2024 SALLR Powerpoint

product and services development

• accredited by IPM (Institute of People Management) of SALLR as a learning event

• continuing professional development (CPD) recognition

• IPM certificate (if required)

• -no extra costs

• 8 CPD points

• accredited by SABPP (SA Board for People Practices) of SALLR as a learning event

• continuing professional development (CPD) recognition

• SABPP certificate (if required) - no extra costs

• 8 CPD points

• accredited by APSO (Federation of African Professional Staffing Organisations) of SALLR as a learning event

• continuing professional development (CPD) recognition

• APSO certificate (if required)

- no extra costs

• 8 CPD points

obtain all the required CPD points by compiling a portfolio of evidence based on the contents of the SALLR (cont)

point earnings

1. 1 CPD point for every 1 (notional) hour of learning

2. the compilation and conducting of an audit at the workplace to determine the compliance level with the latest developments identified during the seminar

3. the compilation of an action plan, subsequent to obtaining the results of the aforesaid audit, in order to effect the required changes at the workplace, in line with the latest developments identified during the seminar

4. the implementation of the action plan

5. the content of the seminar workbook can be utilised to develop in-house presentations

6. the utilisation of the said presentations to bring the latest developments identified during the seminar to the attention of the different organisational levels within the workplace

7. the principles governing the latest developments identified during the seminar may be utilised to develop case studies to be incorporated into training sessions

8. the time invested by preparing a portfolio of evidence

further CPD points considerations

• apart from SABPP, IPM or APSO, CPD points to be obtained from other professional bodies where delegates are registered

• BBBEE skills development scorecard points in categories F and G

• SALLR costs is expenditure for SETA reporting purposes

• SALLR costs to be taken into account as annual training spend

Dual Advantages for Delegates Attending the SALLR/CCMA Seminar

This seminar falls under Category F of the BBBEE Skills Development Element Matrix, which deals with Informal External Training.

What your Rating Agency may require as evidence of your attendance at the seminar?

Delegates must meet the definition of a Black Person

Invoice Proof of payment

CPD Certificate (IPM, SABPP or APSO)

What your Rating Agency may require as evidence of the training you have conducted ?

The employees must meet the definition of a Black Person

An attendance register of employees attending the training

Time spent preparing and conducting the training

The monthly salary of the staff member preparing and conducting the training

Further B-BBEE Advantages for Delegates Attending the SALLR/CCMA Seminar

The training conducted by the delegate, who makes use of the SALLR/CCMA material, will fall under Category G Informal Internal Training. This training must be conducted to other employees of the organisation.

published judgments

slip and trip issues

• those issues that could easily lead to human resources, employee relations and labour law accidents...

seminar source material

arbitration awards and/or rulings and judgments

• various selected bargaining councils

• CCMA

• labour court

• labour appeal court

• high court

• supreme court of appeal

• constitutional court

§ Constitution of the Republic of South Africa 108 of 1996

§ Common Law

§ Labour Relations Act 66 of 1995

§ Basic Conditions of Employment Act 75 of 1997

§ Employment Equity Act 55 of 1998

§ Promotion of Equality and Prevention of Unfair Discrimination Act 40 of 2000

§ Prescription Act 68 of 1993

§ Protected Disclosures Act 26 of 2000

§ Companies Act 71 of 2008

§ Compensation for Occupational Injuries and Diseases Act 130 of 1993

§ Competition Act 89 of 1998

§ Legislation: 1 July 2023 to 20 June 2024

§ Unemployment Insurance Act 63 of 2001

§ Pension Funds Act 24 of 1956

§ National Minimum Wage Act 9 of 2018

§ Local Government: Municipal Systems Act 32 of 2000

§ CCMA

§ South African Labour Law Reports (SALLR)

§ Van Zyl, Rudd Annual Labour Law Reviews

§ Van Zyl, Rudd eLibraries

§ The Quantum Yearbook

§ table of cases

§ list of authorities

§ newsletters

§ ongoing research

• 1. arbitration awards and/or rulings and judgments

• various selected bargaining councils

• CCMA

• labour court

• labour appeal court

• high court

• supreme court of appeal

• constitutional court

seminar outline

§ content pages (i to xi )

§ workbook pages 1 to 5

SALLR earnings guidelines

earnings sector categorisation

corporate sector – employers who subscribe and report for survey purposes

(less than 25% of the entire workforce)

formal sector – government, parastatals, private businesses or individuals registered for either income tax or VAT

informal sector – businesses or individuals not so registered

non-corporate sector – excludes corporate sector, includes formal and informal sector

LQ, Med and UQ

• Lower quartile

• 25% of salaries are lower than this Q1

• 75% of salaries are higher Q2 + Q3+ Q4

• Median

• 50% of salaries are lower Q1 + Q2

• 50% of salaries are higher Q3 + Q4

• Upper quartile

• 75% of salaries are lower Q1 + Q2 + Q3

• 25% of salaries are higher Q4

OCCUPATIONAL

LEVELS

APPLICATION GUIDELINES

Top Management/ Executives determines overall strategy and objectives

Senior Management implements and manages business plans, etc to ensure achievement of overall strategy and objectives

Professionally Qualified & experienced specialists/mid-management formulates and implements departmental / team plans to support business plans

Skilled Technical & Academically Qualified/ Junior Management/ Supervisors/ Foremen/ Superintendents applies broad knowledge of products, techniques and processes

Semi-Skilled & discretionary decision-making accountable for direct product, process or service quality

Unskilled & defined decision-making undertake tasks to accomplish product, process or service

EEA 9 FORM

OCCUPATIONAL LEVELS

Management/ Executives

Skilled Technical & Academically Qualified/ Junior Management/ Supervisors/ Foremen/ Superintendents

Paterson Entire Working Population of SA /FSA

STATSSA POPULATION SURVEY EARNINGS AS PERCENTAGE OF CORPORATE EARNINGS

SALLR delegates’ requested topics

breathalyser test results versus laboratory test results workbook

alcohol and drug policies and testing

4.1.1.1 Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (2023) 34 SALLR 367 (LC)

workbook p 54

employer adopted a zero tolerance policy to alcohol and drugs

charge: having alcohol / drugs in blood breathalyser tests

Ÿ Alcoblow Rapid green: positive

Ÿ Lion Alcometer 500 0.013% blood test

Ÿ plasma ethanol test

– cannot test for alcohol below 0.010g/dl

– in casu: no alcohol below mark

Ø negative result for medical purpose

charge: intoxication (under the influence of alcohol) affects ability to perform

Transnet Freight Rail v Transnet

Bargaining Council (2011) 22 SALLR 144 (LC); Tanker Services v Magudulela [1997] 12 BLLR 1552 (LAC)

(workbook p 180)

4.1.1.1 Samancor (cont)

workbook p 54

alcohol and drug policies and testing

employer adopted a zero tolerance policy to alcohol and drugs (cont)

considerations

Ÿ breathalyser tests could product false positive results

Ÿ if breathalyser test results are different to blood test results

– employer unable to prove alcohol presence between 0.000 and 0.009g/dl

– employer unable to prove breach of zero tolerance rule

Ÿ s65 of the National Road Traffic Act 93 of 1998

– 0.05 grams per 100 millilitres of blood

+ mens rea + wrongfulness

misconduct

WORKPLACE RULE

BREACH

items 1 to 5 and 7 of schedule 8

conduct participation in unprotected strike collective withdrawal of labour

misconduct ü

- mens rea + wrongfulness

incapacity

poor work performance ill-health/injury

items 8 and 9 of schedule 8

items 6 and 7 of schedule 8

misconduct/incapacity non-simpliciter

items 10 and 11 of schedule 8

Ill-health injury ü

poor work performance X

McGregor v Public Health and Social Development Sectoral

Bargaining Council (2021) 32 SALLR 33 (CC)

no automatic right to a remedy

McGregor v Public Health and Social Development Sectoral Bargaining Council (2021) 32 SALLR 33 (CC)

Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC)

• every employee has right not to be unfairly dismissed ito s185(a)

• but infringement of right does not automatically confirm a right to remedy – specifically, an award of compensation is never guaranteed generally, compensation is only applicable if reinstatement/re-employment precluded

(SARS v CCMA 2017 (1) SA 549 (CC)

reinstatement order does not in itself reinstate employees

Kubeka v Ni-Da Transport (2021) 32 SALLR 14 (LAC); (2021) 42 ILJ 499 (LAC)

followed NUM obo Fohlisa v Hendor (2017) 28 SALLR 2 (CC); (2017) 38 ILJ 1560 (CC)

unfairly dismissed employee: contract terminated by dismissal

effect of reinstatement order?

does not restore contract: no automatic claim to back pay/future pay

directs employee to tender service and employer to accept (employer reinstates and not order)

employee tenders and employer refuses no restoration of contract

contempt proceedings (order ad factum praestandum)

employee fails to tender contract not restored no claim to back pay/future pay

calculation of back payment: employment during back-pay period

Moroveke v Talane NO (2021) 32 SALLR 34 (CC)

dismissal substantively unfair

reinstatement

take into account period of unemployment

reinstatement order should not enrich or impoverish employee but restore relationship

• Toyota SA Motors v CCMA (2016) 37 ILJ 313 (CC)

• Mediterranean Textile Mills v SACTWU (2012) 33 ILJ 160 (LAC)

• Sibiya v SAPS (2022) 33 SALLR 28 (LAC)

SALLR 2022 workbook p 328

back pay

• make good the employee’s loss and not punish employer

• difference between amount would have earned and indeed earned during unemployment

• Davids v Boland Rugby [2011] ZALCCT 69

• Le Monde Luggage v Dunn NO (2007) 28 ILJ 2238 (LAC)

difference between compensation (s193(1)(c); s194(1)) and back pay

unfair dismissal

Compensation

(workbook p 109)

capping ito s194(1)

two different remedies:

Booi v Amathole District

Municipality (2022) 32

SALLR 51 (CC) back pay

no capping ito s194(1) principles

• not from date earlier than dismissal date

• period between dismissal and trial (arbitration) must be taken into account

• whether employee was unemployed and earned relevant

• must always be just and equitable

Union for Police and Security Corrections

Organisation v SA Custodial Management (2021) 42 ILJ 2371 (CC)

McGregor v PHSDBC (2021) 32 SALLR 33 (CC)

separate procedural and substantive fairness considerations when determining compensation (Liebowitz v Fernandes (2002) 23 ILJ 278 (LAC))

substantive fairness

• consider nature and extent of misconduct

- reason for dismissal plays important role (e g continuing late coming v sexual harassment)

• consider attitude of employee

• if serious, notwithstanding procedural unfairness:

- should not award compensation or limit it substantially

procedural fairness

• degree of deviation important

- insignificant, small potential influence

- significant, greater potential influence

the reasonable employer debate settled

Sidumo and Congress of SA Trade Unions v Rustenburg Platinum Mines Ltd, the CCMA and Moropa NO (2008) 19 SALLR 35 (CC); 2008(2) SA24(CC)

reasonable decision-maker

test requirements

pre-Sidumo scenario

employer dismisses

contractual rights and obligations

not an enquiry de novo

review of employer’s decision

‘tools’

statutory rights and obligation

CCMA arbitrates

reasonable employer test

employer’s view of fairness prevails

post-Sidumo scenario

CCMA arbitrates reasonable decision-maker labour court reviews grounds s145 and s158(1)(g): LRA test

2) reasonable decisionmaker administrative function proper exercise of powers

commissioner’s view of fairness prevails enquiry de novo

1) proper exercising of powers

short reasonable decision-maker test

Gold Fields Mining (SA) (Pty) Ltd (Kloof Gold Mine) v CCMA (2013) 24 SALLR 41 (LAC); (2014) 35 ILJ 943 (LAC); [2014] 1 BLLR 30 (LAC) workbook p 114

a reviewing court must ascertain:

• whether the arbitrator considered the principal issue before him/her

• evaluated the facts presented at the hearing

• came to a conclusion that is reasonable

reasonable decision-maker test

Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA (2013) 24 SALLR 41 (LAC); (2014) 35 ILJ 943 (LAC); [2014] 1 BLLR 30 (LAC)

questions to be avoided

questions to be asked

• piecemeal approach to factors to determine unreasonableness to be avoided

• failure to mention a material fact in the award?

• does award fail to deal with an issue that has a material bearing on the dispute?

• failure to evaluate or consider facts presented at arbitration?

• were parties given full opportunity to have their say wrt the dispute?

• did arbitrator correctly identify dispute required to be arbitrated?

• did arbitrator understand nature of dispute required to be arbitrated?

• did arbitrator deal with the substantive merits of the dispute?

• is the decision one that another arbitrator could reasonably arrive at based on the evidence?

reasonable decision-maker test requirements

Head of Department of Education v Mofokeng and Others (2014) 25 SALLR 82 (LAC); [2015] 1 BLLR 50 (LAC)

referred to with approval: Palluci Home Depot v Herskowitz (2015) 36 ILJ 1511 (LAC)

Makuleni v Standard Bank (2023) 34 SALLR 71 (LAC); (2023) 44 ILJ 1005 (LAC); [2023] 4 BLLR 283 (LAC

workbook pp 57, 72

failure to apply mind to material issues: usually amounts to irregularity

whether irregularity will result in setting aside of award: in addition, must reveal misconception of the true enquiry or resulted in an unreasonable action

reasonable decision-maker test requirements (cont)

Head of Department of Education v Mofokeng and Others (cont)

flaws in reasoning, failure to apply mind, reliance on irrelevant factors, ignoring material factors not enough to vitiate award: must be assessed wrt:

• whether undertaken wrong enquiry or

• undertaken enquiry in the wrong manner or

• arrived at unreasonable result

è singularly or cumulatively resulting in a decision that no reasonable decision -maker could reach

short test: determine whether error or irregularity:

• materiality in respect of the result

reasonable decision-maker test requirements (cont)

Head of Department of Education v Mofokeng and Others (cont)

5.

• whether material in respect of the results, wrt the following questions:

- did it have a distorting effect on arbitrator’s conception of the enquiry to be undertaken?

- did it have a distorting effect on the delimitation of the issues?

