipality v South African Local Government Bargaining Council (NW Division)
Labour Court   JR 2033/09     9 June 2011                14 pages
Lallie AJ
SILCS 2012:02
Dismissal – Unfair dismissal – Remedies – Reinstatement and reimbursement – Employee seeking relief in the form of compensation – Arbitrator granting both reinstatement and reimbursement – Section 193 of the Labour Relations Act not providing for reimbursement.
 
Aunde South Africa (Pty) Ltd v National Union of Metal Workers of SA
Labour Appeal Court   DA 10/09         20 June 2011              23 pages
Tlaletsi JA
SILCS 2012:02
Trade union – Recognition of – Trade union losing majority representation in workplace and employer signing recognition agreement with another union – Employer then immediately retrenched large number of employees and then re-employed them on less favourable terms – New recognition agreement silent on regulation of consultation process in event of retrenchment – Employer obliged to consult with employees and former union – In any event the earlier recognition agreement had not yet been terminated.
 
Chemical Energy Paper Printing and Allied Workers Union and Others v CTP Ltd
Labour Court   JS 215/10        22 June 2011              24 pages
Lagrange J
SILCS 2012:02
Condonation – Grounds for – Late filing of statement of case – Delay significant and explanation for delay weak – However a number of important legal issues arose from the case and in interests of justice that these issues be determined – Condonation granted.
 
Kgobokoe v CCMA and Others
Labour Court   JR1260/08      29 June 2011              26 pages
Shai AJ
SILCS 2012:02
Withdrawal – Of notice of withdrawal – Whether latter withdrawal had legal effect – Employee signed notice of withdrawal of matter at CCMA after being led to believe that his employer would meet his demands – Employee also pressurised by commissioner into signing withdrawal as he would not give him time to obtain employer’s offer in writing – Employer subsequently refusing to comply with earlier offer – In circumstances notice of withdrawal set aside.
 
Karan Beef (Pty) Ltd v Mbelengwa NO and Others
Labour Court   JR 896/10       7 June 2011                10 pages
Molalehi J
SILCS 2012:02
Dismissal – For misconduct – Failure to obey an instruction – Employee, a driver, failed to wash his truck when commanded to do so – His refusal based on his belief that he was not required to do so and that his primary duty was to collect the consignment and deliver it immediately – Even though his actions may have been in breach of company’s policies the employer had acted too hastily in dismissing him – Employer ought to have imposed progressive discipline in circumstances.
 
Arbuthnot v South African Municipal Workers Union Provident Fund
Labour Court   JS 575/09        15 September 2011                14 pages
Van Niekerk J
SILCS 2012:02
  Protected disclosure – What constitutes – Official of pension fund disclosed contents of legal opinion to union’s benefits officer relating to liabilities of trustees of fund where there had been a significant loss of fund’s investments – Disclosure made only to union official who was in a position to do something about it – Employee having acted in good faith and motivated by the desire to do good – Union officer in any event attended board meetings of the fund – Disclosure a protected disclosure in terms of Protected Disclosures Act and dismissal of employee on the grounds that she had disclosed the opinion, set aside.
 
Pik-it-Up Johannesburg (Pty) Ltd v SALGBC and Others
Labour Court   JR 1834/09     28 June 2011              13 pages
Molalehi J
SILCS 2012:02
Dismissal – Failure to renew fixed term contract in circumstances where employee had reasonable expectation that contract would be renewed – Contract in question provided that it would be renewed after five years subject to performance – All indications were that employee had performed well during the five year period – Employee found to have a reasonable expectation that contract would b renewed – Dismissal set aside.

 

Issue 1 of 2012 deals with:

  National Entitled Workers Union v Minister of Labour and Others     

 

Labour Appeal Court JA 84/2010 29 September 2011 21 pages

Davis JA

 

Trade union – Registration and deregistration of – Powers of Registrar in terms of Labour Relations Act 66 of 1995 – Discretionary cancellation of registration not violating provisions of Constitution and Promotion of Administrative Justice Act – Union having used funds to play the lotto and made unsecured loans to its president - Appeal against deregistration dismissed.

Makhosi v Mhlave Investment Holdings (Pty) Ltd

Labour Court J2297/08 7 June 2011 9 pages

Molalehi J

Trial – Evidence – Witnesses – Evaluation of – Difficult witness – Credibility of difficult witness not to be placed on wooden block to be chopped.

The Workforce Group (Pty) Ltd v CCMA and Others

Labour Court J2699/09 22 September 2011 6 pages

Van Niekerk J

Employee – Whether person an employee or independent contractor – Fact that employee invoiced for his services, charged VAT and was free to offer his services to others not significant where he in fact worked under the control and direction of the employer.

Lovemore Bros Transport (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others

Labour Court D543/08 20 June 2011 12 pages

Lallie AJ

Arbitration – Review of – On ground that party’s representative (human resources officer) not legally competent – On facts party’s representative had been assisted by arbitrator – Party bound by its party’s decision – Review dismissed.

Arbitration – Review of – Jurisdiction – Allegation that certificate of outcome unsigned and matter had been dismissed at conciliation stage – Certificate valid until court ordered otherwise.

Mickelet v Tray International Services and Administration (Pty) Ltd

Labour Court C717/10 6 September 2011 6 pages

Steenkamp J

Jurisdiction – Of bargaining council – Matter referred to bargaining council despite employer not falling within scope of bargaining council – Commissioner did not make jurisdictional ruling but issued a certificate stating that the matter remained unresolved - Certificate of outcome did not confer jurisdiction on arbitrator to do anything that it was not empowered to do – Commissioner did not have jurisdiction and accordingly court did not have jurisdiction.

South African Police Services v Safety and Security Sectoral Bargaining Council and Others

Labour Court C118/07 26 August 2011` 12 pages

Steenkamp J

Dismissal – Constructive dismissal – Proof of dismissal – Police dog handler’s dog withdrawn from work leading to conflict between employee and police authorities - Undertakings made to employee by superiors not followed through and employee effectively punished by means of transfer and removal of dog to which he was attached – Employee resigned – Court finding constructive dismissal but holding that employee partly responsible for deterioration of working relationship.