- did it have a distorting effect on the ultimate outcome?

reasonable decision-maker test requirements (cont)

Head of Department of Education v Mofokeng and Others (cont)

material error or irregularity points to at least prima facie unreasonable result: factors relevant to determine if unreasonableness exists:

• general nature of the decision in issue

• range of relevant factors informing the decision

• nature of the competing interests impacted by the decision

• whether a reasonable equilibrium reached ito the objects of the LRA

reasonable

decision-maker test requirements (cont)

Head of Department of Education v Mofokeng and Others (cont)

provided the right question was asked and answered, a wrong answer will not necessarily be unreasonable: short test –whether irregularity or error material to the determination of the dispute did not result in a fair trial of the issues, leading to award being set aside on that ground alone

• arbitrator must have diverted from the correct path in conducting the arbitration and as a result failed to address the issue(s) raised for determination

DISMISSALS IN TERMS OF s186(1)(b) OF THE LRA: REVIEW TEST TO BE USED

Jonsson Uniform Solutions (Pty) Ltd v Brown and Others (DA10/2012) [2014] ZALCJHB 32 (13 February 2014) ê

the dispute to be resolved, determines the test to be applied:

• legal/jurisdictional findings challenged: correctness test

SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v SA Rugby Players Union and Another [2008] 9 BLLR 845 (LAC)

• factual findings of the arbitrator challenged: reasonable decision-maker test

Sidumo and COSATU v Rustenburg Platinum Mines Ltd, the CCMA and Moropa NO (2008) 19 SALLR 35 (CC); 2008 (2) SA 24 (CC)

Jonsson Uniform Solutions (Pty) Ltd v Brown and Others (DA10/2012) [2014] ZALCJHB 32 (13 February 2014)

DISMISSALS IN TERMS OF

s186(1)(b) OF THE LRA:

REVIEW

TEST TO BE USED

• legal issues inextricably linked to the facts: reasonable decision-maker test

applied: Pikitup Johannesburg (Soc) Ltd v Muguto and Others (2020) (2019) 30

SALLR 186 (LC)

requirements relating to a charge sheet utilised at a disciplinary enquiry and subsequently at arbitration

workbook p 68

original approach:

4.1.1.3 requirements relating to a charge sheet

workbook p 68

substantive fairness

the charge sheet is required to contain the charge(s)/allegation(s) that employee is required to answer - e. g. intent is an element of theft, fraud, dishonesty, and if not proven employee not guilty (negligence not sufficient)

National Commissioner, SAPS v Meyers [2012] 7 BLLR 688 (LAC)

substantive fairness (cont) true enquiry: determining, in a manner not unduly formalistic, whether dismissal fair wrt allegations against employee and standard of conduct required

Mashigo v SAPS [2018] 10 BLLR 943 (LAC) principle: disciplinary sanction may be imposed if: - employee knew or reasonably should have known the workplace standard/rule - workplace standard/rule had been contravened - no significant prejudice flawed from incorrect characterisation

Woolworths v CCMA (2011) 32 ILJ 2455 (LAC) followed in Mashigo (supra) and referred to in SA Police Service v Magwaxaza and Others (2019) 30 SALLR 42 (LAC); (2020) 4 ILJ 408 (LAC) 4.1.1.3 charge sheet (cont) workbook p 68

4.1.1.3 charge sheet (cont)

workbook p 68 substantive fairness (cont)

what is enough for the employee to be able to respond?

employee informed that disciplinary transgression arose:

- on a certain date, time and place

- he allegedly acted wrongfully or - in breach of applicable standard/rule

Woolworths (LAC) (supra): followed in Mashigo (LAC) (supra) and SA Police Service (LAC) (supra)

4.1.1.3 charge sheet (cont)

workbook p 68 substantive fairness (cont)

competent verdict:

• enquiry is not like a criminal trial where guilt is to be proven in respect of the charge the employee faces

• true enquiry – Mashigo (supra)

• too formalistic to require guilt in respect of the charge (and elements) formulated by the employer

• competent verdict permitted:

- no requirement to be mentioned in charge sheet

- in absence of prejudice, employee may be found guilty of competent verdict (another charge not mentioned)

EOH Abantu (Pty) Ltd v CCMA, Khumalo and Danney (2019) 40 ILJ 2477 (LAC); (2019) 30 SALLR 43 (LAC)

approved in SA Police Service (LAC) (supra)

4.1.1.3 charge sheet (cont)

workbook p 68

EOH Abantu (Pty) Ltd v CCMA, Khumalo and Danney (LAC) (supra)

• the employer ordinarily cannot change the charge or add new charges, after the commencement of the hearing if it is prejudicial to do so

Transport and General Workers Union and Another v Interstate Bus Lines (Pty) Ltd (1988) 9 ILJ 877 (IC)

• must not adopt too formalistic or technical approach – categorisation by employer is irrelevant

Durban Confectionary Works t/a Beacon Sweets v Majangaza (1993) 14 ILJ 663 (LAC)

workbook p 68

substantive fairness (cont)

EOH Abantu (Pty) Ltd v CCMA, Khumalo and Danney (LAC) (supra) (cont)

• followed principle states supra

• no requirement that competent verdict to be mentioned in charge sheet: provided:

- employee not prejudiced

• prejudice is present if:

- employee would have conducted defence differently or

- would have had other defences

S v Mwali 1992 (2) SACR 281 (A)

LAW OF EVIDENCE AMENDMENT ACT 45 OF 1998

interpretation formula

National Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) previous SALLR seminar workbooks: pre-trial minute, strike ballot guidelines issued, LRA, Gatherings Act, protest action, separation agreement, benefits dispute, advisory arbitration award, secondary strikes, BCEA, picketing provisions, restraint of trade

SALLR 2024 workbook

settlement agreement (p 31), disciplinary enquiry charge sheet (p 74), s189A (p 131), trade union constitution (p 223), agency shop agreement (p 258), s68(1)(b) of the LRA (p 285), restraint of trade (p 316), s77(3) of the BCEA (p 385) and NMWA (p 467)

interpretation formula (cont)

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) – para [18]

1.

interpretation: attributing meaning to words used in document:

• legislation

• other statutory instrument

• contract

2.

starting point: language of the provision, read wrt:

• context (reading doc as a whole)

• purpose of provision

• background to preparation and production of doc

interpretation formula (cont)

Natal Joint Municipal Pension Fund v Endumeni Municipality (supra) (cont)

3. consideration must be given to:

• language used (wrt ordinary rules of grammar and syntax)

4. where more than 1 meaning is possible:

• each meaning must be weighed wrt the above factors

• a sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the doc

Natal Joint Municipal Pension Fund v Endumeni Municipality (supra) (cont)

5. judges must be alert not to substitute what they think is reasonable, sensible or businesslike for the actual words used

6. process is objective and not subjective workbook p 131

statutory interpretation approach

Cool Ideas 1186 CC v Hubbard 2014 (4) SA 474 (CC)

• words must be given their ordinary grammatical meaning unless results in absurdity

• riders to general approach:

- provision must be interpreted purposively

- provision must be properly contextualised

- provision must be interpreted to preserve its constitutional validity

§ NUMSA v Chamber of Mines (2017) 38 ILJ 831 (CC)

§ Democratic Alliance v Speaker, National Assembly 2016 (3) SA 487 (CC)

§ Bertie van Zyl v Minister of Safety and Security 2010 (2) SA 181 (CC)

referred to in: Chimphandah v Housing Investment Partners (2021) 32 SALLR 41 (LC)

NUMSA v Kaefer Energy Projects (2022) 33 SALLR 11 (LC)

Law of Evidence Amendment Act 45 of 1988

Mghobozi v Naidoo [2006] 3 BLLR 242 (LAC) applied s3(1)(c) of such Act

• nature of evidence (opinion evidence cannot be given by layman – expert)

• reason why medical evidence not given (abuse considerations; doctor not prepared to defend certificate; not prepared to spend time)

• prejudice to employer (no opportunity to test by own practitioner)

• exercise of discretion (in absence of affidavit, certificate not to be considered at all)

• probative value of hearsay evidence (whether employee showed that he was incapacitated to the extent to be absent from work)

• in casu:

- when certificate challenged, onus on employee to prove:

- indisposed and extent of incapacity see also Old Mutal Life Assurance v Gumbi 2007 (5) SA 552 (SCA)

s189A(13)(d) of the LRA: compensation remedy for procedural unfairness workbook p 140

s189A remedies

4.1.5.4 Regenesys Management (Pty) Ltd t/a Regenesys v Ilungo and Others (2024) 35 SALLR 113 (CC)

workbook p 140

if s189A applies and there is non-compliance with a fair procedure, at what stage must an application be brought

ito s189A(13)?

Ÿ s189A(13)(a): an order to compel the employer to comply with a fair procedure

– before/at the start/during the consultation

– no imminent dismissal/no dismissal as yet

Ÿ s189A(13)(b): interdicting and restraining the employer from dismissing employee prior to complying with a fair procedure (temporary order)

– dismissal imminent (but not yet happened) without fair procedure

s189A remedies (cont)

4.1.5.4 Regenesys (cont)

workbook p 140

if s189A applies and there is non-compliance with a fair procedure, at what stage must an application be brought

ito s189A(13)? (cont)

Ÿ s189A(13)(c): directing the employer to reinstate the employee until there is compliance with a fair procedure (temporary order)

– dismissal took place without fair procedure

– appropriate to reverse the dismissal

– consultation is to be put back on track

– inappropriate if significant time lapse between dismissal and adjudication

Ÿ s189A(13)(d): award compensation if 3 subsections not applicable (final order)

– hold employer responsible for failure to comply with fair procedure

– compensate employee for such infringement

s189A remedies (cont)

4.1.5.4 Regenesys (cont)

workbook p 140

when can an order for compensation ito s189A(13)(d) be claimed as a standalone remedy?

time-lapse between date of dismissal and date of adjudication so long that it cannot reasonably be expected that the employer should resume consultation

an order ito s189A(13)(a) or (b) or (c) inappropriate

order of reinstatement inappropriate

onus on the employer to place the above evidence before the court

s189A remedies (cont)

4.1.5.4 Regenesys (cont)

workbook p 140

comparison between compensation ito s191 and s189A(13)(d):

no difference in purpose: to afford employee relief for right to procedural fairness infringed

no difference in route: except in the case of s189A(13)(d):

Ÿ only available if, in essence, an order ito s189A(13)(a) to (c) is inappropriate

Ÿ application must be brought within 30 days of employer giving notice to terminate or, if no notice given, within 30 days of dismissal – subject to condonation granted (s189A(17))

s189A remedies (cont)

4.1.5.4 Regenesys (cont)

workbook p 140 whether s189A(18) excludes the jurisdiction of the labour court to adjudicate all disputes about procedural fairness dismissals for operational requirements or only some? jurisdiction of the LC

adjudication ito s191(5)(b)(ii) application ito s189A(13)

procedural fairness disputes to which procedural fairness disputes s189A does not apply to which s189A applies

s189A plays no role s189A(13)(a) to (d)

LC jurisdiction intact LC jurisdiction intact

restructuring process

Telkom SA SOC Ltd v Van Staden (2021) 32 SALLR 8 (LAC); (2021) 42 ILJ 869 (LAC)

SA Breweries (Pty) Ltd v Louw (2017) 28 SALLR 71 (LAC)

restructuring exercise: organisational structure changed, adjusting and streamlining roles and positions, altering job functions: s189 and s189A placement process not unfair requiring employee(s) to apply placement criteria

• qualifications and experience (best fit for job)

• qualifications and potential

• LIFO competing for same position

Pratten v Afrisun (2020) 31 SALLR 159 (LC) technical competencies behavioural competencies

not selection criteria ito s189(2)(b) and s189(7)

Regenesys Management (Pty) Ltd t/a Regensys v Ilungo (2024) 35 SALLR 113 (CC) after non-placement, substantive fairness of dismissal still to be established: dismissal selection criteria

165

4.1.6.1 Sanlam Life Insurance v Mogomatsi and Others (2023) 34 SALLR (LAC) workbook p 165 constructive dismissal

stage 1

Ÿ employee must prove that the employer effectively dismissed him by making the continued relationship intolerable

Ÿ if an employee resigns because work has become intolerable ≠ constructive dismissal: it must be of the employer’s doing

Ÿ but, even if employer is responsible for the relationship being intolerable, it may not be blamed – more is required

Ÿ the employer must be culpably responsible for the intolerability – the conduct must have lacked reasonable and proper cause

Murray v Minister of Defence (2008) 29 ILJ 1369

Strategic Liquor Services v Mvumbi NO (2009) 30 ILJ 1526 (CC)

Ÿ viewed objectively, the employee could not reasonably be expected to continue

National Health Laboratory Services v Yona (2015) 36 ILJ 2259 (LAC)

s186(1)(e) of the LRA: constructive dismissal (cont)

4.1.6.1 Sanlam Life Insurance (cont)

workbook p 165

constructive dismissal

stage 2

after constructive dismissal established, an evaluation whether the dismissal was unfair

* stages might overlap and be interrelated

Jordaan v CCMA (2010) 31 ILJ 2331 (LAC)

automatically unfair dismissals

s187(1)(f) of the LRA read with s6(1) of the EEA:

v Lane 1998 (1) SA 300 (CC)

Step 1: Did the act or omission differentiate between people or categories of people?

test for unfair discrimination

Harksen

test for unfair discrimination ( cont)

Harksen v Lane 1998 (1) SA 300 (CC)

listed ground differentiation non-listed ground differentiation

Step 2: Does the differentiation amount to discrimination? discrimination based on attributes and characteristics with the potential to impair human dignity OR affect human being adversely in a comparably serious manner

Step 3

no discrimination

Step 3

test for unfair discrimination (cont)

Harksen v Lane 1998 (1) SA 300 (CC)

Step 3: Is the discrimination unfair?

listed ground differentiation non-listed ground differentiation

presumption: unfairness

unfairness to be established

unless employer proves fairness test: impact of discrimination on complainant and others in similar position

compliance non-compliance

unfair discrimination

fair discrimination

4.1.7.1

cannabis testing

Enever v Barloworld Equipment (2024) 35 SALLR 115 (LAC)

workbook p 169

application of s11 of the EEA

Harksen v Lane 1997 (11) BCLR 1489, applied in Mbana v Shepstone & Wylie (2015) 36 ILJ 1805 (CC)

listed ground arbitrary ground presumption that discrimination is unfair complainant must prove:

Ÿ conduct irrational

Ÿ amounts to discrimination

Ÿ discrimination is unfair onus on employer to prove:

Ÿ did not occur or

Ÿ rational/not unfair/otherwise justifiable on a ground that impacts human dignity or affects adversely in comparably serious manner as listed ground

Naidoo v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC)

cannabis testing (cont)

4.1.7.1 Enever v Barloworld Equipment (cont)

workbook p 169

zero-tolerance policy

Prince (CC): decriminalised the use/possession of cannabis in private by an adult for own consumption

Occupational Health and Safety Act 85 of 1993:

Ÿ s8(1) duty on an employer to provide and maintain a working environment that is safe and without risk to the health of employees

Ÿ regulation 2A: an employer shall not permit any person who is/appears to be under influence of intoxicating liquor or drugs to enter or remain on the workplace

main justification grounds for zero-tolerance policy

rejected

possible justifications: nature of the job and nature of environment

cannabis testing (cont)

4.1.7.1 Enever v Barloworld Equipment (cont)

workbook p 169

zero-tolerance policy (cont)

is the policy overbroad in having the effect of sanctioning the unwarranted and unjustifiable invasion of the right to privacy (s14 of the Constitution) and the cognate right to dignity (s10 of the Constitution)? YES

Why?

Ÿ the blood test alone, without proof of impairment at the workplace:

– prevents the employee from engaging in conduct

– to use cannabis in private

– yet, the employer, by means of the policy, is able to force the employee to choose between his/her job and the exercise of the right to consume cannabis in private

justifiable reasons for such infringement?

Ÿ ‘stoned’/intoxicated to the extent that work adversely affected or

Ÿ the employee created an unsafe working environment for himself/others

Ÿ causes undue hardship to the employer in a practical sense

cannabis testing (cont)

4.1.7.1 Enever v Barloworld Equipment (cont)

workbook p 169

zero-tolerance policy (cont)

criticism of such approach adopted re all infractions, regardless of its appropriateness or proportionality to the offence

Shoprite Checkers v Tokiso Dispute Settlement [2015] 9 BLLR 887 (LAC)

law does not allow employer to adopt a zero tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence

employer cannot create a ‘no go area’ where all breaches of the policy entail transgressions

POPCRU (CC): a restrictive policy is not justified if:

– it does not affect the employee’s ability to perform duties or

– it does not jeopardise the safety of the public or employees nor

– cause undue hardship to the employer in a practical sense

∴ a rational connection must exist between the purported purpose of the discrimination and the measure taken

distinction between s50(2)(a) compensation and s50(2)(b) damages (EEA)

automatically unfair dismissals ito s187(1)LRA

BMW (SA) (Pty) Ltd v NUM (2020) 31 SALLR 119 (LAC); (2020) 41 ILJ 1877 (LAC)

LRA EEA

automatically unfair dismissal

(s187(1)(f)

compensation ito s194(3)

just and equitable in all circumstances

no more than 24 months’ remuneration

damages claim

unfair discrimination (s6)

actual / potential monetary loss (patrimonial loss)

compensation claim

a solatium (non -patrimonial loss) insult/humiliation/ indignity/hurt

SA Airways (Pty) Ltd v Janse van Vuuren (2014) 35 ILJ 2774 (LAC) (followed)

ARB Electrical Wholesalers v Hibbert (2015) 36 ILJ 2989 (LAC)

s186(2)(b) of the LRA: unfair suspension

workbook pp 192 and 195

pre-dismissal suspension (ulp)

workbook p192

Hailey (2010) 21 (4) SALLR 1 (LC)

Baloyi (2010) 21 (7) SALLR 1 (LC)

Heyneke (2010) 21 (8) SALLR 1 (LC)

City of Johannesburg Metropolitan Municipality (2010) 21 (26) SALLR 1 (LC)

Zindile (2010) 21 SALLR 84 (LC)

Gradwell (2012) 23 SALLR 7 (LAC)

Long (2019) 30 SALLR 1 (CC)

BEFORE EMPLOYER MAKES DECISION TO SUSPEND

substantive fairness

allegation: serious misconduct (reasonable belief)

purpose: pending investigations into alleged misconduct:

considerations: (reasonable belief)

§ jeopardise investigations?

§ interfere with evidence?

§ interfere with potential witnesses?

Shoprite Checkers v JL (2022) 33 SALLR 15 (LC): element not present

§ interfere with assets/property

§ endanger well-being of any person

special leave: not permitted

procedural fairness

§ audi alteram partem rule

§ right to reasonable time to respond

§ right to further particulars

§ right to information upon which employer relies

Long (2019) 30 SALLR 1 (CC)

Booysen (2011) 32 ILJ 112 (LAC)

Gradwell (2012) 23 SALLR 7 (LAC)

AFTER EMPLOYER MAKES DECISION TO SUSPEND

generally

s191(1) of the LRA

s186(2)(b) of the LRA :

CCMA/bargaining council extraordinary/urgent circumstances labour court

conciliation arbitration

s186(2)(b) of the LRA: unfair suspension developments

4.2.2.1 National Public Service Workers Union obo Lamprecht v Department of Health KwaZulu-Natal PSHS 105-23/24

workbook p 192

4.2.2.2 Strydom v Arcelormittal SA (2024) 35 SALLR 131 (LC)

workbook p 195

precautionary suspension punitive suspension (full pay) (no pay)

Aminto (LC)

suspension where employee loses registration with controlling body

Lamprecht (PSHS105-23/24

unlawful precautionary suspension precautionary suspension without pay

employee: unreasonably delays; no intention to constructively participate procedural fairness: submit reasons as to why not possible: value judgment if fair

Strydom (LC) ✖

Strydom (LC) ✔

procedural fairness

Avril Elizabeth Home for the Handicapped v CCMA (2006) 10 SALLR 118 (LC)

Mongezi Tshongweni v Erkuhuleni Metropolitan Municipality (2010) 21 SALLR 85 (LC)

Mathabathe v Nelson Mandela Bay Metropolitan Municipality (2016) 27 SALLR 122 (LC)

De Kock v CCMA (2019) SALLR 177 (LC)

FA v University of Witwatersrand (2023) 44 ILJ 929 (CCMA)

2023 SALLR workbook p 69

Mulaudzi v Property Practitioners Regulatory Authority (2023) 34 SALLR 77 (LC) workbook p 198

1956 LRA

§ criminal justice model

§ industrial court forum

§ unfair labour practice environment

1995 LRA

§ elaborate procedural requirements inappropriate

§ arbitration forum

§ unfair dismissal environment

procedural fairness (cont)

Avril Elizabeth Home for the Handicapped v CCMA (2006) 10 SALLR 118 (LC)

Mongezi Tshongweni v Erkuhuleni Metropolitan Municipality (2010) 21 SALLR 85 (LC)

Mathabathe v Nelson Mandela Bay Metropolitan Municipality (2016) 27 SALLR 122 (LC)

De Kock v CCMA (2019) SALLR 177 (LC)

FA v University of Witwatersrand (2023) 44 ILJ 929 (CCMA)

Mulaudzi v Property Practitioners Regulatory Authority (2023) 34 SALLR 77 (LC)

1956 LRA

FORMAL DISCIPLINARY ENQUIRY ENVIRONMENT

§ putting of charge

§ request to plead

§ evidence:

ü in chief

ü cross-examination

ü re-examination

§ aggravating and mitigating circumstances, etc

1995 LRA

OPPORTUNITY TO RESPOND ENVIRONMENT

§ investigation into allegations

§ opportunity to respond

§ assistance of a representative

§ decision by the employer

§ notice of the decision

§ notice to refer dispute to:

- CCMA or

- relevant bargaining council or

- procedure ito collective agreement

‘modern trade union’ registration by the registrar of labour relations

admission of members by a trade union

4.3.2.3.1 Afgri Animal Feeds v National Union of Metalworkers (2024) 35 SALLR 169 (CC) (Afgri) and National Union of Metalworkers of South Africa v Lufil Packaging (2020) 31 SALLR 138 (CC) (Lufil) workbook p 244

s4(1)(b) of the LRA: every employee has the right to join a trade union, subject to its constitution a union’s registered scope is defined in its constitution its constitution, together with rules and regulations, establishes a contract between the individual members who are bound in a voluntary association a union cannot operate outside its registered scope an act that deviates from or is contrary to a union’s constitution: ultra vires and null and void

organisational rights (Lufil) representation at any forum (Afgri)

Ÿ s161(1)(c) and s200(1)(b) and (1)(c): LRA

s25, s25A, s25B and s25C of the BCEA

workbook p 388

leave in respect of a child born from a mother, a child born by surrogacy and an adopted child

9.2 Van Wyk v Minister of Employment and Labour (2024) 35 SALLR 134 (GJ)

workbook p 388

s25(1) birth mother based leave

Ÿ a single parent and a pair of parents collectively

Ÿ are entitled to 4 months’ consecutive parental leave

Ÿ pair of parents election:

– one or other of the parents: the whole period or

– each parent shall take turns

Ÿ both employers in the case of a pair of parents must be notified prior to the birth:

– the election

– if shared, the period(s) to be taken

9.2 Van Wyk (cont)

workbook p 388

leave

in respect

of a child born from a mother, a child born by surrogacy and an adopted child (cont)

s25(1) birth mother based leave (cont)

s25A parental leave

s25B adoption leave

s25C commissioning parental leave

s26B(6): if an adoption order is made iro 2 adoptive parents –each entitled to s25(1) rights

s25C(6): if 2 commissioning parents – each entitled to s25(1) rights

s34(1) of the BCEA: deductions from wages where employer erroneously paid employees – see also s77(3) of the BCEA

workbook pp 397 and 404

s34 of the BCEA: deduction from wages where employer erroneously paid employees

9.3.1 North West Provincial Legislature v NEHAWU (2023) 34 SALLR 351 (LAC) workbook p 397

s34(1) of the BCEA

an employer may not make deductions from an employee’s remuneration unless:

– subject to s34(2) the employee agrees, in writing, or

– deduction is made ito law, collective agreement, court order or arbitration award

s34 of the BCEA (cont)

9.3.1 NEHAWU

(cont)

workbook p 397

s34(2) of the BCEA

a deduction ito s34(1) can only be made if

Ÿ loss/damage occurred in course of employment and employee at fault

Ÿ employer followed a fair procedure – give the employee reasonable opportunity to show why deductions should not be made

Ÿ total amount of debt does not exceed actual amount of loss/damage

Ÿ total deductions not exceed ¼ of employee’s remuneration in money

9.3.1 NEHAWU (cont)

workbook p 397

s34 of the BCEA (cont)

erroneous payment made for participation in strike (lawful/unlawful)

principle of no work no pay (s67(3) of the LRA) not in conflict with s34 of the BCEA: (difference between entitlement not to pay and entitlement to deduct from remuneration ito s34 of the BCEA)

compliance with s34(2)(b): a fair procedure – in the absence of leading to an agreement and in the absence of the other requirements being complied with (law, collective agreement, court order or arbitration award) does not trigger the right to deductions

no work no pay principle not a law contemplated in s34(1)(b)

set-off not permissible:

– what does the employer owe the employee? (non-compliance with the requirement of parties being mutually indebted to each other)

– Ubogu (CC): not possible if there is a dispute

s77(3) of the BCEA

9.3.2 Mhlontlo Local Municipality v Ngcangula (2024) 35 SALLR 132 (SCA)

workbook p 404

employees erroneously received an increase in wages and increase in allowances

not entitled: did not meet the qualifying criteria

was the increment a term of the employment contract?

Ÿ not pleaded nor self-evident from a perusal of the contracts

Ÿ no allegation that the employees met the qualifying criteria

payment erroneously made did not give rise to a contractual entitlement: to holder otherwise would entrench illegality

founding affidavit: deductions made without consent and in breach of s34(1) of the BCEA

employer’s conduct not in breach of its contractual obligations

municipality: constitutionality obliged to put in place process to recover monies

EEA: i) harassment ito s6(3) of the EEA and item 4 of the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace

workbook p 424

ii) retracting an offer of employment and relying on resolutive conditions in employment

contract: past criminal record

workbook p 439

iii) different rates for old and new employees

workbook p 454

harassment ito s6(3) of the EEA and item 4 of the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the Code): unfair discrimination on an arbitrary ground

11.1.1 La Foy v Department of Justice and Constitutional Development (2023) 34 SALLR 360 (LC) workbook p 424

s6(3) of the EEA: harassment in a form of unfair discrimination and prohibited ito s6(1) of the EEA

item 4.1 of the Code: harassment generally:

– unwarranted conduct impairing dignity

– creates a hostile/intimidating work environment or is calculated to or has effect of inducing submission by actual/threatened adverse consequences

– related to one/more grounds in s6(3) of the EEA

item 4.6 hostile work environment:

– conduct on a prohibited ground impacts dignity

– e g negative impact on employee’s ability to work or personal well-being

– e g conduct of persons in authority or conduct of other employees

harassment on an arbitrary ground (cont)

11.1.1 La Foy (cont)

workbook p 424

alleged harassment/hostile work environment

objective evaluation of subjective hurt (item 4.7.5 of the Code could be applicable) harassment etc exercise of managerial powers

onus on complainant: s11(2) of the EEA subject to supervision, direction, – irrational conduct control, interference

discrimination

unfair discrimination

11.1.1 La Foy (cont)

harassment on an arbitrary ground (cont)

workbook p 424

crux of the test for unfair discrimination:

– classification between listed/non-listed ground only affects onus

– impairment of human dignity or an adverse effect in a comparably similar manner

Harksen v Lane 1998 (1) SA 300 (CC)

Metrorail [2017] 7 BLLR 706 (LC)

disciplinary processes, demotion, transfer, etc: LRA remedies

no automatic non-qualification of an applicant for

a

job

on the basis of a criminal record, no automatic cancellation of concluded employment contract

11.1.2 O’Connor v LexisNexis (Pty) Ltd (2024) 35 SALLR 124 (LC)

workbook p 439

applicant for a job

successful: offer of employment subject to resolutive condition (clean criminal history)

criminal history established

honesty, integrity, etc: inherent

requirement of the job

honesty, integrity, etc: not inherent requirement of the job

s6(2)(b) of the EEA defence

not unfair discrimination

a) Code of Good Practice on the Integration of Employment Equity into Human Resources Policies and Practices:

– no criminal check permitted unless relevant to job (also qualifications, credit references)

Ÿ para 7.3.32

– no collection of personal data (including criminal convictions), except directly relevant to employment decisions

Ÿ para 17.3.6

b) no rational justification: Law Society (CC) – workbook p 435

11.1.2 O’Connor (cont) workbook p 439

criminal record (cont)

criminal history established

honesty, integrity, etc: not inherent requirement of the job not employed/resolutive condition operative

unfair discrimination on an arbitrary ground

test: Harksen v Lane 1998 (1) SA 300 (CC) applied in Naidoo v Parliament of the Republic of SA (2020)

41 ILJ 1931 (LAC)

Ÿ attributes/characteristics with the potential to impair human dignity or

Ÿ affect the person adversely in a manner comparable to discrimination on a listed ground

11.2.1 AMCU v Aberdare Cables (2024) 35 SALLR 122 (LC)

workbook p 454

application of Harksen v Lane 1998 (1) SA 300 (CC) (in Naidoo v Parliament of the Republic of South Africa

[2020] 10 BLLR 1009 (LAC)) wrt s6(4) and s11 of the EEA and Code of Good Practice on Equal Pay for Work of

Equal Value (the Code)

Stage 1: is there a differentiation between people or categories of people?

– if ‘YES’: is it rational?

– even if rational, it might still amount to discrimination that could be unfair

equal pay for equal work disputes (cont)

11.2.1 AMCU (cont)

workbook p 454

stage 2: does the differentiation amount to discrimination?