 

 

 

 

Issue 31 of 2011 deals with:

Higher Education and Others (Labour Court J604/11 3 May 2011 53 pages A C Basson)

Sectoral education and training authority- powers of Minister – two councils in existence for same SETA, one appointed by Minister and the other by the council of the SETA – Minister also appointing chairman of council who suspended CEO of SETA after CEO questioned chairman’s authority – Minister also attempting to impose new constitutions on SETA – court holding that SETA’s original constitution still applied – Minister did not have the power to impose unilaterally a new constitution on SETA – his powers limited to approving a constitution – appointment of chairperson invalid and his action in suspending CEO also invalid

National Union of Mineworkers obo 112Employees v CCMA and Others (Labour Appeal Court CA11/2007 17 March 2011 12 pages Davis JA, Mlambo JP, Landman AJA)

Strike – what constitutes a strike – situation where employees withholding services as employer had breached contract – key issue in terms of s 213 of Labour Relations Act 66 of 1995 to classify whether refusal to work for whatever reason in order to remedy a grievance fell within scope of Act’s regulation of a strike – Nkutha and Others v Fuel Gas Installations (Pty) Ltd [200] 2 BLLR 178 (LC) at 69-72 not approved – strike in question an unprotected strike

Volkswagen SA (Pty) Ltd v Koorts NO and Others (Labour Appeal Court PA10/09 9 March 2011 23 pages Mlambo JP, Thlaletsi A, Landman AJA)

Arbitration – submission to arbitration based on common error – employer, in referring matter to private arbitration, insisting that it be entitled to rely on review grounds in s 145 of Labour Relations Act – Labour Court however bound by narrow grounds of review in Arbitration Act 42 of 1965 – common error as to law – review standard provision in agreement not material and could be severed from arbitration agreement – submission to arbitration not invalid

SALGA v SAMWU (Labour Appeal Court JA26/2007 29 March 2011 12 pages Zondo JP, Waglay JA, Kruger AJA)

Secondary strike – whether requirements of s 66(2)(c) of Labour Relations Act met – first decision of Labour Appeal Court on meaning of s 66(2)(c) – subsection did not require there to be actual harm to be suffered by primary employer – sufficient if there was possibility of harm

Sekwati v Masiye and Others (Labour Court J291/2011 24 February 2011 9 pages Lagrange J)

Police – disciplinary proceedings against – suspension without pay – suspension without pay not only possible if subregs 18(2), (3) and (4) have been followed – suspension clearly competent under subreg 18(5)(a)

Hydro Colours Ink (Pty) Ltd v Chemical, Energy, Paper, Printing, Wood and Allied Workers Union (Labour Appeal Court JA48/07; 77/09 16 November 2010 14 pages Tlaletsi JA, Zondi AJA, Molemela AJA)

Transfer of business as a going concern – Effect of s 197 and 197A of Labour Relations Act 66 of 1995 – circumstances in instant case where business continued at same premises, with same contact numbers, same employees doing same work at same pay – court holding that business had been transferred as a going concern – s 197 and 197A applicable

Issue 30 of 2011 deals with:
 

Tigerls v Development Bank of South Africa and Others (Labour Court J2242/10 1 March 2011 12 pages (Lagrange J))

Interdict relating to protected disclosures – matter decided on the facts

Feni v Pan South African Language Board (Labour Court J1179/2009 24 March 2011 14 pages (AC Basson J))

Protected disclosures – enforcement of legislation – applicant approaching Labour Court on notice of motion without referring dispute to CCMA – Labour Court holding that it did not have jurisdiction – applicant should have approached the court by way of referral of a statement of claim after issue of certificate of non-resolution by CCMA – Protected Disclosures Act 26 of 2000

Raswisi v CCMA and Others (Labour Court JR3121/09 22 March 2011 12 pages (Lagrange J))

Arbitration – arbitrator – bias – transcript of proceedings revealing that arbitrator had approached the witnesses in such a way that it created a justifiable impression that he had a predisposition to assist the employer in putting its case and challenging the applicant’s case

Baldwin Steel and Another v NUMSA and Others (Labour Court J5256/2000 22 March 2011` 9 pages (Lagrange J))

Dismissal of referral due to unreasonable delay in prosecuting it – lengthy delay in present case explained by union as having been caused by departure of officials over the period of the delay – severe prejudice to employer if obliged to defend a case 10 years after the cause of the claim arising – rotation of staff in big organisation something to be expected and provided for to ensure continuity in operations

Minister of Safety and Security and Another v Govender (Labour Court JS164/2003 16 November 2011 10 pages (Lagrange J))

Unfair discrimination – promotion dispute – allegation that SAPS had not followed its employment equity plan – applicant also claiming unfair discrimination in terms of s 6 of Employment Equity Act 55 of 1996 – no conciliation having taken place at bargaining council but it was not the intention of the Act (and LRA) that dispute should fester at conciliation stage merely because conciliation process had not been attempted – court ruling that primary claim based on SAPS’ failure to give effect to its employment equity plan and in absence of any evidence that enforcement mechanisms of the EE Act had been exhausted Labour Court did not have jurisdiction

Mondi Packaging SA (Pty) Ltd v Harvey and Others (Labour Court C548/2009 16 November 2010 14 pages (De Swardt AJ))

Arbitration – joinder – dispute as to correct identity of employer subsequent to labour broking agreement – employee having commenced dispute in CCMA, then going to bargaining council but after certificate of non-resolution on basis of wrong employer cited returned to CCMA where labour broker cited as employer – evidence led at CCMA which threw doubt as to whether labour broker was the employer – original employer then joined but not given opportunity of challenging evidence already presented and denied opportunity of presenting argument as to why it should not be regarded as the employer – serious irregularities resulting in setting aside of proceedings and remittal to CCMA

Issue 29 of 2011 deals with:

Oasis Group Holdings (Pty) Ltd v Bardien (Labour Court C9682/2010 1 November 2010 9 pages (Steenkamp J))

Urgent application for order that contract of employment be suspended while employee incapable of performing duties owing to illness – employee resigned – asked for notice period to be waived – health had deteriorated substantially – had not returned to work – had submitted medical certificates declaring him unfit to do so

Before resignation, employee alleged to have given risky financial advice to client – had admitted wrongdoing – employer obliged by law to hold disciplinary enquiry into employee’s conduct and make disclosure to FSB – FAIS Act provides that financial services provider must be satisfied that representatives are competent to act and comply with ‘fit and proper’ requirements of the Act

Employee entitled to take sick leave during notice period – on face of medical certificates provided, had not refused to tender services – unable to do so owing to illness – application dismissed

Stander v Department of Education, North West (Labour Court JR2885/08 5 November 2010 10 pages (Molahleli J))