– if it is on a listed ground, discrimination is established

– if it is on an arbitrary ground:

Ÿ the ground must be based on attributes/characteristics that impair human dignity or

Ÿ affect persons adversely in a comparably serious manner to a listed ground

11.2.1 AMCU (cont)

equal pay for equal work disputes (cont)

workbook p 454

stage 3: does the discrimination amount to unfair discrimination?

Ÿ if it is on a listed ground, unfair discrimination is presumed

Ÿ if it is on an arbitrary ground, the complainant must establish unfairness:

– the test: the impact of the discrimination on the complainant and others in similar positions

stage 4: if the discrimination is unfair, is there a ground of justification?

Ÿ s6(2)(b) of the EEA and the Code

EEA

unfair discrimination (cont)

s6(1) prohibition

listed grounds non-listed grounds

• race

• gender any other arbitrary ground

• sex +

• pregnancy equal pay claims

• marital status

• family responsibility

• ethnic or social origin

• colour

• sexual orientation

• age

• disability

• religion

• HIV status

• conscience

• belief

• political opinion

• culture

• language

• birth + equal pay claims

EEA

different stages where unfair discrimination is alleged to exist on a listed ground in terms of s6(1) of the EEA: s11(1)

workbook pp 432, 434, 456, 460

EEA

different stages where unfair discrimination is alleged to exist on any other arbitrary ground: s11(2)

Pioneer Foods (Pty) Ltd v Workers Against Regression (2016) 37 ILJ 2872 (LC); (2016) 27 SALLR 125 (LC) workbook pp 432, 434, 456, 460

Alleged unfair discrimination: any other arbitrary ground: s6(1)

Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) Pioneer Foods v WAR (2016) 27 SALLR 125 (LC)

Harksen v Lane 1998 (1) SA 300 (CC)

workbook p 464

contractual versus statutory rights and obligations

contractual v statutory rights and obligations

NUMSA obo Fohlisha v Hendor Mining Supplies (2017) 37 ILJ I1560 (CC)

created by contract between the parties

eg retrenchment policy or procedure contractual consequences and defences

labour court and high court litigation and / or created by the legislature

eg s189 of the LRA or schedule 8 statutory consequences and defences

CCMA and labour court litigation

contractual right

Solidarity v SABC (2016) 37 ILJ 2888 (LC); (2016) 27 SALLR 34 (LC)

Mahonono v National Heritage Council (2022) 33 SALLR 162 (LC)

SAMWU v Tswaing Local Municipality (2022) 33 SALLR 60 (LAC)

Greyling v George Randell High School (2022) 33 SALLR 279 (LC)

LRA right

SAFA (2012) 23 SALLR 31 (LAC)

Value Logistics (2012) 23 SALLR 1 (HC)

Ngubeni v National Youth Development Agency (2014) 35 ILJ 1356 (LC)

Dyakala v City of Tshwane Metropolitain Municipality (J572/15[2015] ZALCHB104(23/3/2015))

alleged breach of contract claim for:

- damages - compensation - specific performance labour court and high court jurisdiction: concurrent jurisdiction (s77(3) and s77A(e) of the BCEA)

Haynes 1951 (2) SA 371 (A);

Stag Packaging 1982 (4) SA 151 (T); SABC (2021) 42 ILJ 816 (LAC)

[unlawful conduct]

dismissals: unlawful and ab initio void

Tshongweni (2013) 24 SALLR 21 (LAC)

alleged unfair dismissal / alleged unfair labour practice claim for:

- reinstatement - re - employment

- compensation

CCMA and labour court jurisdiction: s193, s194, s195 of the LRA (remedies) [unfair conduct]

the limited damages rule: unlawful termination of employment contract

Harper v Morgan Guarantee Trust 2004 (3) SA 253 (W)

reasons or motives for exercising a contractual right to terminate are normally irrelevant

Mutsapha v Receiver of Revenue 1958 (3) SA 343 (A)

where an employer reserves for itself the right to terminate an employment contract, the only potential actionable wrong is the failure to pay the requisite note or permit the employee to work during such notice

damages limited to what employee would have earned during notice period

referred to in: Khan v MMI Holdings (2021) 32 SALLR 44 (LC)

the

Harper (supra) (cont)

• limited damages rule applicable to all cases of unlawful termination:

- short notice - defective notice - no notice

- or some other breach of contract giving rise to election to terminate

National Entitled Workers Union v CCMA (2007) 28 ILJ 1223 (LAC)

• if employer lawfully terminates contract (i e given proper notice or paid in lieu of notice) employee has no contractual remedy in law

• if employer unlawfully terminates contract: contractual claim restricted by limited damages rule

BCEA Amendment Act 2018

the effect of the BCEA Amendment Act 2018 on the dispute resolution path for monies owed ito NMWA, a contract of employment, sectoral determination or collective agreement: s73A

employee or worker earning above the threshold: s6(3) BCEA (currently R254 371.67pa)

dispute

alternatives

labour court high court magistrate’s court small claims court

the effect of the BCEA Amendment Act 2018 on the dispute resolution path for monies owed ito

NMWA, a contract of employment, sectoral determination or collective agreement: s73A

employee or worker earning below the threshold: s6(3) BCEA (currently R254 371.67 pa)

dismissals: non-compliance with collective agreements and non-compliance with the LRA

Highveld District Council v CCMA and Others (2003) 24 ILJ 517 (LAC); Ekurhuleni Metropolitan Municipality v SA Municipal

Workers Union (2018) 39 ILJ 546 (LAC); [2018] 3 BLLR 246 (LAC); (2017) 28 SALLR 35 (LAC)

agreement

cause of action: breach of agreement

s77(3) and s77A(e) of the BCEA

collective agreement

cause of action: breach of collective agreement not s77(3) of the BCEA not s77(3) of the BCEA

s24 of the LRA

SACCAWU v De Wet and SI (2021) 32 SALLR 29 (LC)

cause of action: statutory unfairness

s191 of the LRA (jurisdiction)

enforcement of collective agreements incorporated into employment contract

MEC for Economic Development, Environment and Tourism, Limpopo v Leboho (2022) 33 SALLR 281 (SCA); (2022) 43 ILJ 2695 (SCA)

collective agreement

Interpretation / application issue

enforcement / compliance issue

s24 of the LRA

Tshambi v HOSPERSA (2016) 37 ILJ 1839 (LAC)

civil jurisdiction

1.1

unlawful termination of employment contract

Acting National Commissioner, Department of Correctional Services and Others v Ndara (2023) 34 SALLR

347 (LAC)

workbook p 5

contractual terms

LRA, PSA, agreement procedural requirement e g consultation

cause of action: breach of agreement

s77(3) and s77A(e) of the BCEA

labour court and high court litigation

labour court has no general jurisdiction in labour matters

1.2 SA Medical Association Trade Union obo Rikhotso v Member of the Executive Council, Department of Health, Limpopo Province and Others (2023) 34 SALLR 354 (LC) workbook p 11

Baloyi v Public Protector and Others 2021 (2) BCLR 101 (CC)

LC: no general jurisdiction in employment matters

s157(1) of the LRA: exclusive jurisdiction of the LC (workbook p 18)

LRA (to be determined by the LC)

eg s68(1), 77(2)(a), 145, 191 other law (to be determined by the LC)

common law recourse

1.3 The Passenger Rail Agency of South Africa and Nine Others v Onica Martha Ngoye and Two Others (2024) 355 SALLR 120 (LAC) workbook p 15

Does the dispute-resolution mechanism in the LRA defeat an employee’s right to rely on common law recourse? – iro dismissals and unfair labour practice

A. SCA: Fedlife, Makhanya, SA Maritime Safety Authority – NO

Ÿ LRA rights are not the only rights an employee is entitled to

A.1 SCA: minority judgment Fedlife – YES

Ÿ LRA comprehensively deals with the constitutional right to fair labour practices and defeats the right to non-LRA resources

Ÿ regarded by LAC in casu as ‘far more persuasive’

common law resource (cont

1.3 The Passenger Rail Agency (cont) workbook p 15

Does the dispute-resolution mechanism in the LRA defeat an employee’s right to rely on common law recourse? – iro dismissal, unfair labour practice grounds (cont)

B. CC

B.1 CC: Chirwa – caution

Ÿ litigants could bypass the dispute-resolution machinery of the LRA by formulating their claims without reliance on fairness

B.2 CC: Gcaba – caution

Ÿ a dual system of law could develop

B.3 CC: Edcon – separation of causes of action acknowledged

Ÿ a litigant must seek an LRA remedy for an LRA infringement

Ÿ if an LRA infringement is not sought, common law remedies are to be persued

common law resource (cont)

1.3 The Passenger Rail Agency (cont) workbook p 15

Does the dispute-resolution mechanism in the LRA defeat an employee’s right to rely on common law recourse? – iro dismissal, unfair labour practice grounds (cont)

B.4 CC: Zungu – unfair dismissal claims cannot be ‘dressed up’ as contractual claims

Ÿ relied upon by LC to reject various contractual claims

B.5 CC: Baloyi – LRA did not extinguish contractual remedies

C. LAC IN CASU

Ÿ minority judgment in Fedlife (SCA) more appealing

Ÿ accepted, bound by Baloyi (CC)

Ÿ expressed concerns about disadvantages of recognising a claim outside LRA:

– overrides respect for purpose-built employment framework in order to prevent a dual system of law

– if contractual claim is perused and, if successful, this is no guarantee in getting the job back or damages being awarded

common law resource (cont)

1.3 The Passenger Rail Agency (cont)

workbook p 15

Does the dispute-resolution mechanism in the LRA defeat an employee’s right to rely on common law recourse? – iro dismissal, unfair labour practice grounds (cont)

What happens once it is found that unlawfulness exists?

primary remedy: specific performance not automatically granted if breach established

C LAC in casu (cont)

common law resource (cont)

1.3 The Passenger Rail Agency (cont) workbook p 15

Does the dispute-resolution mechanism in the LRA defeat an employee’s right to rely on common law recourse? – iro dismissal, unfair labour practice grounds (cont)

C LAC in casu (cont)

court to exercise a discretion whether to grant specific performance or not – some relevant factors:

• facts and circumstances of the breach

• nature of the contract – employment contract is not a commercial or transactional contract, but personal contract

• interaction between the parties

• potential conflict at the workplace

• whether the employer still has a need for the employee

alternative remedy: damages – only granted to the extent proven

3.1

Member of Executive Council for Education, KwaZulu-Natal v Singh (2023) 34 SALLR 370 (SCA) workbook p 35 whether a negligent omission is unlawful?

firstly, only if the law regards as sufficient a legal duty to avoid negligently causing harm (psychological or physical)

fact-driven enquiry: wrt all the relevant facts and circumstances

an employment relationship, without more, does not place a duty on the department to ensure that no teacher suffers harm

3.1 Singh (cont)

workbook p 35

delictual claims (cont)

duty on employee to utilise internal procedure (e g grievance procedure)

legal and public policy dictates that a claim under the LRA (e g constructive dismissal) should not co-exist with a delictual claim

secondly, only if the omission complies with the test of negligence in Kruger v Coetzee (workbook pp 40, 88): whether a reasonable person in the position of the defendant would not only have foreseen the harm but would have also acted to avert it

3.2 SA Municipal Workers Union National Medical Scheme (SAMWUMED v City of Ekurhuleni and Others (2024) 35 SALLR 133 (SCA) workbook p 46

employers’ organisation collective agreement trade unions (SALGA) (s213) (including SAWMU)

accreditation of medical schemes bargaining council (criteria) (SALGBC)

accredited medical schemes (including SAMWUMED)

no sitipulatio alteri

Ÿ SAMWUMED not s213 party (workbook p 50)

Ÿ no extension to non-party ito s32 accreditation constitutes agreement

Ÿ giving rise to rights and obligations

delict of unlawful interference with contractual relations by employer committed in casu

where do delictual claims fit in?

contractual, collective agreement and LRA rights and obligations v delictual claim: scenario 1

automatically unfair dismissal (s187(1)(f) of the LRA) constructive dismissal (s186(1)(e) of the LRA) or unfair discrimination (s6(3) of the EEA)

alternative civil claims (delict)

Actio legis Aquiliae: negligent (culpa) or intentional (dolus) and wrongful causing of patrimonial damage (pecuniary) and

Actio iniuriarum: intentional (dolus animus iniuriandi) infringement of interest of personality: recovery of sentimental damages (solatium) entitled to proven damages

new labour and labour appeal court rules

NEW LABOUR AND LABOUR APPEAL COURT RULES

OVERVIEW

• took effect 17 July 2024

• repealed previous Labour Court and Labour Appeal Court Rules and replaced the Practice Manual

• reflect technological advancements

- service via email instead of fax or registered post

- virtual hearings

• introduction of dies non

OVERVIEW (cont)

• aimed at expedited hearings and clearing the backlog

- case management

- fast tracking

- new requirements for review applications

- specific procedures for restraints of trade

• introduction of new rules which resemble High Court rules

- exceptions, applications to strike out, irregular step proceedings, replication and plea in reconvention, close of pleadings, amendments to pleadings, barring

• regulates media access to proceedings

ADMINISTRATIVE

• Rule 1: definitions

- dies non- ‘day’ means any day other than a Saturday, Sunday, public holiday, or any day within the period between 16 December and 15 January (both dates inclusive)…

• Rule 2:

- office hours to 15h00

• Rule 3: seats where proceedings must be initiated and court sittings

- proceedings must be initiated at the seat of the court nearest to the place where the dispute arose unless the JP directs otherwise

• Rule 5: dress code

• Rule 6: modes of address and introduction

ISSUING OF DOCUMENTS

Rule 7: Issuing of documents and registrar’s duties

• send initiating document to registrar by email with request for case number

• no further action in 3 months after the initiating document has been filed, the file will automatically be closed and archived, provided the registrar has afforded the initiator 15 days’ written notice

Rule 69(2) – archiving after 6 months without further action and failure to comply with directions (subject to rule 7)

Applications for retrieval

Rule 8: Form of documents (font, spacing etc.)

SERVICE AND FILING OF DOCUMENTS

Rule 9: Service

• introduces an option to serve by email, if the other party has an email address (Chapter III, Part 2 of the Electronic Communications and Transactions Act 50 of 2002)

• in a case of service by email, service is proved by filing a service affidavit. The deponent must provide proof that the correct email address was used, that the whole of the email was sent and confirm that a named person telephonically confirmed receipt of the whole of the email

• requirements for service on municipality, state, department of national or provincial government

Rule 10: Filing

• documents may be filed by hand or email

• the original document must be lodged within 10 days of it being emailed

REFERRALS FOR ADJUDICATION

Rule 7: Issuing a statement of claim

Rule 11: Statement of claim

• referred to as plaintiff and defendant

• form 1 Heading

• statement + schedule of documents

Rule 12: Notice of intention to defend

• 10 days after statement of claim/20 days for the minister or officer of the State

• may be delivered later, before default judgment has been granted. Costs may be sought in this event

REFERRALS FOR ADJUDICATION

Rule 13: Statement of response

- within 15 days after the notice of intention to defend

- preliminary points to be dealt with seperately i.t.o. exception, special plea, applications to strike out

Rule 15: Replications and plea in reconvention

- within 15 days after statement of response the plaintiff where necessary must deliver a replication to the statement of response and a statement of response to any counter claim

- no replication necessary if there is a mere denial or joinder of issue and no new issues may be raised

- plea in reconvention in the event of a counter-claim in the statement of response

REFERRALS FOR ADJUDICATION (cont)

Rule 18: Close of pleadings

- this occurs

• where the period for the filing of a further pleading has elapsed

• the last day for filing the statement of response has elapsed

• the parties agree that pleadings have closed

• on direction by a judge in chambers, following a referral by the registrar

Rule 19: Special cases and adjudication of points of law

- to cater for questions of law or fact that may be decided before evidence is led or separately from any other question

DEFECTIVE PLEADINGS Rule 14: Exceptions and applications to strike out

- an exception can be raised if a statement of claim is vague and embarrassing or lacks averments which are necessary to sustain an action or defence - exception to be delivered within the period allowed for the filing of any subsequent pleading - take note of Liquid Telecommunication (Pty) Ltd v Carmichael-Brown (2018) 39 ILJ 1779 (LC) - vague and embarrassing exception – must allow 15 days to remove cause of complaint; 10 days thereafter deliver the exception - see Rule 57 (Irregular Proceedings)

DEFECTIVE PLEADINGS (cont)

Rule 41: Interlocutory applications and procedures not specifically provided for in other rules

Rule 20: Amendment to Pleadings

- notice of intention to amend à Notice of objection within 10 days à application to amend within 10 days

- notice of intention to amend à no objection within 10 days à deemed to have consented to the amendment and the other party may effect amendment within 10 days of expiration of the objection period.

FAILURE TO DELIVER PLEADINGS

Rule 16: Barring

- failure to deliver any pleading within the time limit

- notice of bar à 5 days à ipso facto barred

- URC 26 – automatic barring without notice for replication?

Rule 17: Extensions and removal of bar

- application on good cause shown to extend or abridge any time period prescribed or to remove any bar

- thus bar can be removed upon application on good cause shown

FAILURE TO DELIVER PLEADINGS (cont)

Rule 42: Extension of time limits and condonation

Rule 21: Default judgment

- application for default judgment upon expiry of dies for statement of response

- utilising notice of motion and affidavit

- Rule 12(4) – application for default judgment upon failure to deliver notice of intention to defend

PREPARATION FOR TRIAL

Rule 27: Discovery of documents

- failure to agree on discovery – application to compel discovery

Rule 28: Expert Witnesses

Rule 29: Pagination, indexing, binding, etc.

- 10 days after the close of pleadings –plaintiff

- index for:

• Pleadings

• Notices

• Pre-amendment pleadings

• Pre-trial bundle (to be filed later?)

Rule 30: Bundles of Documents for Trials

PRE TRIAL CONFERENCES

Rule 22: Pre-trial conferences

- convene and attend a pre-trial conference within 15 days from the close of pleadings

Rule 23: Additional requirements for pre-trials (specific disputes)

Rule 25(3): failure to conclude pretrial minute

- plaintiff must file the minute within 5 days of conclusion of the pre-trial conference- but no later than 30 days after close of pleadings

- motivation required for a trial longer than 3 days

- plaintiff must file an explanation why the minute cannot be concluded

- case management judge to issue an appropriate directive / case management conference

- Rule 25(8)(h) - continued failure to comply may lead to strike out of claim / defence and/or costs

Rule 24: Fast Tracking

- dismissal of 10 or more employees whose reinstatement is sought -set down for trial on an expedited basis

- plaintiff may deliver a letter to the Judge President

- a judge is appointed to case manage

EXPEDITING TRIALS

Rule 25: Case Management

- once the pre-trial minute has been filed, or after the time for the pre-trial has elapsed

- aim is to secure signed pre-trial minute

- certificate of trial-readiness

- convening of formal case management conferences where attorneys must be fully instructed and prepared to engage to narrow issues and expedite trial

- powers of case management judge (propose voluntary mediation; costs de bonis propiis and striking out of claims or defences)

EXPEDITING TRIALS (cont)

PRIOR TO THE COMMENCEMENT OF THE TRIAL

PRIOR TO THE COMMENCEMENT OF THE TRIAL (cont)

• Rule 22(1)(vi) – pre-trial agreement on exchange of documents-paginated bundle of documents in chronological order

• Rule 31: Practice Notes

- plaintiff must file a practice note by email 10 court days before the trial date or matter could be removed from roll/costs

MOTION PROCEEDINGS

Applications Generally

• Rule 35: Applications generally

- when the application is filed, the applicant may request case management by letter

- application must contain a schedule listing documents that are material and relevant

- a notice of opposition and answering affidavit must be delivered within 10 days

- replying affidavit must be delivered within 5 days

• Rule 36: Filing of answering and replying affidavits

- may be enrolled as unopposed if there is a notice of opposition but no answering affidavit within the prescribed period

- no application for condonation is required where there is no valid notice of objection to lateness

RULE 37: REVIEW APPLICATIONS

new requirement that a founding affidavit must contain no more than a concise statement of the grounds of review

- state whether the whole or part of the award or ruling is sought to be reviewed

the concise statement in the founding affidavit must:

- record in point form each error or misdirection alleged have been committed and alleged to constitute a defect in the proceedings, with reference to the award or ruling or conduct of the decision maker concerned;

- state concisely why the errors or misdirections caused the result of award or ruling to be unreasonable or irrational in relation to the evidence led, without making abstract statements of principle lacking in necessary detail

- factual averments may be concisely incorporated and any abuse of this may be penalised by an appropriate costs order.

- there is a requirement that the award or ruling sought to be reviewed must be annexed

a supplementary affidavit may do no more than supplement the grounds for review set out in the founding affidavit or abandon one or more of them

RULE 37: REVIEW APPLICATIONS (cont)

an answering affidavit may do no more than record, in concise terms, the grounds on which the application is opposed

the applicant may file a replying affidavit which may do no more than respond to the grounds on which the application is opposed, without any repetition of the contents of the founding and supplementary affidavits

an abuse of the rule by an applicant that includes irrelevant or repetitive material risks an adverse costs order

DIES FOR FILING IN REVIEW

Collection and filing of the record

• applicant must collect the record within 5 days of notice from the registrar

• the applicant must furnish the registrar and each of the other parties with the record within 60 days of being notified by the registrar that the record has been received

• the 60-day period will commence running only once a complete record has been delivered

• failure to deliver the record within the 60 day period results in the applicant deemed to have withdrawn the application, unless the applicant has requested respondent’s consent and consent has been given.

Any consent given must be expressed in writing and filed with the registrar

• remainder of provisions where consent has been refused have been incorporated as they are from the Practice Manual

Collection and filing of the record (cont)

• provisions of the Practice Manual on the further conduct of the review application where the record has been lost or is inaudible or of such poor quality that compromises integrity of the record have been incorporated to the Rules

• additional requirement for the applicant to make all reasonable attempts to either find or reconstruct the record before approaching the JP for a direction on the further conduct

• the JP will allocate the file to a judge for direction -allocated judge must meet with the parties to discuss inter alia remittance or reconstruction or that the application may be heard without reference to the record

Filing of a supplementary affidavit

• time limit has been reduced and the applicant now has 5 days to file a notice a notice of amendment and supplementary affidavit or notice that it stands by its notice of motion

Filing of an answering affidavit

• respondent still has 10 days to deliver an answering affidavit

Filing of a replying affidavit

• applicant may file a reply within 5 days

Indexing and paginating applications

• after the filing of a replying affidavit or the expiry of the dies for doing so, the applicant must within 10 days:

- index and paginate the file

- apply to the registrar for a hearing date

• if applicant fails to apply for a hearing date within the prescribed period, the respondent may do so

• if the application is unopposed, the applicant must apply for a hearing date within 10 days of the last date for filing of an answering affidavit

URGENT APPLICATIONS (RULE 38)

• regard is had to urgency when the registrar fixes a date, time and place for the hearing of an urgent application

• new reference to Ex Parte applications being excluded from certain requirements

• the applicant to have available a draft of the order sought, both in hard copy and electronic format

• no longer a requirement for a party who intends to oppose an urgent application to notify the registrar

• no specific days for bringing urgent applications-regard is had to the degree of urgency

APPLICATIONS IN RESTRAINT OF TRADE (RULE 39)

• new rule that regulates applications to enforce restraint of trade applications

• set out a very specific procedure to be followed for bringing restraint of trade applications

• the applicant:

- must, in its notice of motion, make provision for the exchange of four sets of affidavits

- must, when prescribing the time-limits to be adhered to for filing of affidavits, afford:

§ the respondent has at least 7 days to file an answering affidavit

§ the applicant has at least 5 days to file a replying affidavit

§ the respondent has 5 days to file a fourth affidavit

- must, at the time of launching the application, apply to the registrar to allocate a provisional hearing date calculated to take into account the mandatory time periods for the filing of affidavits and heads of argument

- must insert a date not less than 7 calendar days after launching the application for the hearing of the matter if it is unopposed

APPLICATIONS IN RESTRAINT OF TRADE (RULE 39) (cont)

• application will be provisionally enrolled for hearing during the week following the week in which heads of argument have been exchanged

• applicant to ensure that the founding papers are properly paginated before launching the application. All subsequent affidavits to be paginated before filing

• applicant must prepare an index of the application and serve it on the respondent immediately after the filing of the fourth affidavit or expiry of the dies for the filing thereof

• parties must simultaneously serve and file heads of argument within 5 days from the date of delivery of the index or expiry of the dies for doing so

• at the time of filing heads, the applicant must make an application for final enrolment of the matter

• application will be finally allocated for hearing during the week following the delivery of heads; either parties’ failure to file heads will not preclude the matter from being allocated for hearing

HEADS OF ARGUMENT AND PRACTICE NOTES (RULE

40)

• heads of arguments need not be filed in unopposed motions unless the application is a review application

• in opposed motions, the applicant must deliver heads within 15 days after the date on which pleadings close

• respondent must deliver heads no later than 15 days prior to the hearing of an opposed application, even if the applicant has not filed its heads

• failure to file heads timeously may result in a punitive costs order against the defaulting party/striking matter from the roll

• heads must be delivered and be emailed

• Judge may direct the parties to file supplementary heads on any specified issue

• applicant must file a practice note (complying with rule 31 and with necessary changes) by email in respect of any application enrolled for hearing

ADDITION OF NEW RULES

• Rule 36: Filing of answering and replying affidavits

• Rule 39: Applications in restraint of trade

• Rule 54: settlement agreement and draft orders

• Rule 57: Irregular proceedings

• Rule 58: Contempt of Court

• Rule 68: ex tempore judgements

• Rule 69: destruction of documents and archiving

• Rule 70: Pro bono exemption

• Rule 72: Virtual hearings

• Rule 73: Media access to proceedings

• Rule 74: Limitation of liability

NEW LABOUR APPEAL COURT RULES

ADDITIONS

• Rule 5 – cross appeals

• Rule 7 – urgent appeals

• Rule 12 – practice note

• Rule 13 – powers of the Judge President

• Rule 17 – appeals from the Defence Special Tribunal

• Rule 19 – media access to proceedings

KEY CHANGES

• Rule 4 – petitions for leave to appeal

• Rule 6 – procedure on appeal

• Rule 11 – heads of argument

• Rule 15 – Labour Appeal Court sitting as court of first instance

• Rule 4: Petition for leave to appeal

- notice of motion and affidavit

- 15 days of the date on which an application for leave to appeal was refused (change from 10 days)

- affidavit must be less than 20 pages, succinct grounds of appeal

- annex judgment and order refusing leave to appeal

- answering affidavit in 10 days; replying affidavit in 10 days

- reply must not contain new issues

- partial granting or refusing of petition

- no reasons necessary for refusal of petition

•

Rule 6: Procedure on appeal

- similar to old rule

- notice of appeal

- 15 days after leave (application or petition) has been granted

- notice of cross appeal within 15 days of the notice of appeal

- record of appeal within 60 days of leave being granted

- electronic version of record ‘in format that will be easily accessible’

- respondent may raise any issue concerning correctness of record

- respondent to file record necessary for cross appeal

- failure to file record in 60 days – deemed to have been withdrawn and archived or registrar may set down for hearing and court will decide whether to hear, dismiss or strike appeal off roll with or without costs

- failure to file a proper record -matter struck from roll

- consent / application to the JP (rule 13)

- condonation / reinstatement heard together with the appeal

- indigent persons may be excused from compliance

• Rule 7: Urgent Appeals

- can apply to JP for urgent hearing of appeal

- affidavit must set out urgency

- respondent may file answering affidavit within 10 days

- no reply permitted

- will be decided in chambers

- JP to give directions re further conduct

•

Rule 11: Heads of argument

- Appellant files heads 30 days after the record has been filed

- Respondent files no later than 15 days after applicants heads delivered or due

- no more than 20 pages excluding chronology and list of authorities

- practice note is an attachment

• Rule 15: Labour Appeal Court as court of first instance

- limited to ‘if a matter is of national importance or affects all or a majority of employers and/or employees within a single or multiple industries’

- additional provision that the decision of the JP is final and reasons for decision need not be given

• Miscellaneous

- addition of dies non from 16 December to 15 January - service by email instead of fax - shorter terms

No preliminary issues in a statement of response

Deliver Statement of Response and Counterclaim if any

REFERRALS FOR ADJUDICATION

Statement of Claim

10 days / 20 days for State

Notice of Intention to Defend

15 days

Take one of the following steps

If dispute regards a dismissal of 10 or more employees seeking reinstatement, the plaintiff may request fast tracking by letter

Exception / Special Plearequest Registrar to set exception / special plea down for hearing

Deliver notice to remove the cause of complaint if vague / embarrassing

Deliver application to strike out and request registrar to set it down on the interlocutory roll

REFERRALS FOR ADJUDICATION (cont)

15 days

10 days

Deliver an exception

The plaintiff delivers a replication to the statement of response and a statement of response to any counterclaim

10 days

The plaintiff in reconvention delivers a replication in reconvention

An application for default judgment can be made after the expiry of the time for filing a statement of response (Rule 21) Failure to deliver any pleadings may result in a notice of bar requiring the party in default to deliver the bar within 5 days of notice being delivered or be ipso facto barred (Rule 16 r.w Rule 17)

AFTER CLOSE OF PLEADINGS (RULE 18)