Employee dismissed for assaulting a learner – learner had severely provoked him – employee had acted involuntarily in circumstances of ‘semi-automatism’ – employee dismissed after disciplinary process – not afforded opportunity to lead evidence in mitigation – medical report from doctor constituted uncontested evidence

Employee alleged that commissioner had committed misconduct and gross irregularity – had exceeded powers – decision of commissioner was in circumstances of this case not reasonable – arbitration award unjustifiable because uncontested evidence disregarded by the commissioner

Commissioner failed to take cognisance of the fact that further enquiry needed to be conducted – whether dismissal was fair or otherwise – failed to appreciate responsibility in terms of provisions of s 188(1) and (2) of the Labour Relations Act 66 of 1995

Matter reviewed, set aside and remitted back to bargaining council for determination by another commissioner

Vodacom (Pty) Ltd v CCMA & Others (Labour Court JR1412/05 11 November 2010 12 pages (LaGrange J))

Application to review and set aside award – commissioner determined dismissal of employee procedurally unfair – reinstated employee without back pay – employee failed to notify employer of whereabouts – provided medical certificate on return to work

Commissioner’s approach to evidence before her affected by interpretation of employer’s failure to treat employee’s absence as desertion – disregarded other pieces of evidence – should have weighed up all the evidence without making assumption about disciplinary options available to employer – failed to weigh evidence in a balanced manner

Commissioner’s finding that employee’s dismissal was substantively unfair set aside – substituted with finding that it was substantively fair – finding that dismissal was procedurally unfair upheld.

Volschenk & Another V Morero NO & Others (Labour Court J2247/10 10 November 2010 7 pages (Molahleli J))

Application for interdict staying disciplinary proceedings pending a review of ruling denying employees legal representation – representation only by union representatives permitted – no ‘parity of arms’ since employer had legal representation

Most serious prejudice employees could face was dismissal, not a civil judgment debt – would be able to defend themselves – could exercise right not to give evidence

Criminal and disciplinary proceedings distinct – result of one may not be relied on in other proceedings – employees entitled to exercise right not to give evidence – application for interim relief refused

Issue 28 of 2011 deals with:

Algem Security Technology CC v SATAWU and Another (Labour Court JS1340/09 29 April 2011 6 pages (Rabkin-Naicker AJ))

Rescission of judgment – when granted – when judgment erroneously sought or granted – applicant not having a reasonable defence – reasons proferred for delay not amounting to good cause – defence subsequently disclosed could not transform a validly obtained judgment into one granted erroneously

Burger v Quanticost Quality Surveyors (Labour Court J970/2009 5 May 2011 9 pages (Molahlehi J ))

Settlement agreement – interpretation of – agreement concluded before start of disciplinary hearing – dispute subsequently arising whether employer obliged to pay bonus payments to employee whose services were terminated by the agreement – court holding that what was owing to employee could be ascertained by reference to the Basic Conditions of Employment Act – employee entitled under employment contract to payment of bonuses

Independent Municipal and Allied Trade Union obo Verster v Umhlatthuze Municipality and Another(Labour Court D644/09 6 May 2011 16 pages (Lagrange J))

Arbitration – arbitrator – jurisdiction of – whether claim amounting to claim for a ‘benefit’ as envisaged by s 186(2)(a) of the Labour Relations Act – acting allowance – earlier narrow approach to as to scope of an unfair labour practice concerning a benefit has been rejected in favour of a more nuanced interpretation – employee’s claim for an acting allowance not a demand to make the benefit payable in the future but rather that employer had unfairly refused to pay him the allowance on the occasion in question – arbitrator having jurisdiction in these circumstances

SAMWU obo Mathabela v Moroka Local Municipality(Labour Court J2242/2011 15 December 2010 7 pages (Lagrange J))

Disciplinary hearing – representation at hearing and selection of chairperson – practising advocate representing employer and practising advocate acting as chairperson – in terms of clause 6.6.4 and 6.6.2 of the Disciplinary Procedure and Code of the SA Local Government Bargaining Council practising advocate could neither represent employer nor preside at disciplinary hearing

National Bargaining Council for the Clothing Manufacturing Industry (Cape) v J ‘n B Sportswear CC and Another (Labour Court C489/2010 3 March 2011 24 pages (Steenkamp J))

Bargaining council – compliance order against employer in terms of s 33A(3) of the Labour Relations Act and clause 15.6.3.2.5 of bargaining council’s constitution – status of such orders – not enforceable against employer; if contested they had to be arbitrated – at most a compliance order could be regarded as a demand for payment – powers of designated agent not limited to those of an inspector under Basic Conditions of Employment Act – not permissible to import provisions of one statute into another Estoppel – whether bargaining council estopped from complaining that employer not compliant where it had previously issued employer with compliance certificate – employer in instant case who had raised estoppel bore the onus of proving it at arbitration but had failed to do so – it had not led evidence to show that the representation made to it that it was compliant had led to it acting to its detriment – the representation in any event could not be imputed to complainant who had complained about being short-paid – application of estoppel would result in a situation contrary to law: it was inconceivable that bargaining council could be estopped on strength of such a certificate from prosecuting breaches of collective agreement

Bargaining council – collective agreement – compliance – certificate of compliance – status of certificate – certificate not conferring rights on holder – did not prevent bargaining council from taking action against employer even where certificate not withdrawn

Transnet Freight Rail v Transnet Bargaining Council and Others (Labour Court C644/2009 4 March 2011 31 pages (Steenkamp J))

Dismissal – misconduct – distinction between incapacity resulting from alcoholism and misconduct where employee not an alcoholic – employee, who worked in a safety critical position, arrived at work under the influence and was sent home – employee had almost a year earlier been given a serious written warning for same offence – employee not an alcoholic but had severe domestic difficulties – arbitrator setting aside dismissal and ordering that employee submit to rehabilitation – difference in duty of employer towards employee who is an alcoholic and one who did not suffer such incapacity – failing to apply sanction of dismissal had the result of being no punishment at all and rendered progressive discipline meaningless – finding that employee had merely been negligent in drinking to excess the previous night in conflict with general principles of law relating to negligence and culpability

Nitrophoska (Pty) ltd v CCMA and Others(Labour Court C109/2010 4 March 2011 13 pages (Steenkamp J))