10 days after

15 days

The plaintiff must index and paginate (Rule 29)

20 days prior

The parties must hold a pretrial conference (Rule 22)

Certificate of trial readiness

The registrar to enrol trial for hearing

PRIOR TO TRIAL

Notice of intention to call an expert (if required)

10 days prior

The plaintiff’s representative must file a practice note (i.c.w Rule 31)

No condonation application for the late delivery of an answering and replying affidavit necessary unless a valid notice of objection is received as per Rule 36(2) and (3)

REVIEW APPLICATIONS : RULE 37

Notice of Motion and Founding Affidavit

The decision maker to dispatch the record to the registrar

10 days

The registrar must notify applicant when record is ready for collection

The applicant must collect the record

5 days

The applicant may request the respondent to consent to an extension in time which must be given in writing and filed with the registrar If consent is refused application for an extension must be made to the JP

If the decision maker fails to provide the record, any party can apply to compel the decision maker to dispatch the record

REVIEW APPLICATIONS : RULE 37 (cont)

The applicant must transcribe, copy and serve and file record or application is deemed to be withdrawn

5 days

60 days (provided full record is dispatched)

The applicant must serve a notice standing by the notice of motion or supplement the application

10 days

The respondent must deliver a notice of opposition and an answering affidavit

5 days

REVIEW APPLICATIONS : RULE 37 (cont)

The applicant must file a reply

AFTER CLOSE OF PLEADINGS

10 days after

The applicant must index and paginate the papers Rule 29(1)

10 days thereafter

The applicant must apply for a hearing date Rule 37(25)

15 days after

The applicant must file heads of argument

PRIOR TO THE HEARING

10 days prior to hearing

The applicant must file a practice note i.c.w Rule 31)

15 days prior to hearing

The respondent must file heads of argument Rule 40(4)

APPLICATIONS GENERALLY : RULE 35

Notice of Motion and Founding Affidavit

The applicant may deliver a letter to the JP for case management 10 days

A Notice of Opposition and an Answering Affidavit 5 days

Replying Affidavit

No condonation application for the late delivery of an answering and replying affidavit necessary unless a valid notice of objection is received as per Rule 36(2) and (3)

statutory rights and obligations

labour relations act

individual misconduct

self-incrimination at disciplinary process

4.1.1.2 Ramthlakgwe v Modimolle-Mookgopong Local Municipality and Another (2023) 34 SALLR 365 (LC)

workbook p 60

relationship between evidence presented at disciplinary and criminal proceedings?

prosecution is not to commence without a reasonable and probable cause to believe that the accused is guilty of the offence (Beckenstrater v Rottcher (A))

prosecution is to cease if the evidence falls below that threshold

it will be achieved if the prosecution has exhausted the evidence and conviction is no longer possible, except by self-incrimination

self-incrimination at disciplinary process (cont)

4.1.1.2 Ramthlakgwe (cont)

workbook p 60 considerations:

Ÿ the state must, on its own and independently of the accused, lead evidence justifying conviction

Ÿ that evidence excludes any evidence given by the accused in civil proceedings – apart from considerations of admissibility

Ÿ the state may not supplant evidence (in civil proceedings), given by the accused or against the accused, into a criminal trial

Ÿ any self-incriminating evidence given at a disciplinary enquiry is not automatically advisable at a criminal trial – in fact, the accused may object to being cross-examined on what he said at a disciplinary enquiry

Stellenbosch Farmers’ Minery Grand Ltd and Other v Motell & Cie 2003 (1) SA11 (SCA)

Sasol Mining v CCMA and Others (2010) 21 SALLR 55 (LC)

Assmang LTD v CCMA and Others (2015)26 SALLR 98 (LC); (2015) 36 ILJ 2203 (CC); [2015] 6 BLLR 589 (CC)

NUM v Marley Pipe Systems (2020) 31 SALLR 158 (LC); (2020) 41 ILJ 2175 (LC)

Shoprite Checkers v JL (2022) 33 SALLR 15 (LC)

workbook p 342

factor 1: credibility of witnesses

factors:

§ conduct and demeanour in the witness box

§ bias (latent or patent)

§ internal contradictions in evidence

§ external contradictions

• with other witnesses

• what was pleaded

• what was put on his behalf

§ probability or improbability of aspects of his version

§ calibre and cogency of evidence as compared to other witnesses testifying about same incident/event

Stellenbosch Farmers’ Minery Grand Ltd and Other v Motell & Cie 2003 (1) SA11 (SCA)

Sasol Mining v CCMA and Others (2010) 21 SALLR 55 (LC)

Assmang LTD v CCMA and Others (2015)26 SALLR 98 (LC); (2015) 36 ILJ 2203 (CC); [2015] 6 BLLR 589 (CC)

NUM v Marley Pipe Systems (2020) 31 SALLR 158 (LC); (2020) 41 ILJ 2175 (LC)

Shoprite Checkers v JL (2022) 33 SALLR 15 (LC)

workbook p 342

factor 2: reliability of witnesses

factors:

§ bias (latent or patent)

§ external contradictions

• with other witnesses

• what was pleaded

• what was put on his behalf

§ probability or improbability of aspects of his version

§ opportunities to experience or observe the event in question

§ quality, integrity and independence of recall

Stellenbosch Farmers’ Minery Grand Ltd and Other v Motell & Cie 2003 (1) SA11 (SCA)

Sasol Mining v CCMA and Others (2010) 21 SALLR 55 (LC)

Assmang LTD v CCMA and Others (2015)26 SALLR 98 (LC); (2015) 36 ILJ 2203 (CC); [2015] 6 BLLR 589 (CC)

NUM v Marley Pipe Systems (2020) 31 SALLR 158 (LC); (2020) 41 ILJ 2175 (LC)

Shoprite Checkers v JL (2022) 33 SALLR 15 (LC)

workbook p 342

factor 3: the probabilities

§ analysis and evaluation of the probabilities and improbabilities of each party’s version in respect of each disputed issue

factor 4: determine whether party burdened with onus has succeeded in discharging it

resolving disputes of fact in motion proceedings

test formulated in Plascon-Evans v Van Riebeeck Paints 1984 (3) SA 623 (A) applied in: Thebe Ya Bophelo Healthcare Administrators v National Bargaining Council for Road Freight Industry 2009 (3) SA 187 (W)

Benyon v Rhodes University [2017] 4 BLLR 423 (ECG)

workbook pp 8, 10, 344, 445

Ÿ the facts averred in applicant’s affidavit, admitted by respondent, with facts alleged by respondent, must justify order

Ÿ unless:

1. the dispute is not real or genuine (on the basis of a bare denial) or

2. the denials in the respondent’s version are bald and uncreditworthy or Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA)

3. the respondent’s version raises obvious fictitious disputes of fact or

4. the respondent’s version is palpably implausible or farfetched or so clearly untenable that the court is justified in rejecting that version

§ National Scrap Metal (Cape Town) v Murray and Roberts 2012 (5) SA 300 (SCA)

§ Ndudane v Premier of Eastern Cape (2022) 33 SALLR 6 (ECB)

§ National Director of Public Prosecutions v Zuma 2009 (2) SA 279 (SCA)

4.1.1.5

review test

National Union of Metalworkers of SA v CCMA and Others (2023) 34 SALLR 363 (LC)

workbook p 83

Quest Flexible Staffing Solutions (Pty) Ltd v Lebogote (2015) 36 ILJ 968 (LAC); Securities Specialised Services v CCMA (2021) 42 ILJ 1071 (LAC)

to be set aside on review, both the reasons and the result of the award must be unreasonable whether the result is unreasonable?

Ÿ broadly evaluate the merits of the dispute

Ÿ if the reasoning is found to be unreasonable, can the result nevertheless be justified on reasons other than given by the arbitrator?

Ÿ the result will be unreasonable if it is disconnected with the evidence, unsupported by any evidence, contrary to relevant evidence and involves speculation by the arbitrator an award will be reasonable if there is a material connection between the evidence and the result – the result is reasonably supported by the evidence

Herholdt v Nedbank [2012] BLLR 1074 (SCA)

Gold Fields Mining v CCMA [2014] 1 BLLR 20 (LAC)

review test (cont)

4.1.1.5 National Union of Metalworkers of SA (cont)

workbook p 83

Bestel v Astral Operations Ltd [2011] 2 BLLR 129 (LAC)

an arbitrator’s finding would be unreasonable if:

Ÿ it was unsupported by evidence

Ÿ it was based on the arbitrator’s speculation

Ÿ it was disconnected from the evidence presented

Ÿ it was supported by evidence that was insufficiently reasonable to justify the decision or

Ÿ it was made in ignorance of evidence not contradicted

negligence considerations

4.1.1.5 National Union of Metalworkers of SA (cont) workbook p 83 difference between negligence and gross negligence?

Ÿ firstly, establish negligence wrt Mukheiber v Rooth 1999 (3) SA 1065 (SCA) (workbook p 88)

Ÿ secondly, if established, gross negligence is a matter of degree, wrt various factors, eg

– whether negligence is persistent

– seriousness of the act/omission

– whether the act/omission is inexcusable

– the employee’s awareness of the performance standard required or the procedure to be complied with

– seriousness of the consequences of the act/omission

– damages caused

– skills/experience of the employee

– position held by the employee

test for negligence

workbook pp 40, 88

original test

Kruger v Coetzee 1966 (2) SA 428 (A)

whether a reasonable person, in position of defendant, would have foreseen possibility of conduct causing harm?

whether a reasonable person would have guarded against it, no negligence and defendant failed to take such steps?

test for negligence (cont)

development

Mukheiber v Raath 1999 (3) SA 1065 (SCA) workbook p 88

whether a reasonable person in the position of the defendant

- would have foreseen harm of the general kind actually occurred?

YES

– no negligence

- would have foreseen the general kind of causal sequence by which the harm occurred?

– no negligence

test for negligence

- would have taken steps to guard against it?

YES

- did the defendant fail to take such steps?

YES negligent conduct

NO – no negligence whether a reasonable person in the position of the defendant

NO – no negligence

misconduct: duty to disclose

NUMSA v Dunlop Mixing and Technical Services (2019) 30 SALLR 2 (CC) workbook pp 97 and 98 rejected?

• employee, innocent of actual perpetration of misconduct, elects not to disclose information, guilty of derivative misconduct

• based on trust and confidence – unilateral duty of good faith towards employer

• mere knowledge triggers duty, without employer’s request

• justification not to disclose not a defence, but mitigating factor

NUMSA v Dunlop Mixing and Technical Services (supra) workbook pp 97 and 98 what remained?

• Western Platinum Refinery v Hlebela (2015) 26 SALLR 11 (LAC)

- employer must prove guilt, on a balance of probabilities - common purpose and derivate misconduct mutually exclusive? § however, subsequently NUMSA v Marley Pipe Systems (2022) 33 SALLR 22 (CC) –principles of derivative misconduct also applicable to common purpose - actual knowledge of primary misconduct is required (negligent ignorance not enough)

disclose

National Union of Metal Workers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others (2019) 30 SALLR 2 (CC) workbook pp 97 and 98

in casu: employee not present at the scene of the primary misconduct

cannot be based on a unilateral fiduciary duty (duty of good faith) to disclose known information of misconduct

duty to disclose

can be based on a reciprocal contractual duty of good faith eg before requiring disclosure employer:

• provide guarantee for safety

• provide protection before, when and after disclosure

evidence (direct or circumstantial) that employee associated himself with the misconduct before it commenced or even after it ended, may be sufficient to establish complicity in the primary misconduct (accessory after the fact)

− presence at the scene not necessary requirement

− prior or subsequent knowledge of the misconduct, and the necessary intention in relation to associate, will be sufficient

NUM v Marley Pipe Systems (2022) 33 SALLR 22 (CC)

derivative misconduct

4.1.1.6 Hollywood Sportsbook Gauteng v CCMA (2024) 35 SALLR 125 (LC)

workbook p 94

relying on Dunlop Mixing (CC) found that a derivative misconduct approach is not applicable in the following circumstances:

Ÿ if the employee himself/herself participated in the misconduct

Ÿ if the employer was aware of the identity of the perpetrator(s)

Ÿ if the employer had the means to establish the identity of the perpetrator(s)

African Meat Industry v Shave and Gibson Packaging (2024) 45 ILJ 79 (LC)

collective misconduct

misconduct / incapacity non-simpliciter

WORKPLACE RULE

BREACH

+ mens rea + wrongfulness

misconduct

bona fide and reasonable suspicion

Ascot Diamonds (1993) 4 (8) SALLR 15 (IC)

Von Stein (1994) 5 (4) SALLR 14 (IC)

Patu (1997) 8 (11) SALLR 1 (CCMA)

operational requirements

Pep Stores (1998) 9 (5) SALLR 14 (LC)

team misconduct

Snip Trading (2001) 12 (7) SALLR 22 (Arb)

Foschini Group (2010) 21(3) SALLR 1 (LAC)

True Blue Foods (2014) 25 SALLR 606 (LC)

common purpose

Chauke v Leeson Motors (1998) 19 ILJ 1441 (LAC)

SAMWU (2011) 22 SALLR 145 (LC)

Makhubela [2017] 12 BCLR 1510(CC)

Marley Pipe Systems (2022) 33 SALLR 22 (CC)

derivative misconduct

- mens rea + wrongfulness

incapacity

incapacity

poor work performance

Pep Stores (2000) 11 (7) SALLR 58 (CMA)

supervening impossibility of performance

Samancor (2011) 32 ILJ 1618 (SCA)

XMolehe (2019) 40 ILJ 2584 (LC)

FAWU v Amalgamated Beverage Industries (1994) 15 ILJ 1057 (LAC)

Chauke v Leeson Motors (1998) 19 ILJ 1441 (LAC)

Western Platinum Refinery (2015) 26 SALLR 11 (LAC)

strike scenario

NTM v PRASA (2018) 39 ILJ 560 (LAC)

Dunlop Mixing (2019) 30 SALLR 2 (CC)

• imprisonment

• military call-up

• closed shop

• legal prohibition on employment

failure to comply: statutory requirements

FNB (2017) 38 ILJ 2545 (LC)

Armscor (2018) 29 SALLR 16 (LAC)

items 10 and 11 of schedule 8

incapacity

supervening impossibility of performance

Bosasa (2016) 37 ILJ 2172 (CCMA)

withdrawal of access/ security permit

items 8 and 10 of schedule 8

natural justice requirement

duty to consult

alternative(s) to dismissal

NUMSA v Marley Pipe Systems 2023 (1) SA 338 (CC); (2022) 33 SALLR 22 (CC)

Workbook p 107

a. starting point

S v Mgedezi 1989 (1) SA 687 (A)

• common purpose principles where person is present at scene of misconduct:

- must be aware of misconduct

- must have intended to make common purpose with the actual perpetrators

- must have manifested his sharing of common purpose with actual perpetrators by himself performing some act of association