Dismissal – disciplinary enquiry – nature of proceedings – the flexibility introduced into disciplinary proceedings by the Code of Good practice: Dismissal not always recognized by arbitrating commissioners – less formal approach particularly suitable where senior management employee involved in hearing – manager, having on more than one occasion conceded to superior that he had failed in his duties towards employer, was perfectly aware of what standard he was required to meet and how he had fallen short – he was aware that his misconduct had destroyed the trust relationship – not necessary that formal enquiry be held

General Domestic and Professional Employers Organisation v Registrar of Labour Relations (Labour Court J1620/2011 19 November 2010 2 pages (LaGrange R))

Employers’ organisation – cancellation of registration of – applicant applying for order suspending decision to cancel, pending an appeal – applicant had no automatic right to suspension – in exercise of court’s discretion to regulate its own process, cancellation suspended pending appeal

Issue 26 of 2011 deals with:

Global Outdoor Systems Limited v Du Toit & Others (Labour Court JR149/2010 26 November 2010 11 pages (Francis J))

Application to review and set aside jurisdictional ruling – jurisdiction to determine unfair dismissal dispute – written contract of employment to work at employer’s Nigerian subsidiary – clause in contract – any dispute arising out of agreement governed by Mauritian law

Employee referred unfair dismissal dispute to CCMA – CCMA did not have jurisdiction to entertain the dispute – employment contract drafted in such a way as to be more favourable towards employer when employee challenged employer on any issue

Not governed by Mauritian law – parties covered by South African law – commissioner decided that CCMA had jurisdiction to entertain the dispute – court ruled that Nigerian law applied – jurisdictional ruling reviewed and set aside

National Commissioner of Police & Another v Senior Superintendent Harri NO & Another (Labour Court C641/09 19 November 2010 18 pages(Steenkamp J))

Application to review decision of functionary of SAPS acting as chairperson of disciplinary enquiry in terms of s 158(1)(h) of the LRA, alternatively in terms of the PAJA – employee guilty of serious misconduct – theft – sanction of R500 and suspended dismissal for period of 6 months

Employer argued that sanction too lenient and unreasonable – question whether decision of chairperson constituted administrative action – state acting qua employer – functionary fulfilled duties in terms of legislation

Conduct of disciplinary hearings in workplace where employer is the state constitute administrative action – conduct of chairperson therefore qualified as administrative action – conduct was lawful, reasonable and procedurally fair – question whether chairperson’s decision reviewable at instance of employer under PAJA or LRA

Court held that chairperson correctly characterised misconduct as serious and as containing element of dishonesty – lenient sanction imposed was unreasonable - chairperson’s finding reviewed and set aside – court substituted chairperson’s sanction with that of dismissal

Piggot v Silvercross Helicopter Charters (Pty) Ltd (Labour Court C924/09 19 October 2010 14 pages (Steenkamp J))

Employee argued that dismissal based on employer’s operational reasons both substantively and procedurally unfair – employer filed application for provisional liquidation – application could have been made for stay of the proceedings

Employee informed in writing by employer that employment contract would be terminated owing to operational reasons – employer sent letter to employee without complying with requirements of s 189 of the LRA – later issued employee with notice in compliance with s 189(3) of the LRA

Two consultation meetings held – employee retrenched – employer failed to pay employee retrenchment amounts – onus on employer to show that employee’s dismissal for operational requirements fair – dismissal substantively unfair for a number of reasons – also procedurally unfair – employer failed to comply with requirements of s 189

Court held dismissal to be both substantively and procedurally unfair

Swissport (South Africa) (Pty) Ltd v SATAWU & Others (Labour Court C600/2010 30 November 2010 8 pages (Steenkamp J))

Judgment handed down on return day of a rule nisi – union and its members interdicted from calling for, or participating in, unprotected strike action – no strike ensued – employer no longer sought confirmation of rule nisi, but both parties were involved in argument over costs

Dispute concerned alleged unilateral change to terms and conditions of employment – union requested company to restore previous shift roster, in terms of s 64(4) of the LRA – employer failed to adhere to request – union issued employer with notice of intended strike action

Question whether intended strike protected in terms of the LRA – normal requirements for protected strike action as stipulated in s 64(1) of the LRA did not apply to a strike called where employer failed to comply with s 64(4) and (5) of the LRA – employer argued that union’s conduct had been unfair in calling strike action during 2010 FIFA World Cup

Offer proposed by union was a reasonable offer – employer’s application misconceived – based on incorrect understanding of s 64 of the LRA – rule nisi discharged – employer ordered to pay union’s costs

Issue 25 of 2011 deals with:

Pioneer Foods (Pty) Ltd t/a SASKO Milling and Baking (Duens Bakery) v CCMA and Others (Labour Court C2652010 11March 2011 (Steenkamp J))

Conciliation-arbitration – commissioner’s duty when conciliation fails to resolve matter – commissioner must immediately commence arbitration – absence of employer at con-arb proceedings – employer indicating however that it seriously wished to contest proceedings – although commissioner had to commence arbitration, should consider whether matter should not be postponed in order to allow employer to state its case

Department of Correctional Services v General Public Service Bargaining Council and Others (Labour Court P 28/2010 April 2011 (ShaiAJ))

Public service – grading of posts – applicant appointed as correctional services officer and expecting to be promoted after undergoing basic training in terms of Public Service Staff Code chap B1V and BV – unfortunately for applicant the upgrading provision had been abolished before she was appointed and she accordingly had no remedy

SATAWU obo Phakathi v Ghekko Services SA (Pty) Ltd and Others (Labour Court J1262/09 9 February 2011 (AC Basson J))

Contempt of court – status of award certified in terms of s 143 of the Labour Relations Act – whether that could be the basis of a contempt of court – award did not have the same status as an order in terms of s 158(1)(c) of the Labour Relations Act but nothing prevents a party from approaching the Labour Court for an order in terms of s 158(1)(c).