- require mens rea: intention or foreseeability of possibility of misconduct and reckless as to whether or not misconduct takes place

purpose misconduct (cont)

NUMSA v Marley Pipe Systems (supra) (cont)

workbook p 107

b. to attract liability or establishing complicity: presence at the scene not a requirement

• Dunlop Mixing (CC): requirements for derivative misconduct

- evidence (direct/circumstantial) that employee associated himself with the misconduct

- before it commenced or after ended - presence at scene not required

- prior or subsequent knowledge of misconduct required

- intention to associate required

common

NUMSA v Marley Pipe Systems (supra) (cont)

workbook p 107

c. what was stated in Dunlop Mixing (CC) [derivative misconduct] also applicable to common purpose

d. bystanders present at scene of misconduct not guilty on basis of common purpose, if no proof:

- of complicity in the misconduct (including proof of guilt on the basis of common purpose)

- Polyoak v CWIU (1999) 20 ILJ 392 (LC): common guilt not part of our law

e. Oak Valley Estates (CC) principles not applicable in casu

- interdict versus common purpose

- interdict: failure to take positive steps to disassociate with group, may be subject to interdict

f. conclusion

- mere presence and watching in non-compliance with requirements of Dunlop (CC) and Mgedezi (A)

- evidence (direct/circumstantial):

(i) association with misconduct (before, during or after)

(iii) shared common purpose with perpetrator by himself performing some act of association

common purpose doctrine

4.1.2.1

National Union of Public Service and Allied Workers obo Lutendo v CCMA (2024) 35 SALLR 127 (LC)

workbook p 102

reasoning in Marley Pipe Systems (CC) amounts to:

* ‘being there’ does not constitute association

* evidence (direct or circumstantial) requires that the employee in some form or another, associates himself/herself with the misconduct (before it commenced, during or after it ended)

* the employee had to perform some action of association with the unlawful conduct

* the necessary intention to associate is required

* singing during an assault is not enough to establish an action of association

requirements to obtain interdict against unlawful conduct during strike

Commercial Stevedoring Agricultural and Allied Workers’ Union v Oak Valley Estates (2022) 33 SALLR 49 (CC)

• scenario: lawful assembly, demonstrate, picket, present petition, strike + unlawful conduct + interdict to restrain conduct

• requirements: final interdict:

- clear right - injury actually committed or reasonably apprehended?

- absence of alternative remedy

Setlogelo v Setlogelo 1914 AD 221

• reasonable apprehension of injury test: if evidence is insufficient to establish any link between respondent and actual or threatened injury, reasonable apprehension of injury not established

Minister of Law and Order v Nordien 1987 (2) SA 894 (A)

requirements to obtain interdict against unlawful conduct during strike (cont)

• is mere participation in strike, etc sufficient to establish link? – if so, innocent bystanders in web and not good enough to escape subsequently in negative contempt finding

• whether link exists is a factual question:

→ ongoing, widespread and manifest: link established if respondent does not disassociate

• principle not applicable in common purpose misconduct

NUMSA v Marley Pipe Systems (2022) 33 SALLR 22 (CC)

→ strike substantially peaceful, isolated + sporadic unlawful actions: link established if association proved

→ responsible for unlawful conduct: link established

incapacity (poor work performance and ill-health

injury) dismissals

operational requirements dismissals

severance pay claims

4.1.5.1 National Union of Metalworkers of SA v Scaw (Pty) Ltd (2023) 34 SALLR 346 (GJ)

workbook p 117

employee contractually entitled to severance pay in excess of minimum (s41(2) of the BCEA) and other severance benefits over and above same (e g ex gratia payment)

HC jurisdiction over pleaded case entailing breach of contractual obligations demand for severance pay (minimum or in excess) subject to s41 of the BCEA, e g

s41(4) applicable: employer avoids liability if employee unreasonably refused alternative employment that would have avoided retrenchment

HC cannot determine entitlement to severance pay (wrt s41(6) of the BCEA) only bargaining council or CCMA (in respect of minimum entitlement or greater contractual entitlement) equally so applicable to s41(4) of the BCEA defence

substantive fairness challenge ito s189A(7) of the LRA

4.1.5.2 National Union of Metalworkers of SA obo Member v SAA Technical (Pty) Ltd (2023) 34 SALLR 364 (LC)

workbook p 124

Ÿ employer initiated an s189A process by issuing a s189(3) notice

Ÿ CCMA facilitated

Ÿ at the conclusion of the facilitation, the employer gave notice to terminate contracts

Ÿ requirements to be met before employee can file statement of claim challenging substantive fairness, ito s189A(7)(b)(ii)?

① referral of dispute to CCMA/BC

②

s191(5): certificate of non-resolution or 30 days (or extension period agreed upon) passed after referral to CCMA/BC

③ s191(11): to be referred within 90 days of the ‘trigger event’

Ÿ NUMSA v Driveline Technologies (2000) 21 ILJ 142 (LAC)

Ÿ Catering Pleasure and Food Workers Union v National Brands (2007) 28 ILJ 1064 (LC)

Ÿ South Africa Equity Union v Lodestone Confectionary PS19/16

Ÿ Bell Equipment v Intervalve (2015) 36 ILJ 363 (CC)

retrenchments and merger conditions

4.1.5.3 Coca-Cola Beverages Africa (Pty) Ltd v Competition Commission (2024) 35 SALLR 112 (CC) workbook p 132 determine the true reasons for the retrenchment

aimed to remove duplicate roles due to merger driven by other factors, e g rising input costs if so: in breach of merger conditions if so, not in breach

retrenchments and merger conditions (cont)

4.1.5.3 Coca-Cola (cont) workbook p 132

test

factual causation: first enquiry – but for the merger would the retrenchments have taken place?

YES: move to second enquiry

NO: end of enquiry

legal causation: second enquiry – what is the proximate, real or dominate cause of the retrenchments?

to remove duplicate roles due to merger? driven by other factors?

dismissals: s187(2)(b) automatically unfair

miscellaneous terminations

unfair labour practices

collective bargaining

collective bargaining

4.3.1.1 EFF v Brightstone Trading 3 CC t/a Gordon Road Spar and Others (2023) 34 SALLR 349 (LAC)

workbook p 207

4.3.1.2 Gas Giants CC and Another v EFF (2023) 34 SALLR 345 (GP)

workbook p 210 role of political parties

liability of party:

failure to investigate conduct or officials and members failure to take action

actual authority: (express/implied)

interim and final interdict justified or ostensible (apparent) authority: Gas Giants v EFF (GP) principal creates impression that agent binds it

Ÿ Makate (CC)

Ÿ Western Platinum (LAC)

Ÿ Northern Metropolitan Local Council (SCA)

Ÿ EFF v Spar (LAC)

judgment/order/award interpretation

4.3.3.2.1 Coetzee v Member of the Executive Council for the Department of Health, Western Cape Provincial Government and Others (2024) 35 SALLR 123 (LC) workbook p 262 approach to be adopted to interpret the meaning of a judgment/order/CCMA or bargaining council award? the intention of the court/CCMA/bargaining council (forum) must be ascertained primarily from the language of the judgment/order/award the judgment/order/award and the reasons must be read to ascertain the intention of the forum if, on such reading, the document is clear and unambiguous, no extrinsic evidence or fact is admissible to contradict, vary, qualify or supplement it of course, different considerations apply when, not the construction, but the correction, of the document is sought – e g appeal, review, etc if uncertainty in meaning exists, extrinsic circumstances surrounding or leading up to the granting of the judgment/ order/award may be investigated in order to clarify

4.3.3.2.1 Coetzee (cont)

workbook p 262

approach to be adopted to interpret the meaning of a judgment/order/CCMA or bargaining council award? (cont)

if, despite this, the uncertainty persists, other relevant extrinsic facts or evidence is admissible to resolve uncertainty

Firestone South Africa v Genticuro 1977 (4) SA 298 (A)

Administrator, Cape and Another v Ntshwaqela 1990 (1) SA 705 (A)

the order must be read as part of the entire document and not as a separate document

however: the forum’s directions must be found in the order if the meaning of the order is clear and unambiguous: it cannot be restricted or extended by anything else in the document

interest on an amount that a person is obliged to pay in terms of a collective agreement

4.3.3.2.1 Coetzee (cont)

workbook p 262 award of interest ito s33A(9) of the LRA

in duplum rule not applicable

compound interest?

• not as a matter of law simple interest?

• starts to run from the date the amount is due and payable, unless award provides otherwise

s21(8C)(b) of the LRA: a commissioner may grant s12, s13 or s15 organisational rights if the registered trade union(s) does not meet the threshold contained in s18 agreement, but the union (or coalition of unions) represents a significant interest or substantial number of employees in the workplace

4.3.3.4.1 Anglo American Coal v CCMA (2023) 34 SALLR 355 (LC)

workbook p 274

industrial action

workbook p 280

Blinkwater Mills (Pty) Ltd v FAWU (2020) 31 SALLR 161 (ML); (2020) 41 ILJ 873 (ML)

unprotected strike/lockout/ conduct in contemplation or furtherance

loss attributable

statutory (LRA) cause of action

just and equitable wrt factors in s68(1)(b)

LC exclusive jurisdiction: Rustenburg

Platinum Mines v Mouthpeace Workers

Union (2001) 22 ILJ 2035 (LC)

protected strike/lockout losses attributable

s68(1)(b) of LRA not applicable

contra: SACCAWU v Massmart (2024) 35

SALLR 119 (LAC)

no statutory cause of action

delictual claim requirements:

•loss caused by unlawful, intentional/ negligent act or omission

•recover full extent of loss

Motor Industry Staff Assoc v Macun 2016 (5) SA 76 (SCA)

delictual claim not permitted

an order for the payment of compensation for loss occurred on the basis of conduct in contemplation or furtherance of a strike or lock-out

4.4.1.1 SACCAWU v Massmart Holdings (2024) 35 SALLR 119 (LAC)

workbook p 280

unlawful conduct in furtherance of strike or lock-out protected strike/lock-out

s197 of the LRA

s197 of the LRA workbook p 298

applicability of s197 to outsourcing, insourcing, changes in service providers, etc

most recent CC: Road Traffic Management Corporation v Tasima; Tasima v Road Traffic Management Corporation (2020) 41 ILJ 2349 (CC); [2020] 12 BLLR 1173 (CC)

• 3 conditions simultaneously to be met:

- transfer - business (or part) - as a going concern

• Aviation Union of SA v SA Airways 2012 (1) SA 321 (CC); (2011) 32 ILJ 2861 (CC)

- whether s197 is applicable is a factual question

the concept of a business, inclusive of a business that supplies the service (or part thereof)

City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd and Others (2014) 35 ILJ 2757 (LAC); [2014] 10 BLLR 945 (LAC); (2014) 25 SALLR 66 (LAC)

upheld on appeal: City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd and Others (2015) 36 ILJ 1423 (CC); [2015] 8 BLLR 757 (CC); (2015) 26 SALLR 1 (CC)

determine whether, on the facts:

s197 OF THE LRA (cont)

the concept of a business, inclusive of a business that supplies the service (cont) (or part thereof)

• the activities conducted by one party

• constitute a defined set of activities

• which represent an identifiable, autonomous and discrete business undertaking (defined as: an organised group of persons and assets facilitating the pursuit of an economic activity that promotes a specific objective – economic entity approach)

• so that when termination of an agreement takes place

• it can be said that such set of activities, which constitute a discrete business undertaking

• have been taken over by another party followed in:

3. Dimension Data v GWB (2022) 33 SALLR 2 (LC)

1. TMS Group Industrial Services (Pty) Ltd t/a Vericon v Unitrans Supply Chain Solutions (Pty) Ltd and Others (2015) 36 ILJ 197 (LAC); [2014] 10 BLLR 974 (LAC); (2014) 25 SALLR 496 (LAC)

2. Communications Workers Union and Others v Mobile Telephone Networks (Pty) Ltd and Another [2015] ZALAC 8

s197 OF THE LRA (cont)

business could consist of a variety of components (tangible and intangible):

• goodwill

• management

• general workforce

• premises

• a name

• contracts with clients

• contracts with suppliers, etc

• operating methods

s197 OF THE LRA (cont)

• must be:

- sufficiently connected to one another

- to form an economic entity

- capable of being transferred

- as a going concern

Tasima (CC)

• difference between legal entity and concept of business (which does not necessarily refer to business)

Dimension Data (LC) referring to Tasima (CC)

s197 OF THE LRA (cont)

the concept of a transfer [of a business, inclusive of a business that supplies the service]

Aviation Union of South Africa and Another v South African Airways (Pty) Ltd and Others 2012 (1) SA 321 (CC)

1. does the transaction create rights and obligations that require one entity to transfer something in favour of or for the benefit of another or to another?

2. if so, does the obligation imposed in the transaction contemplate two parties, namely, a transferor with the obligation to effect a transfer or allow a transfer to take place, and a transferee, who receives the transfer?

3. if so, then the transaction contemplates transfer by the transferor to the transferee; and

4. provided the transfer amounts to a business as a going concern, s197 of the LRA is applicable

followed in: City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd and Others (2014) 35 ILJ 2757 (LAC); [2014] 10 BLLR 945 (LAC); (2014) 25 SALLR 66 (LAC) upheld on appeal: City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd and Others (2015) 36 ILJ 1423 (CC); [2015] 8 BLLR 757 (CC); (2015) 26 SALLR 1 (CC) see further: TMS (LAC) referred to in Dimension Data (LC)

the concept of a going concern

NEHAWU v University of Cape Town (2003) 24 ILJ 95 (CC); 2003 (3) SA 1 (CC)

• phrase is not defined in the LRA

• phrase must be given its ordinary meaning, unless the context indicates otherwise

• what is transferred must be a business in operation ‘ so that the business remains the same but in different hands’

• whether it took place, is a matter of fact, determined objectively, in the light of the circumstances of each case

• regard must be had to the substance and not the form of the transaction

the concept of a going concern (cont)

NEHAWU judgment (CC) and Hydro Colour Inks v CCEPAWU [2011] 7 BLLR 637 (LAC): non-exhaustive list of factors and none individually decisive 1. goodwill of the business 2. stock-in-trade of the business

3. premises of the business 4. contracts with clients or customers 5. the workforce

the assets of the business 7. the debts of the business

TMS (LAC): whether handed over in a state sufficient to carry on previous activity, using client’s IT and other equipment

8. whether an interruption of the operation of the business occurred

9. if so, the duration of the interruption

10. whether same or similar activities are continued after the transfer

the above approach:

the concept of a going concern (cont)

• followed that of the European Court of Justice in the application of the Business Transfers Directive (2001/23/EC) applicable to the European Union

• this entailed a determination as to whether that entity retained its identity after the transfer, that is, the transferee had to carry on same or similar activities without substantial interruption

• see: Spijkers v Gebroeders Benedik Abattoir CV (1986) CMLR 296; Carlito Abler v Sodhexo MN Catering Gesellshaft GmbH (2004) IRLR 168 (ECJ) and Unitrans Supply Chain Solutions v Nampak Glass [2014] 10 BLLR 945 (LAC))

the concept of a going concern (cont) followed in:

• City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd and Others (2014) 35 ILJ 2757 (LAC); [2014] 10 BLLR

945 (LAC); (2014) 25 SALLR 66 (LAC)

• TMS Group Industrial Services (Pty) Ltd t/a Vericon v Unitrans Supply Chain Solutions (Pty) Ltd and Others (2015) 36 ILJ

197 (LAC); [2014] 10 BLLR 974 (LAC); (2014) 25 SALLR 496 (LAC)

• SAMWU v Rand Airport Management Co (Pty) Ltd [2005] 3 BLLR 241 (LAC)

s197 OF THE LRA

going concern considerations wrt change in service providers

Tasima (CC) with reference to Aviation Union (CC)

• business that delivers service must have changed hands – the business continues to operate after the transfer

• proof that the same or similar services continue, in different hands, does not establish the required transfer of the business as a going concern

Dimension Data (LC)

• going concern transfer on the following facts:

- access to infrastructure, technology, know-how, institutional knowledge

- on the same premises

apply snapshot test: compare snapshot of business before and after transfer – if substantially the same, but just in different hands, then going concern requirement met

s197 of the LRA

4.5.1.1 MTN v CCI (2023) 34 SALLR 350 (LAC)

workbook p 298

5 critical questions to be answered to determine whether s197 applies

Ÿ can the business that is alleged to have been transferred be recognised as such because it retained its identity post-transfer? – same business as before the alleged transfer but in new hands?

Ÿ what components of the old business are visible which are now in the hands of the alleged new owner?

Ÿ in a labour-intensive business, has the critical mass of workers moved over to the alleged new owner?

Ÿ what assets (of whatever kind) were possessed by the old owner and are now in the hands of the alleged new owner?

Ÿ what influence does the agreement between the principal and initial outsourcee have on the determination?

Aviation Union of South Africa v SA Airways 2012 (1) SA 321 (CC)

NEHAWU v University of Cape Town 2003 (3) SA 1 (CC)

s197 of the LRA (cont)

4.5.1.1 MTN (cont)

workbook p 298

the elements of the objective existence of the required commercial reality for s197 to be applicable: i e a business transferred as a going concern, leading to job protection:

Ÿ a discrete business unit in the hands of the former owner (i e a business which performs a service, not the service itself, the unit being discernible by a grouping of workers set about a common objective)?

Ÿ which business is, as a fact, transferred from one owner to another?

Ÿ which business is a going concern at the time of the transfer (i e has intrinsic productive capacity)?

Ÿ which is recognisable as that going concern in the hands of the subsequent owner (i e retains the character of the initial business unit)?

NEHAWU v University of Cape Town 2003 (3) SA 1 (CC)

miscellaneous topics

traditional approach

different types of proprietary interests worthy of protection

Continuous Oxygen Suppliers judgment

Experian South Africa (Pty) Ltd v Haynes and Another 2013 (1) SA 135 (GSJ)

Aquatan (Pty) Ltd v Jansen van Vuuren and Another (2017) 38 ILJ 2730 (LC); (2017) 28 SALLR 65 (LC)

• trade connections – relationships with customers, potential customers, suppliers and others

test to determine trade connection

- whether there is a connection between the employee and the customer, etc

- able to induce the customer, etc to follow the employee

Rawlins v Caravan Truck (Pty) Ltd 1993 (1) SA 537 (A)

Esquire System Technology v Cronje (2011) 32 ILJ 601 (LC)

Experian SA v Haynes (2013) 34 ILJ 529 (GSJ)

Vumatel (Pty) LTD v Marja (2018) 39 ILJ 2771 (LC); (2018) 29 SALLR 32 (LC)

different types of proprietary interest worthy of protection (cont)

•trade secrets – all confidential matter, if used by a competitor, would give it a relative competitive advantage – Sibex Engineering

Services (Pty) Ltd v Van Wyk 1991 (2) SA 482 (T)

test to determine trade secret

information:

- must be useful (capable of application in trade or industry)

- not public knowledge and property

- known to a restricted number of people

- economic value to the employer

Experian SA (Pty) Ltd v Hayes and Another (2013) 34 ILJ 529 (GSJ)

Vumatel (Pty) LTD v Marja (2018) 39 ILJ 2771 (LC); (2018) 29 SALLR 32 (LC)

Townsend Productions v Leech 2001 (4) SA 33 (C)

Mossgas v Sasol [1999] 3 All SA 32 (W)

restraint of trade agreements

5.1.1 Sadan and Another v Workforce Staffing (2023) 34 SALLR 352 (LAC)

workbook p 313

Ÿ restraint of trade agreements are valid, binding and enforceable, unless their enforcement would be unreasonable

Alloys v Ellis 1984 (4) SA 874 (A)

Magna

5.1.1 Workforce Staffing (cont)

workbook p 313

restraint of trade agreements (cont)

the test to determine reasonableness

does the one party have an interest that deserves protection after termination of the agreement? = 1st consideration

is that interest threatened or being prejudiced by the other party? – 2nd consideration

if so, does that interest weigh qualitatively and quantitatively against the interest of the other party not to be economically inactive and unproductive? – 3rd consideration

is there an aspect of public policy having nothing to do with the relationship between the parties that requires the restraint to be maintained or rejected? – 4th consideration

Basson v Chilwan 1993 (3) SA 742 (A)

5.1.1 Workforce Staffing (cont)

workbook p 313

restraint of trade agreements (cont)

the test to determine reasonableness (cont)

5th consideration: whether the restraint goes further than necessary to protect the interest?

entails: whether the restraint is, in essence, reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom

Reddy v Siemens Telecommunications 2007 (2) SA 486 (SCA)

VICARIOUS LIABILITY OF THE EMPLOYER

general principle: employer is vicariously liable for wrong committed by employee during course/scope/sphere of employment

Feldman v Mall 1945 AD 733

deviation matters: where employee commits wrong entirely for own purposes – general principle not applicable

Minister of Police v Rabie 1986 (1) SA 117 (A)

further developed in K v Minister of Safety and Security 2005 (6) SA 419 (CC)

VICARIOUS LIABILITY OF THE EMPLOYER (cont)

test to determine vicarious liability in deviation matters

step 1: determine whether the subjective intention of the perpetrator was to act solely for his/her own interests

• factual assessment

step 2: if so, determine objectively whether the wrong committed is sufficiently connected to the business of the employer

• mix of factual assessment and law

VICARIOUS LIABILITY OF THE EMPLOYER (cont)

when would a sufficiently close link exist?

• starting point: link not established when business of the employer furnished employee the mere opportunity to commit the wrong

• something more than mere opportunity is required to establish the required causal link

• depends on:

- factual circumstances

- normative considerations relevant to each case

• the role to be played by the creation of risk of the harm by the business of the employer

Stallion Security (Pty) Ltd v Van Staden (2019) 40 ILJ 2695 (SCA); (2019) 30 SALLR 191 (SCA)

VICARIOUS LIABILITY OF THE EMPLOYER (cont)

Stallion Security (Pty) Ltd v Van Staden (2019) 40 ILJ 2695 (SCA); (2019) 30 SALLR 191 (SCA)

law as developed in Rabie and Ngobo should be further developed: recognise that creation of risk of harm (risk liability), in an appropriate case, constitutes a relevant consideration in giving rise to a sufficiently close link between the harm caused by the employee and the business of the employer relevant factors in casu:

• employer enabled employee to commit wrongs, i.e. enabled him to enter into and exit office without detection

• this created a material risk that employee might abuse his powers

• risk rendered deceased vulnerable and produced the robbery and murder

another factor: employer contractually undertook to protect the constitutional rights to personal safety of the employees of client whilst at the workplace and placed the employee in charge of this responsibility: this provides a significant normative link between the employer’s business and the harm suffered by the victim (or his/her dependents)

powers and functions of the CCMA and bargaining councils

6.1

recusal consequences at arbitration

Minister of Correctional Services v Mashiya (2023) 34 SALLR 126 (LC)

workbook p 338

arbitration

recusal application granted/suo motu

incomplete proceedings

agreement between the parties: to proceed with record

de novo required if not de novo?

misconduct/irregularity ito s145(2)(a)/s145 (2)(b)

complete proceeding

outstanding: decision

possibility to proceed with record and not de novo

S v Makgetle; S v Matlowe (HC)

Murphy (HC)

Eagle Ink (SCA)

arbitration: agreement between the parties – no oral evidence; could not agree/elected not to submit a stated case; dispute to be determined on the basis of submissions made

6.2 Fetakgomo Greater Tubatse Local Municipality v South African Local Government Bargaining Council (2023) 34 SALLR 359 (LC)

workbook p 348

agreement: no oral evidence ✔

agreement: no stated case ✖

arbitration award reviewable

further elements of order of LC

Ÿ director of CCMA in conjunction with secretary of bargaining council: urgently identify senior arbitrator to arbitrate

Ÿ governing body of the CCMA: investigate whether terms of accreditation breached

Ÿ bargaining council directed: to consider recouping arbitration fees paid to the arbitrator

costs orders and taxing

6.3 Prince v Beaufort West Municipality WCP082116

workbook p 352

before 2015

CCMA rule 39 and all bargaining council rules (including SALGBC rule 39)

costs orders of arbitrators taxed by taxing officers: magistrates’ court’s tariff

CCMA: rule 39

(a) non-legal practitioners: costs order for reasonable disbursements

(b) legal practitioner

– R6 000 for 1st day of arbitration

– R4 000 for subsequent days

– inclusive of day fees, disbursements and VAT (rule 39(4))

(c) taxing officers to determine disputes re costs order (rule 39(5))

SALGBC: rule 39

(a) "

(b) the amounts applicable to the council’s fee structure, determined by the executive committee of the central council, from time to time (rule 39(4))

(c) "

6.3 Prince (cont)

workbook p 352

costs orders and taxing (cont)

CCMA: rule 39

(a) "

(b) – R7 000 for 1st day of arbitration – R4 700 for subsequent days – inclusive of VAT

(c) no taxing officers to determine disputes re costs orders

workbook p 358

SALGBC: rule 39 (a) " (b) SALGBC rule 39(4) maintained (c) "

[SALGBC Circular 5 of 2019: effective date 1/8/2019] no subsequent changes

Ÿ costs orders granted ito s39(4) unenforceable

Ÿ no jurisdiction to tax such costs orders

Ÿ no jurisdiction to resolve disputes re costs orders

stare decisis, res judicata, issue estoppel, les alibi pendens

Meyers v National Commissioner of SAPS (2022) 33 SALLR 269 (LAC); [2022] 11 BLLR 991 (LAC)

res judicata: bound by previous judgment of competent court, between same parties, based upon same cause of action, in respect of same matter/thing

CCMA and bargaining councils bound

issue estoppel/

res judicata by implication: a previous determination, although not declared, is deemed to be an integral part of a subsequent determination, as if made in express terms doesn’t apply to CCMA and bargaining councils: only courts have power to relax ‘same cause of action’ requirement

stare decisis: follow and apply rationes decidendi of higher courts

CCMA and bargaining councils bound

lis alibi pendens: if dispute is pending elsewhere, cannot be heard in another forum

CCMA and bargaining councils bound

powers and functions of the labour and labour appeal courts

conflict between jurisprudence of labour appeal court and supreme court of appeal arising from civil matters

Roy Greyling v George Randell High School (2022) 33 SALLR 279 (LC)

not a ‘labour matter’ (common law matter) or ‘labour matter’ where final jurisdiction of LAC not confirmed

‘labour matter’

subsequent to amendment to s168(3)(a) of the Constitution

subsequent to amendment to s168(3)(a) of the Constitution: LRA confirmed final jurisdiction on LAC (s173(1)(a) of the LRA)

SCA retains appeal jurisdiction, even if LAC has adjudicated matter (being a court of similar status ito s168(3)(a))

not permitted to appeal from LAC to SCA before approaching CC

s158(1)(c): power of the labour court to make a settlement agreement an order of court

7.1 Ephraim Mogale Local Municipality v Hlongwane NO and Another (2023) 34 SALLR 357 (LC)

workbook p 366

scenario 1: parties reached a compromise and approached the LC to make it an order of court

Ÿ LC cannot mero motu play an oversight role

Ÿ no duty on LC to satisfy itself that the agreement is not objectionable

Ÿ only issue: whether it is appropriate to incorporate the terms of the agreement in an order of court

scenario 2: settlement agreement disputed

Ÿ considerations: public policy/contrary to the law/morality/improper, etc – mero motu

Eke v Parsons 2016 (3) SA 37 (CC)

Road Accident Fund v Taylor 2023 JDR 1387 (SCA)

other statutory provisions

basic conditions of employment act

pension funds act

employment equity act

national minimum wage act

12.1.1 Quantum Foods v Jacobs (2024) 35 SALLR 118 (LAC)

workbook p 464

s5(1)(c) of the NMWA excluded for calculation of wage included

Ÿ gratuities, including bonuses, tips or gifts Ÿ bonuses – no contractual obligation – contractual obligation – discretion Ÿ provident fund contributions – eiusdem generis rule applicable – not specifically excluded/included

local government: municipal systems act

Local

13.1.1 SA Municipal Workers Union v Minister of Cooperative Governance and Traditional Affairs (2024) 35

SALLR 128 (LC)

workbook p 468

until 2022: old s56A (narrow limitation)

Ÿ limitation on municipal managers and managers directly accountable to them to hold political office in a political party

2022: new s71B – commenced on 1 Nov 2022 (impugned extension)

Ÿ limitation extends to all municipal employees whatever their status

13.1.1

SAMWU (cont)

Ÿ Law Society of SA v Minister of Transport 2011 (1) SA 400 (CC): applied

– rationality threshold is established by the rule of law

– LC: measure adopted by legislature is not properly related to the public good it seeks to protect – to depoliticise and professionalise local government by eradicating political interference in municipal decision-making so as to maintain management stability and thus improve service delivery

Ÿ LC: s71B is not a justifiable limitation (ito s36(1) of the Constitution) on the right of municipal employees to make political choices and to participate in the activities of a political party (s19 of the Constitution)

– test based on reasonableness and proportionality: not complied with in casu – less restrictive means available to achieve the objectives of professionalism and improved service delivery – narrow limitation (old s56A)

– the State failed to place evidence before the court in the above regard as required (The Teddy Bear Clinic (2014) 1 SACR 327 (CC))

Thank you for your support from the CCMA and SALLR teams