Prescription – application for s 413 certification – this amounts to a process whereby ‘creditor claimed payment of the debt’ as intended by s 15(1) of Prescription Act 68 of 1969 – as three years had elapsed, award had become prescribed

Gays Transport (Pty) Ltd v SATAWU and Another (Labour Court JS901/09 29January 2011(Molahlehi J))

Practice – proof of service – service of notice by fax –proof that notice faxed and production of fax transmission slip indicating that transmission successful no conclusive proof of receipt – evidence that party received other documents faxed to same number not sufficient to discharge duty to show that party did receive notification

Parliament of the RSA v NEHAWU obo 3 Members and Others (Labour Court C175/2010 26 May 2011 (Steenkamp J))

Referral to arbitration under s 74 of Labour Relations Act – dispute alleging unilateral changes to terms and conditions of employment – dispute actually concerning alleged failure to promote and not a unilateral change to terms and conditions of employment – true nature of dispute an unfair labour practice and CCMA accordingly did not have jurisdiction to arbitrate

Saficon Industrial Equipment (Pty) Ltd t/a Toyota Forklift v Metal & Engineering Industrial Bargaining Council and Others (Labour Court P645/09 13 April 2011(Mohlahlehi J))

Condonation – explanation for delay – not correct that condonation will not be refused only because there has been an unexplained delay or an inordinate delay

Scaw Wire and Strand, a division of Scaw Metals SA (Pty) Ltd v National Union of Metalworkers of SA and Others (Labour Court J32/2011 22 May 2011 (MolahlehiJ))

Strike – interdict to prevent –whether strike lawful – apparent demand that worker be disciplined in terms of company procedures – worker however already disciplined and sanctioned – for strike to be lawful demand had to be lawful – demand in present case not lawful

Balmer and Others v Reddam (Bedfordview) (Pty) Ltd (Labour Court J 03/200913 April 2011(BhoolaJ))

Condonation – for late filing of statement of case – applicants alleging that they lacked money and could not pay for legal assistance to file statement of claim – statement filed six months late – applicants were teachers who had rejected unconditional offer of reinstatement – applicants not producing evidence that they had sought assistance from legal aid clinics or from Legal Aid – condonation refused

Issue 24 of 2011 deals with:

Moloto v City of Cape Town (Labour Court C657/09 19 November 2010 13 pages (Francis J))

Alleged wrongful termination of contract – claim for damages in terms of s 77(3) of BCEA

Initially employed on fixed-term contract of employment – later varied to indefinite contract of employment – termination of indefinite contract – under common law, indefinite contract of employment endures indefinitely – terminable by either party on giving of reasonable notice – no termination without good cause

No need to employ common law provisions into contracts of employment since LRA includes necessary protection – specifically gives effect to constitutional right to fair labour practices and consequent right not to be unfairly dismissed

Where employer gives required notice of termination, contract is lawfully terminated – employee entitled to approach CCMA for appropriate relief

NEWU v The Minister of Labour & Others (Labour Court J2180/06 25 November 2010 43 pages (Francis J))

Appeal in terms of s 111(3) of the LRA against deregistration as trade union – union challenged finding of Registrar – also challenged constitutionality of ss 106(2A), 106(2B) and 111 of LRA, and clauses 18 to 21 of guidelines issued in terms of s 95(8) of LRA

Registrar obliged to follow provisions of ss 106(2A) and 106(2B) of LRA – no court order required where Registrar deregisters a trade union which has ceased to operate as a genuine trade union – Registrar’s powers wide, but Registrar still has to act within confines of the law – has to provide reasons for his decisions – Registrar a creature of statute

Union subscription funds allegedly misused for, inter alia, Lotto and unsecured loans – union had ceased to operate as a genuine trade union as envisaged in the LRA – instead operated for gain of individuals – appeal dismissed

SASBO v Standard Bank of South Africa (Labour Court J2298/10 12 November 2010 18 pages (Lagrange J))

Urgent application under s 189A(13) of the LRA – union sought order compelling employer to comply with s 189A

Timetable for consultations in line with collective agreement concluded between parties during 2006 – two meetings –second meeting constituted end of ten-day consultation period provided for in agreement – employer entitled to commence individual consultations with affected employees

Union failed to make claims in founding affidavit relating to demand or request for extension of timetable for consultation with union – union raised grievances concerning the process with the employer only a week after second meeting – if union believed process was flawed, it should have made this point more forcefully at the second meeting – should not have waited a week to put it in writing

Consultation process to date only partly met requirement of joint consensus on ways to avoid or minimise retrenchments – trite law that when employees are confronted with a fait accompli, subsequent consultations may be fatally flawed – order granted stipulating that further consultations had to take place

South African Football Association v Ramabulana NO & Others (Labour Court JR2175/09 17 November 2010 15 pages (Molahleli J))

Application to review and set aside arbitration award of commissioner – held that dismissal of employee substantively and procedurally unfair – 12 months’ compensation awarded

Disciplinary code of employer incorporated into terms of employee’s contract of employment – code confirmed procedure to follow in event of incapacity of employee – during employee’s final probationary month allegations of theft levelled against him

Probationary period extended – during period of extension employee publicly arrested by SAPS – contract of employment terminated on expiry of extended probationary period – employee dismissed for incompatibility

Evidence showed that dismissal of employee by employer was based on suspicion which was not investigated by the employer – employee was not afforded opportunity to present his side of the story – probation not a licence for treating and dismissing employees unfairly – dismissal of employee in present matter had nothing to do with probationary aspect of the relationship between the parties – review application dismissed

Issue 23 of 2011 deals with:

Dicks v South East Node (Pty) Ltd (LC J2131/2008 2 February 2011 (Lagrange J))

Practice – applications – supplementary affidavits – Rule 7 does not make provision for filing of supplementary affidavits in motion proceedings – whatever the circumstances in which court may admit supplementary affidavits, content of affidavit in which applicant attempted to amend his cause of action was such that he ought to have made a formal application for its admission.

Costs – attorney-own client costs sought against party’s attorney – whether attorney ought to have been joined as a party to the matter – in circumstances where attorney must have been aware of the order that was being sought no reason to join attorney as party to main litigation

Production Institute of Southern Africa (Pty) Ltd v CCMA and Others (LC JR 1974/09 13 January 2011 18 pages (Molahlehi J))

Jurisdiction – application for rescission – rescission filed out of time – court holding that even before considering rescission application commissioner ought to have satisfied himself that he had jurisdiction – no jurisdiction where application filed out of time and there had been no application for condonation

Uthungulu Municipality v Mathe and Others (LC D717/2007 14 January 2011 13 pages Cele J))

Review of decision of arbitrator – misconduct hearing decided on the facts

Ram Transport v SATAWU (LC J106/11 29 January 2011 7 pages Van Niekerk J))

Terms and conditions of employment – unilateral change to – employees of courier company striking over change in working hours – number of hours worked daily not altered, only starting and finishing times of shift altered – employees having no vested right to specific shift times – contracts of employment in question acknowledged necessity for flexible working hours – strike unprotected and unlawful

City of Cape Town v South African Local Government Bargaining Council and Others (LC C654/2009 12 January 2011 26 pages (Steenkamp J))

Referral to arbitration under s 74(4) of Labour Relations Act in respect of essential service employees – matter having been conciliated but remained unresolved – referral to conciliation had been on a list of demands and made no mention that it was in respect of both essential and non-essential service employees – objection to jurisdiction of bargaining council dismissed by arbitrator – court setting aside dismissal on basis that dispute referred differed from that conciliated

Referral to arbitration under s 74(4) of Labour Relations Act in respect of essential service employees – matter having been conciliated but remained unresolved – no indication that matter referred to conciliation involved essential service employees as well as non-essential service employees – an employer entitled in fairness to some kind of indication that the dispute that is being subjected to conciliation is one which also concerns essential services employees and that the dispute concerns a dispute that may be referred to compulsory arbitration in terms of section 74 of the LRA

Bargaining council – conciliation and arbitration - arbitrator found that s 139 of the Labour Relations Act, which requires a commissioner of the CCMA to complete an (essential service) arbitration (under the auspices of the CCMA) and issue an arbitration award within 30 days of the date of the certificate referred to in s 136(1) of the LRA, is not applicable to essential services arbitration held under the auspices of a bargaining council – court holding that time limits equally applicable to bargaining council

Dyasi v Onderstepoort Biological Products Ltd (LC J1780/10 16 November 2010 13 pages Lagrange J))

State corporation – disciplinary action against managing director – company incorporated under Onderstepoort Biological Products Act 19 of 1999 (OBPI Act) – board of company instituting disciplinary action – ministry opposing disciplinary action but board nonetheless proceeding – whether board had the power to institute disciplinary action where the managing director was appointed and could be dismissed by Minister – OBPI Act silent on power to institute disciplinary proceedings against managing director seemed to fall within business of company to be managed by board as incident of power to manage the company under articles of association – board also having duty to take action under s 5(1)(b)(i) and (c) of Public Finance Management Act

Meyer v Horizon Carpet Manufacturers CC and Others (LC C352/07 11 March 2011 12 pages Steenkamp J))

Close corporation – claim against – claim based on s 77(3) of Basic Conditions of Employment Act 75 of 1997 – whether Labour Court has jurisdiction – although court would not generally entertain dispute under Close Corporations Act but would where the claim under that Act was incidental to the claim under the Basic Conditions of Employment Act – legislature could not have intended that claimant should have to institute action in Labour Court as well as in another court

Taylor v ILC Independent Loss Consultants CC (Labour Court J 151/2010 4 March 2011 15 pages Bhoola J))

Retrenchment – employee refusing to participate in process of consensus-seeking – s 189(2) of labour Relations Act imposing duty not only on employer to engage in consensus-seeking – employer could not be blamed for employee’s failure to participate and consequences thereof

Retrenchment – proper test to be applied to determine whether there was a need to retrench – sufficient justification for dismissal to prevent further decline in business of employer

Issue 22 of 2011 deals with:

Biggar v City of Johannesburg Emergency Metro Services (Labour Court JS232/2009 10 February 2011 14 pages Lagrange J))

Unfair discrimination claim under s 6(1) and (3) of the Employment Equity Act – fireman’s family subjected to racial abuse in staff housing complex – employer not doing sufficient to prevent ongoing abuse – provoked and assaulted by his colleagues, applicant retaliated, for which he was subjected to disciplinary enquiry at which he was given a warning – no action taken against provocateurs – Employment Equity Act applicable even though conduct had taken place at common residential premises – applicant subjected to unfair discrimination – awarded two months remuneration for unfair treatment and employer ordered to attempt to transfer applicant to different branch – employer also ordered to investigate any other complaints of alleged racial harassment

Allpass v Mooikloof Estates (Pty) Ltd (Labour Court JS 178/09 16 February 2011 36 pages Bhoola J))

Unfair dismissal on grounds of HIV status – applicant an equestrian manager who was asked at his job interview about his health to which he replied that he was in good health – ten days after appointment he disclosed his HIV status which led to his dismissal on the grounds that he had lied in his interview – evidence establishing that applicant was in good health despite suffering from asthma, deep vein thrombosis and HIV – applicant having made out a prima facie case that the dismissal was on a prohibited ground, namely his HIV status and employer bore onus of establishing that dismissal was justified based on an inherent job requirement – employer failing to discharge this onus – damages for loss of dignity and privacy accommodated by punitive element of damages envisaged in s 194(3) of the Labour Relations Act – applicant awarded 12 months remuneration as damages

Dismissal – action for damages for loss of dignity arising from conduct post-dismissal – such action to be brought as a delictual action in civil courts

Du Plessis v CCMA and Others (Labour Court JR2676/2008 15 February 2011 6 pages Lagrange J))

Dismissal for incapacity – applicant injured in an accident whilst off-duty and unable thereafter to perform his duties as a boilermaker – enquiry held into incapacity during which applicant agreed that he was unable to resume his duties – applicant having instituted claim under insurance policy for disability benefits for which he needed to be disabled in order to claim – insurance claim dismissed by insurer and applicant then attempted to have the matter referred to the CCMA, seven months late – commissioner dismissed the condonation application – on review, court upheld commissioner’s decision holding that where applicant had considered himself unable to resume duties there were no prospects of success in challenging a finding to that effect by the incapacity hearing

Randles v Chemical Specialities Ltd (Labour Court D286/10 1 February 2011 28 pages AC Basson J))

Whistleblowers – effect of Protected Disclosures Act 26 of 2000 – onus and duty to begin – urgent application to interdict employer from proceeding with disciplinary action pending adjudication of dispute before CCMA or Labour Court – applicant reporting to JSE that public company involved in contraventions of Companies Act; inappropriate use of company funds; unauthorised increase in directors earnings; failure of directors to disclose financial interests; inappropriate transfer of shares; and double cession of debtors’ book – applicant the company’s legal advisor and allegation that disclosures made to him with the object of and in the course of obtaining legal advice as contemplated by s 5(b) of Protected Disclosures Act – party relying on a statute bears onus of bringing himself within the four corners of the Act but legislature would not place onus on whistleblower to prove a negative as in s 5(b)

Nehawu and Others v Vanderbijlpark Society for the Aged (Labour Court JS 540/05 17 February 2011 11 pages Lagrange J))

Condonation – for late filing of referral to Labour Court – referral three months late – applicant relying on fact that it was a very large organisation and that lengthy process had to take place within organisation before mater could be referred to union’s attorneys – some aspects of delay not explained – scale of organisation could not serve as justification for delays – reasonable to expect that larger organisations ought to be able to see to it that they were organised in such a way to deal with disputes in systematic manner to ensure they did not fall foul of time limits in Labour Relations Act – this should go without saying where handling such disputes was core function of organisation

Parliament of the RSA v NEHAWU obo 3 Members and Others (Labour Court C175/10 26 May 2011 7 pages Steenkamp J))

CCMA – jurisdiction – dispute whether it was one about alleged unilateral change to terms and conditions of employment or an alleged unfair labour practice in relation to demotion – arbitrator ruled that matter was about a unilateral change to terms and conditions of employment and CCMA had jurisdiction – complaint by employees was that their posts downgraded in restructuring and that they had been demoted – they sought upgrading of their positions and appropriate remuneration – court ruling that true nature of dispute an alleged unfair labour practice and CCMA did not have jurisdiction

City of Cape Town v SAMWU obo Ncanane and Others (Labour Court C490/09 4 February 2011 22 pages (AC Basson J))

Dismissal – for dishonesty – off-duty conduct – employee found guilty of gross dishonesty in having obtained a false driver’s licence nine years earlier and was dismissed – arbitrator setting aside dismissal as being substantively unfair and lesser sentence than dismissal ought to have been imposed – employee had produced false Namibian driver’s licence to SA authorities for conversion to SA licence – employee held senior management position managing contracts for employer – test ultimately whether arbitrator’s decision one that no reasonable arbitrator could have made – off-duty conduct could lead to dismissal – effect of conduct on the trust relationship with employer of cardinal importance – employer entitled to require the employee to be beyond reproach – employee guilty of gross dishonesty that contained an element of corruption and she showed no remorse for her conduct – arbitrator’s award set aside

Issue 21 of 2011 deals with:

Jackson v Road Traffic Management Corporation & Others (Labour Court J2127/10 10 November 2010 12 pages (Molahlehi J))

Employee suspended – claimed unlawful suspension since period of suspension not extended by employer within allotted 60 days – employee apprised of his rights only when preparing for disciplinary hearing

Employer alleged that it was not bound by Public Service SMS handbook, which formed part of employment contract and was binding on both parties – disciplinary hearing postponed for 60 days – employer had therefore allegedly extended original period

Employee demanded reinstatement – employer unable to respond since second respondent not available – insisted it was bound by its own disciplinary code – employee not employed in terms of PSA – alternative remedy available to employee

Court weighed sufficiency of evidence – applicability of SMS handbook – employee’s rights with regard to suspension and extension of suspension – employee supplied reasonable and acceptable explanation for late lodgement

Intention to be bound by SMS handbook clear – case based on breach of contract, not unlawful suspension – reinstatement ordered

Read Summary

Minister of Safety and Security & Another v Govender (Labour Court JS164/03 16 November 2010 11 pages (Lagrange J))

Employee unsuccessfully applied for certain posts – claimed to be unsuccessful because employer had failed to adhere to its Employment Equity Plan – claimed unfairly discriminated against on various grounds in terms of s 6 of the EEA – also claimed that failure to promote him amounted to unfair labour practice

Employee did not comply with compliance mechanisms of Chapter V of the EEA – no conciliation took place – certificate of outcome indicated that statutory time period of 30 days for conciliating the dispute had expired – certificate of non-resolution issued

Labour Court did not have jurisdiction – all other special pleas dismissed – ongoing relationship between parties and referral not mala fide or frivolous

Setcom (Pty) Ltd v Dos Santos & Others (Labour Court JR1864/09 15 December 2010 14 pages (Lagrange J))

Application for review and setting aside of arbitration award in which dismissal ruled both substantively and procedurally unfair

Employee suspended on full pay – received letter from employer’s attorneys, informing her that employer would be uplifting suspension – required to return to work – refused to do so since believed had been dismissed – dismissal not supported by evidence

Employer’s emails to employee and other staff members left no doubt in reasonable person’s mind that employer had terminated employment relationship – employer not liable to pay compensation if employee refuses employer’s offer

Employer attempted to disguise actions to avoid their being categorised as unfair dismissal – review application dismissed

Issue 20 of 2011 deals with:

Imperial Bank Ltd v CCMA and Others (Labour Court JR 1942/09 10 February 2011 10 pages, (Molahlehi J))

Dismissal – for poor work performance – employee having been given period of three months in which to improve his performance – court holding on review that period of three months insufficient – dismissal unfair and reinstatement ordered

Creative Wood Design CC v Adjodha and Others (Labour Court D681/07 18 February 2011 10 pages (Shai AJ))

Arbitration – evidence – assessment of evidence – dismissal for being absent from work – arbitrator setting aside award – court holding on review that arbitrator had failed to take into account all the evidence including contradictions between employee’s evidence at disciplinary hearing and at arbitration

Mngadi v Mondi Business Papers (Labour Court D 813/07 18 February 2011 10 pages (Shai AJ))

Application for condonation – Referral of dispute to labour court – time limits – calculation of – time starts to run after issuing of the certificate by the council or commission or the expiry of 30 days since the council or commission received the referral

Booysen Bore Drilling (Pty) Ltd v National Union of Mineworkers and Another (Labour Appeal Court CA 11/08 15 March 2011 7 pages (Waglay DJP))

Application for condonation for late referral of dispute to labour court – requirements for – application for condonation merely informed respondent that it would apply for a date for the hearing of the application – it did not call upon respondent to inform them or the registrar that if it intended to oppose the application it needed to file an opposing affidavit – application defective and respondent entitled to sit back and await the applicant’s next move

Chetty v Toyota SA (Pty) Ltd and Others (Labour Court D 2243/06 18 February 2011 12 pages (Shai AJ))

Dismissal – Fairness of – Inconsistent application of disciplinary action – employee dismissed for using workplace computer to distribute racist document – arbitrator failing to take any account of employee’s contention that in two previous cases employer had not dismissed employees for same offence – arbitrator’s award set aside

Mahlalela v Office of the Pension Funds Adjudicator (Labour Court J 283/11 23 February 2011 12 pages (Lagrange J))

Employment contract – common law contractual obligations – whether there was a common law contractual duty on an employer to act fairly in its dealings with employees – no such duty at common law – in absence of a specific provision in contract of employment employer did not owe employee contractual duty to act fairly

Ekurhuleni Metropolitan Municipality v SAMWU and Others (Labour Court J 793/10 18 February 2011 12 pages (Lagrange J))

Interdict – confirmation of – interdict granted to prevent essential service workers from going on strike and to ensure that workers participating in strike stayed within bounds of non-violent and non-destructive behaviour – by the time matter came before court strike was over and conduct complained of had ceased – improper to bind respondents for a period that was indefinite and potentially unlimited – rule discharged

National Field Marketing (Pty) Ltd v Mngezana NO and Others (Labour Court JR 2802/09 4 February 2011 9 pages (Lagrange J))

Disciplinary hearing – evidence – assessment of – arbitrator having set out his evaluation of the evidence in a few terse paragraphs – decision based entirely on credibility findings – evidence of employer’s witnesses rejected merely because of anomaly between evidence of two witnesses – no support offered for conclusions drawn – no basis for adverse credibility findings –award set aside
 

 

Issue of SILCS published 28 July 2011: Issue 19 of 2011 deals with:

NUMSA obo Hlongwane v Unispan Manufacturing (Labour Court JS 09/09 25 May 2011 (Molahleli J))

Dismissal – participation in unlawful strike – applicants embarking on go-slow – selective re-employment of employees who had been dismissed – allegation of inconsistent application of disciplinary action – once this issue raised duty on employer to justify differentiation in disciplinary action – employer leading no evidence – dismissals unfair

Dismissal – participation in unprotected strike – applicants embarking on go-slow – ultimatum given to applicants at 12.38 advising them that they had until 17h00 to abandon go-slow – union received ultimatum at 15.04 – purpose of an ultimatum not only to warn employees of possible dismissal but also to persuade them to cease their unlawful conduct – insufficient time given and ultimatum unfair – dismissals substantively and procedurally unfair

SAMWU and Another v Emalahleni Municipality and Others (Labour Court JR 2447/08 25 March 2011 (Lagrange J))

Non-joinder – where an arbitrator faced with a situation in which joinder is clearly required he should not wait until the end of proceedings and then use this to non-suit a party, unless the party refuses to join the interested party – second applicant a lay person who would not necessarily have been aware of the requirement of joining party – misconduct by arbitrator – award set aside

Waiver – participation in second round of interviews after having been overlooked in first round – no evidentiary basis laid for waiver – in order to infer abandonment of a right to pursue a course of action, act of party in question must be an unequivocal one – fact that he applied for re-advertised post carried no necessary implication that he was acting contrary to his contention that he was unfairly not appointed the first time he applied – arbitrator applying wrong test and award reviewable

SA Transport and Allied Workers Union v ADT Security (Pty) Ltd (Labour Appeal Court JA 48/08 26 May 2011 (Davis JA))

Appeal – on issue that is not a live issue – appeal against grant of urgent application to prevent a gathering/march/picket on a specific day – no costs order made – day in question having passed – issue moot – appeal dismissed

Ngaka Modiri Molema District Municipality v Ramphele (Labour Court J 349/2011 15 March 2011, (Molahlehi J))

Execution – writ of execution based on order for reinstatement with full salary and benefits, alternatively compensation for the balance of fixed term contract – writ included amounts which employee would have received by way of bonuses – amount of writ must be ascertainable from the order – as the computation of bonuses would have required further evidence, the writ was invalid and was set aside

Silplat (Pty) Ltd v CCMA and others (Labour Court C206/2006 21 January 2011 (Steenkamp J))

SILCS 2011:19

Application for condonation – Excessive delay in filing notice in terms of rule 7A(8) and record of proceedings – Two sets of attorneys involved in delay – court finding gross negligence, incompetence and gross dilatoriness – unlikely that applicant unaware of the true situation and was complicit in delays – application for condonation dismissed

DG, Office of the Premier, Western Cape and Another v SAMA obo Broens and Others (Labour Court C 420/2007 26 November 2010 (Steenkamp J))

Public servant – termination of services – deeming provision in s 17(5)(a)(i) of Public Service Act in respect of employee absent for more than one month – provision intended to allow employer to terminate services of deserters and to be reserved only for the ‘very clearest cases’ – medical doctor absent from work under treatment by a psychiatrist for depression, anxiety and a social phobia – no evidence that doctor absent without permission

Reinstatement – powers of arbitrator to order that employee be employed in a different position to that held before unfair termination – employee a medical doctor suffering from psychiatric disorder – psychiatrist recommending that employee be employed in a non-clinical position – purposive interpretation of Labour Relations Act permitting this as
 

 

Issue of SILCS published 26 July 2011: Issue 18 of 2011 deals with:

Fakude v Spoornet & Others (Labour Court JR1327/06, 9 December 2010 (Molahlehi J)

Application for review and setting aside of arbitration award – constructive dismissal

Employee requested to relocate as alternative to retrenchment – agreed to relocation, but claimed coercion – continued employment intolerable – working conditions changed

Principles governing constructive dismissal – determine whether resignation induced by conduct of employer

Employee failed to show that employer deliberately created adverse circumstances, and that resignation resulted from that source – unhappy with transfer – review application dismissed

Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others (Labour Appeal Court JA38/09, 26 November 2010(D Van Zyl AJA) (Waglay DJP & Tlaletsi JA concurred))

Breach of safety rules – unfair dismissal dispute – commissioner ruled that dismissals substantively fair – unfair sanction – previous ruling reversed

Function of judicial review – reasonableness of commissioner’s decision

Employees’ challenge in review proceedings directed at the commissioner’s conclusion with regard to factual issues

LAC satisfied that commissioner’s conclusion that employees guilty of misconduct one that reasonable decision-maker could have reached – whether or not sanction imposed by employer was fair is a value judgment

Commissioner required to make decision on basis of own sense of fairness – objective approach – appeal upheld and commissioner’s award restored

Superand Superspar v Retail & Allied Workers Union obo Khoza & Others (Labour Court JR2786/08, 8 December 2010 (Francis J))

Application to review and set aside arbitration award – dismissal substantively unfair – sanction too severe – employee guilty of misconduct, but sanction of dismissal inappropriate and unfair under circumstances

Reasonable employer test not part of SA law – could not be reinstated – commissioner considered all relevant factors – balanced and impartial assessment

Sanction of dismissal not appropriate – finding one that reasonable decision-maker could have reached – review application dismissed
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Issue 4 of 2012 deals with: