CASE LAW FOR COMMISSIONERS · December 2010) and Communication Workers Union obo Segakweng v South...

CASE LAW FOR COMMISSIONERS November 2014

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CASE LAW FOR COMMISSIONERS

Third Edition

November 2014

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INDEX 1 RELEVANCE OF LRA AND LABOUR CASE LAW

1.1 The right to fair labour practice 1.1.1 NEHAWU v University of Cape Town & others (2003) ILJ 95 (CC)

Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) [2007] 12 BLLR 1097 (CC)

1.2 Determining fairness

1.2.1 National Union of Metalworkers of South Africa v Vetsak Co-Operative Ltd and others 1996 (4) SA 577 (A); 1996 17 ILJ 455 (A)

1.2.2 Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC);[2007] 12 BLLR 1097 (CC)

1.2.3 Fidelity Cash Management Services v CCMA and others [2008] 3 BLLR 197 (LAC) 1.3 Binding effect of precedents

1.3.1 Gcaba v Minister of Safety & Security & others (2010) 31 ILJ 296 (CC); [2009] 12 BLLR

680 (CC) 1.3.2 Robin Consolidated Industries Ltd v Commissioner for Inland Revenue 1997 (3) SA 654

(SCA) 1.3.3 Le Roux v CCMA & others [2000] 6 BLLR 680 (LC); Maarten & others v Rubin NO &

others [2001] 2 BLLR 162 (LC) at 168F 1.4 Deviation from previous judgments 1.4.1 Daniels v Campbell NO & others 2004 (5) SA 331 (CC)

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2 COMMENCEMENT AND TEMINATION OF EMPLOYMENT 2.1 Existence of employment relationship 2.1.1 Wyeth SA (Pty) Ltd v Manqele & others (2005) 26 ILJ 749 (LAC)

2.1.2 Phera v Education Labour Relations Council and others (201) 33 ILJ 2839 (LAC) 2.1.3 Bayat v Durban Institute of Technology (2006) 27 ILJ 188 (CCMA) 2.2 Deemed employment under section 198A of the LRAA of 2014 2.3 Deemed employment under section 198B 2.4 Resignation 2.4.1 Lottering & others v Stellenbosch Municipality (2010) 31 ILJ 2923 (LC)

2.4.2 African National Congress v Municipal Manager, George Local Municipality & others

[2010] 3 BLLR 221 (SCA) 2.4.3 Moloi v Mac Steel Service Centre (VRN Reef) [2014] 2 BLLR 117 (MEIBC) 2.4.4 CEPPWAWU & another v Glass Aluminum 2000 CC [2002] 5 BLLR 399 (LAC) 2.4.5 Solidarity and another v Public Health and Social Development Sectorial Bargaining

Council and others [2013] 4 BLLR 362 (LAC) 2.4.6 Mafika v SA Broadcasting Corporation Ltd [2010] 5 BLLT 542 (LC) 2.4.7 Quinn v Singlehurst Hydraulics (SA) Ltd [2005] 6 BLLR 673 2.4.8 Amazwi Power Products (Pty) Ltd v Turn bull [2008] 9 BLLR 817 (LAC) 2.5 Retirement

2.5.1 Rubin Sportswear v SACTWU & others (2004) 15 ILJ 1671 (LAC)

2.5.2 Cash Paymaster Services (Pty) Ltd v Browne (2006) 27 ILJ 281 (LAC) 2.5.3 SA Metal & Machinery Co (Pty) Ltd Gamaroff [2010] 2 BLLR 136 (LAC) 2.5.4 Hibbert v ARB Electrical Wholesalers (Pty) Ltd (2013) 34 ILJ 1190 (LC) 2.5.5 Schweitzer v Waco Distributors (a div of Voltex (Pty) Ltd [1999] 2 BLLR 188 (LC) 2.5.6 Botha v Du Toit Very & Partners [2006] 1 BLLR 1 (LC)

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2.5.7 Kirsten and Southern Cross Manufacturing Co Ltd t/a Southern Cross Industries (2006) 27

ILJ 271 (CCMA) 2.6 Liquidations 2.6.1 Van Zyl No & others v CCMA and others (2012) 33 ILJ 2471 (LC) 2.7 Business Rescue 2.7.1 NUMSA obo 4 Members v Motheo Steel Engineering CC (Case Number: METS3334)

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3 JURISDICTION 3.1 General 3.1.1 Gcaba v Minister of Safety & Security & others (2010) 31 ILJ 296 (CC); [2009] 12 BLLR

680 (CC) and SA Maritime Safety Authority v McKenzie [2010] 5 BLLR 488 (SCA)

3.1.2 Makhanya v University of Zululand (218/08) [2009] ZASCA 69 (29 May 2009); (2009) 8 BLLR (SCA)

3.2 Territorial jurisdiction

3.2.1 Astral Operations Ltd v Parry (2008) 29 ILJ 2668 (LAC)

3.2.2 MEC Africa (Pty) v CCMA & others (2014) ILJ 745 (LC) 3.3 Jurisdiction limited to certain parties – not independent contractors 3.3.1 Code of Good Practice: Who is an Employee? 3.4 Determining whether a dispute is an unfair labour practice or not

3.4.1 Apollo Tyres SA (Pty) Ltd v CCMA & others [2013] 5 BLLR 434 (LAC);(2013) 34 ILJ 1120

(LAC)

3.4.2 SARS v Ntshintshi & others [2013] 9 BLLR 923 (LC); (2014) 35 ILJ 255 (LC) 3.5 Unfair labour practice jurisdiction limited to an existing employment relationship 3.5.1 Sithole v Nogwaza NO & others (1999) 20 ILJ 2710 (LC); [1999] 12 BLLR 1348 (LC)

3.5.2 Velinov v University of KwaZulu-Natal & others (2006) 27 ILJ 177 (LC) 3.5.3 MEC for Tourism, Environmental & Economic Affairs, Free State v Nondumo & others

[2005] 10 BLLR 974 (LC) 3.6 Unfair labour practices perpetrated against an employer

3.6.1 NEWU v CCMA & others (2004) 2 BLLR 165 (LC) 3.7 Jurisdiction limited to certain parties – illegal workers not excluded

3.7.1 „Kylie‟ v CCMA and others (2010) 31 ILJ 1600 (LAC)

3.7.2 Discovery Health Ltd v CCMA & others (2000)5 BLLR 578 (LC) 3.8 Jurisdictional limitations - Nature of dispute

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3.8.1 De Beers Consolidated Mines Ltd v CCMA & others [2000] 5 BLLR 578 (LC) 3.9 Short time

3.9.1 SACTWU obo Ndlangisa & others v Prowood Clothing [2005] 9 BALR 936 (NBCCMI)

3.10 Upgrading of salary scales 3.10.1 Ntlabezo & Others v MEC for Education, Eastern Cape & Others [2002] 3 BLLR 274 (Tk) 3.11 Equal pay for equal work 3.11.1 Louw v Golden Arrow Bus Services (Pty) Ltd [2000] 3 BLLR 311 (LC)

3.11.2 Ntai & others v South African Breweries Ltd (2001) 22 ILJ 214 (LC) 3.11.3 Heysen v Armstrong Hydraulics (Pty) Ltd [2000] 12 BLLR 1444 (LC) 3.11.4 NUMSA and others v Gabriel (Pty) Ltd (2002) 23 ILJ 2088 (LC)

3.11.5 Transport and General Workers Union v Bayete Security Holdings 1999 (4) BLLR 401 (LC) 3.12 Victimisation 3.13 Settlement agreements 3.13.1 Dell v HPD Construction [2010] 6 BLLR 626 (LC);Molaba v Emfuleni Local Municipality &

others [2009] JOL 234 77 (LC)

3.13.2 South African Post Office Ltd v Communication Workers Union obo Permanent Part-Time Employees [2013] 12 BLLR 1203 (LAC)

3.13.3 Goci v Metropolitan Health Corporate (Pty) Ltd (C10738/2010) ;[2010] ZALCCT 25 (7

December 2010) and Communication Workers Union obo Segakweng v South African Post Office Ltd [2014] 2 BALR 172 (CCMA)

3.14 Jurisdiction when there is a settlement agreement 3.14.1 3.14.1 Hodges v Urban Task Force Investments CC and others (JR840/12) [2013]

ZALCHB 295 (7 November 2013) 3.14.2 Cook4Life CC v CCMA and others (2013) 34 ILJ 2018 (LC) 3.14.3 National Education Health & Allied Workers Union obo Nkoana v South African Nursing

Council [2013] 4 BALR 420 (CCMA)

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3.14.4 Mohale v Net 1 Applied t/a Cash Paymaster Services Northern (Pty) Ltd [2013] 2 BLLR 199 (LC)

3.14.5 CTP LTD t/a Caxton Newspapers Division v Mphaphuli N.O and others (JR501/13) [2014]

ZALCJHB 398 (14 October 2014) 3.15 Authorization to enter into the agreement 3.15.1 Fakude & others v Kwikot (Pty) (2013) 34 ILJ 2024 (LC) 3.16 Public policy 3.16.1 Barkhuizen v Napier 2007 (5) SA 323 (CC) 3.17 Duress 3.17.1 Experian SA (Pty) Ltd Haynes and another (2013) 34 ILJ 529 (GSJ) and Arend & another v

Astra Furnishers (Pty) Ltd 1974 (1) SA 1298 (C) and BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C ) and Medscheme Holdings (Pty ) Ltd & another v Bhamjee 2005 (5) SA 339 (SCA)

3.17.2 Rambado v EZ Shuttle (Pty) Ltd (2012) 33 ILJ (CCMA ) and Makiwane v International Healthcare Distributors (2003) 24 ILJ 2150 (LC)

3.17.3 Ulster v Standard Bank of South Africa Ltd (C647/2012) [2013] 3.18 Mistaken impression 3.18.1 Concor Projects (Pty) Ltd t/a Concor Open Cast Mining v CCMA & others [2014] 6 BLLR

534 (LAC) 3.19 Misrepresentation 3.19.1 Novick & another v Comair Holdings & others 1979 (2) SA 116 (W) and Ferguson v Basil

Read (Pty) Ltd (2013) 34 ILJ 1163 (LC); [2013] 3 BLLR 274 (LC) 3.20 When arbitration has to be requested and what is the time limit 3.20.1 Ceramic Industries Ltd v CCMA & another [2005] 12 BLLR 1235 (LC)

3.20.2 De Vries v Lionel Murray Schwormstedt & Low 92001) 22 ILJ 1150 (LC) 3.20.3 Indoor Amusements (Pty) Ltd v CCMA & others (2004) 25 ILJ 2205 (LC) 3.20.4 SATAWU obo Members v SAA (Pty) Ltd and others (JA54/13) [2014] ZALAC 40 (14

August 2014) and Nehawu obo Mofokeng and others v Charlotte Theron Children‟s Home (JA35/03)[2004] ZALAC (9 July 2004)

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3.21 Effect of certificates of outcome

3.21.1 Fidelity Guards Holdings (Pty) Ltd v Epstein and others [2000] 12 BLLR 1389 (LAC); (2000) 21 ILJ 2382 (LAC)

3.21.2 Velinov v University of KwaZulu-Natal & others (2006) 27 ILJ 177 (LC) 3.21.3 EOH Abantu (Pty) Ltd v CCMA & others (2008) 29 (ILJ) 2588 (LC) 3.21.4 Bombardier Transportation (Pty) Ltd v Lungile Mtiya NO & others [2010] 8 BLLR 840 (LC) 3.21.5 Avgold - Target Division v CCMA & others (2010) ILJ 924 (LC); [2010] 2 BLLR 149 (LC) 3.22 Whether employment relationship should be proved at conciliation 3.22.1 EOH Abantu (Pty) Ltd v CCMA & others (2010) 31 ILJ 937 (LC); [2010] 2 BLLR 172 (LC)

3.22.2 Dempster v Kahn NO & Others (1998) 19 ILJ 1475 (IC) 3.22.3 Bombardier Transportation (Pty) Ltd v Lungile Mtiya NO & others [2010] 8 BLLR 840 (LC) 3.23 Effect of a premature referral of a dismissal dispute 3.23.1 Avgold - Target Division v CCMA & others (2010) ILJ 924 (LC); [2010] 2 BLLR 149 (LC) 3.24 Powers of the arbitrator 3.24.1 Shoredits Construction (Pty) Ltd v Pienaar NO and others 1995 (16) ILJ 390 at 393

3.24.2 Reunert Industries (Pty) Limited t/a Reutech Defence Industries v Naicker and others

[1997] 12 BLLR 1632 (LC) 3.24.3 Filta-Matix (Pty) Ltd v Freudenberg (1998) 1 SA 606 (SCA) 3.24.4 Cusa v Tao Ying Metal Industries and others (2008) 29 ILJ 2461 (CC) 3.24.5 Equity Aviation Services Pty (Ltd) v CCMA & others (2008) 29 ILJ 2507 (CC) 3.24.6 NUMSA obo Sinuko v Powertech Transformers (DPM) and others (CA16/2012) [2012]

ZALAC 34; [2014] 2 BLLR 133 (LAC); (2014) 35 ILJ 954 (LAC) (2 December 2013) 3.25 Section 147 discretion

3.25.1 Section 147(3)

3.25.2 Pankana CC t/a R & W Transport Components v Dreyer NO & others (2012) 33 ILJ 692

(LC)

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3.25.3 Magic Company v CCMA & others (2005) 26 ILJ 271 (LC) 3.25.4 When may CCMA assume jurisdiction 3.25.5 SACTWU obo Stinise v Dakbor Clothing (Pty) Ltd & others (2007) ILJ 1318 (LC) 3.25.6 NBCRFI v Carlbank Mining Contracts (Pty) Ltd & another JOL 28742 (LAC) 3.26 Belated allegation that union activities was reason for dismissal 3.26.1 Evan Gordon Enterprises (Pty) Ltd v Phetla NO & others (2012) 33 ILJ 229 (LC) 0665‟

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4 REPRESENTATION 4.1 Legal representation 4.1.1 CCMA & others v Law Society Northern Provinces (005/13) [2013] ZASCA 118 dated 20

September 2013

4.1.2 Nertherburn Engneering cc t/a Nethernburn Ceramic v Mudau & others [2009] 30 ILJ 269 (LAC)

4.2 Factors to consider in determining whether legal representation should be allowed 4.2.1 NUM & Mohlalisi v CCMA and others ZALAC [JA90/2013]

4.2.2 Vaal Toyota (Nigel) v MIBCO and others [2002] 10 BLLR 936 (LAC) 4.3 Reviewable irregularities 4.3.1 SA Post Office v Govender & others (2003) 18 ILJ 1733 (LC)

4.3.2 Coyler v Essack (1997) 18 ILJ 1382 (LC) 4.3.3 Commuter Handling Services (Pty ) Ltd v Mokoena & others [2002] 9 BLLR 843 (LC) 4.3.4 SASOL Infrachem v Daniel and others [2014] ZALAC 52 (21 October 2014) 4.4 Fellow member of employers’ organisation 4.4.1 AHI Employers‟ Organisation obo Members v CCMA; AHI Employers‟ Organisation obo

Members & Others v CCMA & Others [2012] ZALCJH (1 February 2012)

4.4.2 NUM obo Mabote v CCMA and others [2013] 10 BLLR 1020 (LC) 4.4.3 Bidvest Food Services (Pty) Ltd v NUMSA obo others [2014] ZALCCT 58 (31 October

2014) 4.4.4 TGWU v Coin Security Group (Pty) Ltd [2001] 4 BLLR 458 (LC) 4.4.5 County Fair Food (Pty) Ltd v CCMA [2003] 2 BLLR 134 (LAC) 4.5 Legal representation for jurisdictional objections 4.5.1 Shell SA Energy (Pty) Ltd v National Bargaining Council for the Chemical Industry & others

(2013) 34 ILJ 1490 (LAC)

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5 CONCILIATION 5.1 Impact of categorisation of dispute on certificate of non-resolution and referral 5.1.1 National Union of Metal Workers of SA & others v Driveline Technologies (Pty) Ltd (2000)

21 ILJ 142 (LAC)

5.1.2 Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and others [2010] 2 BLLR 149 (LC)

5.1.3 Parliament of Republic of South Africa v Charlton [2010] 10 BLLR 1024 (LAC) and

Wardlaw v Supreme Moundings (Pty) Ltd (2007) 28 ILJ 1042 (LAC) 5.1.4 Ingo Strautmann v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg and Bean Suncoast

(unreported Case No D412/07) 5.1.5 Bombardier Transportation (Pty) Ltd v Mtiya NO & others [2010] 8 BLLR 840 (LC) 5.2 Dismissal at conciliation – not empowered 5.2.1 Premier Gauteng & another v Ramabulana N.O & others (2008) 29 ILJ 1099 (LAC) 5.3 Telephonic conciliation permissible 5.3.1 GIWUSA on behalf of Heyneke v Klein Karoo Kooperasie Bpk (2005) 26 ILJ 1083 (LC) 5.4 Commissioner’s powers at conciliation 5.4.1 Kasipersad v CCMA & others [2003] 2 BLLR 187 (LC) 5.4.2 Bombardier Transportation (Pty) Ltd v Mtiya NO & others [2010] 8 BLLR 840 (LC)

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6 CON-ARB 6.1 Effect of neither party objecting to con-arb

6.1.1 Pioneer Foods (Pty) Ltd t/a Sasko Milling & Baking (Duens Bakery) v CCMA & Others

[2011] 8 BLLR 771 (LC) and Keerom Casa Hotel v Heinrichs and another [1999] 1 BLLR 27 (LC)

6.2 Effect of an objection to con-arb

6.2.1 Ceramic Industries Ltd v CCMA & Another [2005] 12 BLLR 1235 (LC)

6.2.2 Modikwa Platinum Mine (Pty) Ltd v CCMA and Others [2012] 6 BLLR 578 (LC)

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7 ARBITRATION

7.1 Duties of Commissioners 7.1.1 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405

(CC)

7.1.2 Kobe and Another v CCMA and Others (JR2014/11) [2014] ZALCJHB 118 (Handed down on 10 March 2014)

7.1.3 Land Bank v Nowosenetz NO and others (JR3392/10) [2013] ZALCJHB (handed down on

2 November 2010) 7.1.4 Raswiswi v CCMA and others (2011) 32 ILJ 2186 (LC) 7.1.5 Anglo Operations Ltd (Kriel Colliery) v CCMA & others [2014] 7 BLLR 719 (LC) 7.1.6 Scholtz v Maseko NO & Others [2000] 9 BLLR 1111 (LC)

7.1.7 Mabitsela v Department of Local Government & Housing & Others [2012] 8 BLLR 790 (LC) 7.1.8 Klaasen v CCMA & Others [2005] 10 BLLR 964 (LC) 7.1.9 Jansen v CCMA and Others (JR297/2009) [2014] ZALCJHB 76 (handed down on 20

March 2014) 7.1.10 Threewaterskloof Municipality v SALGBC (Western Cape Division) and others [2010] 11

BLLR 1216 (LC) 7.1.11 Cash Paymaster Services Northwest (Pty) Ltd v Paul Shabangu NO & others [2009] 5

BLLR 415 (LC) 7.1.12 Edcon Ltd v Pillemer No & Others [2008] 5 BLLR 391 (LAC) 7.1.13 Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and others (JA2/2012) [2013]

ZALAC28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) 7.1.14 Chabalala v MEIBC and others (JR2963/2011) [2013] ZALAC JHB 299 7.2 Impact of merit rulings on succeeding Commissioner 7.2.1 Sondolo IT (Pty) Ltd v Howes & others [2009] 5 BLLR 499 (LC) 7.3 Functus Officio 7.3.1 PT Operational Services (Pty) Ltd v Retail and Allied Workers Union obo Ngwetsana

[2013] 3 BLLR 225 (LAC) 7.4 Absolution from the instance

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7.4.1 Joubert v Legal Aid South Africa, (2011) 32 ILJ 1921 (LC) and Minister of Safety and Security v Madisha & Others [2009] 1 BLLR 80 (LC) and Claude Neon Lights (Pty) Ltd v Daniel 1976 (4) SA 403 (A))

7.5 Postponements 7.5.1 The Only Professional Modern Autobody cc t/a Modern Collission Centre v MISA obo P J

Gouws and 2 others (JR2811/2010 and J2215/10) (Delivered 14 June 2012); Voster v CCMA and Others (2002) 23 ILJ 1899 (LC)

7.5.2 Coin Security Group (Pty) Ltd v Mshengu and Others 2001 (22) ILJ 910 (LC)

7.5.3 Northern Province Development Corporation v CCMA and Others (2001) 22 ILJ 2697 7.6 Second application for postponment 7.6.1 Intersite Property Management Services v Khululekile Mchuba & Others (JR 1343/2011)

[2013] ZALCJHB 217 (handed down on 13 August 2013); Western Cape Southern Suburbs Real Estate (Pty) Ltd t/a Seeff Properties v CCMA and others 2009 (30) ILJ 2158 (LC)

7.7 Finding a party in contempt

7.7.1 Bargaining Council for the Clothing Manufacturing Industry & Another v Prinsloo [2007] 9

BLLR 825 (LC)

7.7.2 Ciro Beverage Solutions (Pty) Ltd v SA Transport & Allied Workers Union & others (2014) 35 ILJ 1275 (LC)

7.7.3 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) 7.8 Costs 7.8.1 South African Airways Technical (SOC) Ltd v SATAWU and Another (2014) 35 ILJ 1638

(LC) (8 November 2013) and NUM v East Rand Gold and Uranium Co Ltd (1991) 12 ILJ 1221 (A)

7.8.2 Wallis v Thorpe and Another [2010] 31 ILJ 1254 (LC) 7.8.3 Public Servant Association of SA on behalf of Khan v Tsabadi NO and others [2012] 33 ILJ

2117 (LC) 7.9 Withdrawals 7.9.1 Ncaphayi v CCMA & others (2011) 32 ILJ 402 (LC)

7.9.2 Kgobokoe v CCMA & others (2012) 33 ILJ 235 (LC)

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7.9.1 SAMWU and Others v CCMA and another (J2448/13) [2013] ZALCJHB 303 (21 November

2013)

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8 EVIDENCE

8.1 Balance of probability

8.1.1 Govan v Skidmore 1952 (1) SA 732 (N)

8.2 Evaluating evidence - relevance admissibility and weight 8.2.1 Stellenbosch Farmers‟ Winery Group Ltd and Another v Martell & Kie SA and Others 2003

(1) SA 11 (SCA) and The Director General: Department of Public Works: Limpopo v Sello Jermia Tselane (JR948/09, in Northam Platinum LTD v Fganyago NO & Others [2009] JOL 24212 (LC) and Gwala v Commissioner for Conciliation Mediation and Arbitration and Others (D296/11) [2013] ZALCD 11 (14 May 2013)

8.2.2 Sasol Mining (Pty) Ltd v Ngqeleni NO & Others (2011) 32 ILJ (LC)

8.2.3 BANDA v GPSSBC and another (JR3272/2009) ZALCJHB (26 February 2014) and

Standerton Mills (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others

8.2.4 Moodley v Illovo Gledhow and others (2004) 25 ILJ 1462 (LC). 8.3 Failure to call a witness 8.3.1 Bargaining Council for the Furniture Manufacturing Industry, KwaZulu – Natal v UKD

Marketing CC and Others (2013) 34 ILJ 96 (LAC) 8.3.2 Tshishonga v Minister of Justice and Constitutional Development and Another (2007) 28

ILJ 196 (LC)

8.3.3 De Beer v Trudon (Pty) Ltd (1994) 15 ILJ 1057 (LAC) and Food and Allied Workers Union and Others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ 1057 (LAC)

8.4 Types of evidence HEARSAY EVIDENCE 8.4.1 General

8.4.2 Matsekoleng v Shoprite Checkers [2013] 2 BLLR 130 (LAC)

8.4.3 Southern Sun Hotels (Pty) Ltd v SA Commercial Catering & Allied Works Union and

Another (2000) 21 ILJ 1315 (LAC)

8.4.4 Swiss South Africa (Pty) Ltd v Louw NO and others (2006) 27 ILJ 395 (LC)

8.4.5 Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others (JA51/10)[2013] ZALAC 16 (19 July 2013)

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8.4.6 NUMSA obo ADAM v Volkswagen South Africa (Pty) Ltd [2002] 9 BALR 967 (CCMA)

8.4.7 NUMSA obo Mnisi v First National Battery [2007] 10 BALR907 (NBCCI)

CIRCUMSTANTIAL EVIDENCE

8.4.8 Duncan Manufacturing v MEIBC and others [2010] ZALC 131 (7 September 2010) and Komape v Spoornet (Pty) Ltd and Others [2008] ZALC 72

EXPERT WITNESS 8.4.9 IO Tech Manufacturing (Pty) Ltd and others v Gallager Group Ltd and another [2014] 2

ALL SA 134 (SCA)

DOCUMENTARY EVIDENCE 8.4.10 Botha v S [2010] 2 ALL 116 (SCA)

8.4.11 Trend Finance (Pty) Ltd and another v Commissioner for SARS and another [2005] 4 All

SA 657 (C)

8.5 Parol evidence rule 8.5.1 Kingswood Golf Estate (Pty) Ltd v Witts-Hewinson and another [2014] 2 ALL SA 35 (SCA)

8.5.2 Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC) 8.6 Piercing the coprorate veil 8.6.1 Bargaining Council for the Furniture Manufacturing Industry, KwaZulu –Natal v UKD

Marketing CC and others (2013) 34 ILJ 96 (LAC) and Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790 (A)

8.6.2 Bargaining Council for the Furniture Manufacturing Industry, KwaZulu – Natal v UKD Marketing CC and Others (2013) 34 ILJ 96 (LAC)

8.6.3 Esterhuizen v Million-Air Services CC (in liquidation) & others (2007) 28 ILJ 1251 (LC) 8.7 POLYGRAPH TEST

See chapter 24

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9 RESCISSION 9.1 Rescission of certified awards 9.1.1 Tony Gois t/a Shakespeare‟s Pub v Van Zyl & others (2003) 24 ILJ 2302 (LC) 9.2 Grounds for rescission 9.2.1 Shoprite Checkers (Pty) Limited v CCMA and others (2007) 28 ILJ 2246 (LAC)

9.2.2 Northern Training Trust v Maake & Others (2006) 27 ILJ 828 (LC) 9.2.3 Ceramic Industries Ltd v CCMA & Others (2005) 12 BLLR 1235 (LC)

9.2.4 Professional Transport Workers Union v Malema and Others (JA67/12) [2014] ZALAC 53

9.2.5 Northern Province Government Association v CCMA and Others (2001) 5 BLLR 539 (LC)

9.2.6 MM Steel Construction CC v Steel Engineering and Allied Workers Union of SA and

Others (1994) 15 ILJ 1310 (LAC)

9.2.7 Lumka and Associates v Maqubela (2004) 25 ILJ 2326 (LAC) 9.3 Application must fall within the ambit of Section 144 9.3.1 Builders Trade Depot v CCMA & others [2012] 4 BLLR 343 (LC) 9.4 Service by fax 9.4.1 Northern Province Local Government Association v CCMA & Others (2001) 5 BLLR 539

(LC)

9.4.2 Edgars Consolidated Stores (Pty) Ltd v Kalanda & others [2007] 7 BLLR 632 (LC)

9.4.3 Inzuzu I.T. Consulting (Pty) Limited v CCMA & others (2010) 12 BLLR 1288 (LC)

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10 CONDONATION 10.1 Rule 9 of the CCMA Rules 10.2 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532B-E;and SA Broadcasting

Corporation v Commission for Conciliation, Mediation & Arbitration & others (2003) 24 ILJ 999 (LC)

10.3 Moila v Shai NO & Others (2007) 28 ILJ 1028 (LAC) 10.4 Independent Municipal & Allied Trade Union obo Zungu v SA Local Government

Bargaining Council & others (2010) 31 ILJ 1413 (LC)

10.5 Chemical Energy Paper Printing Wood & Allied Workers Union & others v Metal Box t/a MB Glass (2005) 26 ILJ 92 (LC)

10.6 Arnott v Kunene Solutions & Services (Pty) Ltd (2002) 23 ILJ 1367 (LC)

10.7 PPWAWU & others v AF Dreyer & Co (Pty) Ltd [1997] 9 BLLR 1141 (LAC) 10.8 South African Post Office Ltd v CCMA & others [2012] 1 BLLR 30 (LAC)

10.9 Algoa Bus Company v SATAWU & others [2010] 2 BLLR 149 (LC)

10.10 NEHAWU & others v Vanderbijlpark Society for the Aged [2011] 7 BLLR 690 (LC)

10.11 Anglo Platinum Ltd v Mmapitsa & others [2011] 11 BLLR 1048 (LC)

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11 UNFAIR DISMISSAL – GENERAL FIXED TERM CONTRACTS 11.1 Termination of fixed term contract 11.1.1 Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC)

11.1.2 Sindane v Prestige Cleaning Services (2010) 31 ILJ 733 (LC)

11.1.3 Fidelity Supercare Cleaning (Pty) Ltd v Busakwe NO and Others [2010] 3 BLLR 260 (LC)

11.1.4 Laas v Blue Disa Trading 310 cc [2014] 9 BALR 917 (CCMA)

11.1.5 Buthelezi v Municipal Demarcation Board [2005] 2 BLLR 115 (LAC)

11.1.6 PSA obo Mbiza v Office of the Presidency (2014) 3 BLLR 275 (LC)

11.1.7 Independent Municipal And Allied Trade Union and others v City of Johannesburg

Metropolitan Municipality and others [2014] 6 BLLR 545 (LAC)

11.2 Dismissal demanded by client of tes

11.2.1 Nape v INTCS Corporate Solutions (Pty) Ltd [2010] 8 BLLR 852 (LC)

11.2.2 Mnguni v Imperial Truck System (Pty) Ltd t/a Imperial Distribution (2002) 23 ILJ 492 (LC)

11.2.3 NUMSA obo Daki v Colven Associates [2006] BALR877 (MEIBC)

11.2.4 Jonas v Quest Staffing Solutions [2003] BALR 811 CCMA 11.3 Constructive dismissal 11.3.1 Strategic Liquor Service v Mvumbi NO and others (2009) 30 ILJ 30 1526 (CC)

11.3.2 Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC

11.3.3 Albany Bakeries Ltd v Van Wyk & Others [2011] JOL 27545 (LAC)

11.3.4 Motshegoa v Police and Prisons Civil Rights Union [2014] 8 BALR 808 (CCMA)

11.3.5 Bothma v Fisher Incorporated Attorneys [2012] 5 BALR 475 (CCMA) 11.4 Constructive Dismissal not necessarily unfair 11.4.1 Moser Industries (Pty) Ltd v Venn [1997] 11 BLLR 1402 (LAC)

21

DISMISSAL WITHOUT PRIOR WRITTEN WARNINGS

11.5 Progressive discipline 11.5.1 Gcwensha v Commission for Conciliation, Mediation & Arbitration & others (2006) 27 ILJ

927 (LAC)

11.5.2 Timothy v Nampak Corrugated Containers (Pty) Ltd [201] 8 BLLR (LAC)

THE APPRORIATE REMEDY FOR UNFAIR DISMISSAL

11.6 Factors to consider 11.6.1 Dr. D.C. Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC)

11.6.2 Nyavhane v Voice on One [2004] 11 BALR 1419 (CCMA) 11.7 Providing adequate reasons for amount 11.7.1 Mohlakoana v Commissioner, Commission for Conciliation, Mediation and Arbitration and

Another [2010] 10 BLLR 1061 (LC); (2010) 31 ILJ 2688 (LC) 11.8 Patrimonial loss 11.8.1 Lakomski v TTS Tool Technic Systems (Pty) Ltd (2007) 28 ILJ 2775 (LC)

11.8.2 Nape v INTCS Corporate Solutions (Pty) Ltd (2010) ILJ 2120 (LC) 11.9 Compensation for procedural unfairness 11.9.1 Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89 (LAC) 11.10 Dismissal to compel acceptance of a demand 11.10.1 NUMSA & others v Fry‟s Metals (Pty) Ltd (2005) 26 ILJ 689 (SCA)

11.10.2 Solidarity obo Wehncke v Surf4Cars (Pty) Ltd (2011) 32 ILJ 3037 (LC)

22

12 DISMSSAL FOR MISCONDUCT - PROCEDURAL FAIRNESS 12.1 General 12.1.1 CCMA Guidelines: Misconduct Arbitrations 12.2 Minimum requirement for procedural fairness 12.2.1 Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ 1644

(LC); [2006] 9 BLLR 833 (LC)

12.2.2 Nitrophoska (Pty) Ltd v CCMA & others [2011] 8 BLLR 765 (LC) 12.3 Disciplinary action against shop steward (item 4(2) of the code of good practice) 12.3.1 BIFAWU & another v Mutual and Federal Insurance Company Ltd [2006] 2 BLLR 118 (LAC)

12.3.2 POPCRU obo Masemola & others v Minister of Correctional Services (2010) 31 ILJ 412 (LC)

12.3.3 NCBAWU v Masinga & others [2000] 2 BLLR 171 (LC) 12.4 Legal representation at disciplinary enquiries 12.4.1 MEC: Department of Finance, Economic Affairs and Tourism: Northern Province v Mahumani

[2005] 2 BLLR 173 (SCA)

12.4.2 Hamata & another v Chairperson Peninsula Technikon Internal Disciplinary Committee & others 2002 (5) SA 449 (SCA)

12.4.3 Van Eyk v Minister of Correctional Services & others [2005] 6 BLLR 638 (EC) and Majola v MEC, Department of Public Works, Northern Province & others [2004] 1 BLLR 54 (LC)

13 DISMSSAL FOR MISCONDUCT – SUBSTANTIVE FAIRNESS 13.1 Reason for dismissal 13.1.1 Fidelity Cash Management Services v Commission for Conciliation, Mediation and

Arbitration and others [2008] 3 BLLR 197 (LAC) 13.2 Second enquiry / changing the chairperson’s decision 13.2.1 BMW (SA) (Pty) Ltd v Van der Walt (2000) 21 ILJ 113 (LAC)

13.2.2 Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC): [2004] 3 BLLR

199 (LAC)

23

13.2.3 Factors to consider in determining if a second enquiry would be fair

13.2.4 Greater Letaba Local Municipality v Mankgabe NO & others [2008] 3 BLLR 229 (LC) and SARS v CCMA and Others [2014] 1 BLLR 44 (LAC)

13.2.5 Cape Town City Council v Masitho &others (2000) 21 ILJ 1957 (LAC)

13.2.6 MEC for Finance, Kwazulu Natal and another v Dorkin No & another [2008] 6 BLLR 540 (LAC)

13.2.7 Samson v CCMA [2009] 11 BLLR 1119 (LC)

13.2.8 Solidarity/MWU on behalf of Van Staden v Highveld Steel & Vanadium & another (2005) 26 ILJ 2045 (LC)

13.2.9 SACCAWU & others v Irvin & Johnson Ltd (1999) 20 ILJ 2302 (LAC); [1999] 8 BLLR 741 (LAC)

13.2.10 Cape Town City Council v Masitho & others (2000) 21 ILJ 1957 (LAC) 13.3 Reinstatment 13.3.1 Nel v Oudtshoorn Municipality & another (2013) 34 ILJ 1737 (SCA) and Myers v National

Commissioner of South African Police Service [2014] 5 BLLR 461 (LC)

13.3.2 Eskom Holdings Ltd v Fipaza & others (2013) 34 ILJ 549 (LAC) 14 DISMISSAL FOR POOR WORK PERFORMANCE 14.1.1 Pernod Ricard SA (Pty) Ltd v CCMA & others (2011) 32 ILJ 119 (LC)

14.1.2 Gostelow v Datakor Holdings (Pty) Ltd t/a Corporate Copilith (1993) 14 ILJ 171 (IC)

14.1.3 Smuts v Adair [1999] 4 BLLR 392 (LC) 14.1.4 Boss Logistics v Phopi & Others (2010) 31 ILJ 1644 (LC)

14.1.5 Eskom v Mokoena [1997] 8 BLLR 965 (LAC) 14.2 Poor performance standards for senior managers 14.2.1 Somyo v Ross Poultry Breeders (PTY) Ltd [1997] 7 BLLR 862 (LAC)

14.2.2 Palace Engineering (Pty) Ltd v Ngcobo and others [2014] 6 BLLR 557 (LAC)

24

15 DISMISSAL FOR OPERATIONAL REQUIREMENTS 15.1 Retrenchment – section 189 & 189 a 15.1.1 NEHAWU & Others v University of Pretoria [2006] 27 ILJ 117 (LAC)

15.1.2 At what stage must the parties consult?

15.1.3 National Union of Mineworkers v Anglo American Platinum LTD & Others [2012] 12 BLLR

1252 (LC)

15.1.4 General Food Industries (Pty) Ltd v FAWU & Others (2004) 25 ILJ 1260 (LAC)

15.1.5 NUMSA & Others v SA Five Engineering & Others [2005] 1 BLLR 53 (LC)

15.1.6 Enterprise Food (Pty) Ltd v Allen & Others [2004] 7 BLLR 659 (LAC)

15.1.7 Porter Motor Group v Karachi (2002) 23 ILJ 348 (LAC)

15.1.8 General Food Industries Ltd t/a Blue Ribbon Bakeries v FAWU & Others [2004] 9 BLLR 849 (LAC)

15.1.9 Country Fair Foods (Pty) Ltd v OCGAWU & Others [2003] 7 BLLR 647 (LAC) 15.2 Who to consult

15.2.1 Zero Appliances (Pty) Ltd v CCMA & Others [2007] 7 BLLR 683 (LC); Baloyi v M&P

Manufacturing (Pty) Ltd [2001] 4 BLLR 389 (LAC);Maluleke & others v Johnson Tiles (Pty) Ltd [2008] 11 BLLR 1065 (LC)

15.3 Leading evidence regarding procedural fairness in cases where section 189a applies 15.3.1 Broll Property Group (Pty) Ltd v Du Pont & others (2006) 27 ILJ 269 (LAC) 15.3.2 Watts v Fidelity Corporate Services (Pty) Ltd [2007] 6 BLLR 579 (LC) 15.4 Single retrenchments 15.4.1 Nape v INTCS Corporate Solutions (Pty) Ltd [2010] 8 BLLR 852 (LC)

15.4.2 Bracks N.O. & another v Rand Water & another (2010) 31 ILJ 897 (LAC); [2010] 8 BLLR

795 (LAC) 15.5 Fair and objective selection criteria 15.5.1 Van Rooyen & Others v Blue Financial Services (SA) Pty Ltd [2010] 10 BLLR 1119 (LC)

25

15.5.2 Screenex Wire Weaving Manufacturing (Pty) Ltd v Jafter Ngema & others JA 49/07 (LAC)

handed down on the 2nd of September 2009

15.5.3 Foodgro (A division of Leisurenet) Ltd v Keil [1999] 9 BLLR 875 (LAC)

15.5.4 Super Group Supply Chain Partners v Dlamini & another [2013] 3 BLLR 255 (LAC)

15.5.5 15.5.5 CWIU v Lennon Ltd [1994] 10 BLLR 1 (LAC) 15.6 Notice of retrenchment 15.6.1 NUMSA v General Motors of South Africa (Pty) Ltd [2007] BLLR 914 (LC) 15.7 Substantive fairness 15.7.1 CWIU & Others v Latex Surgical Products (Pty) Ltd [2006] 2 BLLR 142 (LAC)

15.7.2 BMD Knitting Mills (Pty) Ltd v SACTWU [2001] 7 BLLR 705 (LAC) 15.7.3 Van Rensburg v Austen Safe Company [1998] 1 BLLR 86 (LC)

15.7.4 FAWU obo Kapesi & Others v Premier Foods Ltd t/a Blue Ribbon Salt Rivier [2010] 9

BLLR 903 (LC)

15.7.5 NUMSA & Others v Dorbyl Ltd & Another [2004] 9 BLLR 914 (LC)

15.7.6 SACWU v Afrox Ltd [1999] 10 BLLR 1005 (LAC) 15.8 Remedies for unfair retrenchment 15.8.1 Mamabolo & Others v Manchu Consulting CC [1996] 6 BLLR 562 (LC). 16 SEVERANCE PAY 16.1 Severance pay more than statutory minimum

16.1.1 Telkom (Pty) Ltd v CCMA & others [2004] 8 BLLR 844 (LC) 16.2 Retrenchment at alleged normal retirement age 16.2.1 Kirsten v Southern Cross Manufacturing Co Ltd t/a Southern Cross Industries (2006) 27

ILJ 2471 (CCMA). 16.3 Severance pay entitlement

26

16.3.1 Irvin & Johnson Ltd v CCMA & others [2006] 7 BLLR 613 (LAC)

16.3.2 16.3.2 Kruse v Gijima AST (Pty) Ltd [2010] 7 BLLR 722 (LC)

16.3.3 16.3.3 Fidelity Supercare Cleaning (Pty) Ltd v Busakwe N.O & others [2010] 3 BLLR 260

(LC)

16.3.4 Burman Katz Attorney v Brand NO & Others [2001] 2 BLLR 125 (LC) 16.3.5 Kitchin v Tiger Oats Ltd [1996] 9 BLLR 1084 (LAC)

16.3.6 Freshmark (Pty) Ltd v CCMA & Others [2003] 6 BLLR 521 (LAC)

16.3.7 Astrapak Manufacturing Holdings (Pty) Ltd t/a East Rand Plastics v CEPPWAWU [2013]

12 BLLR 1194 (LAC)

16.3.8 Sayles v Tartan Steel CC [2000] 2 BLLR 161 (LAC) 16.4 Severance pay and s197 transfer 16.4.1 Pama & Others v CCMA & Others [2001] 9 BLLR 1079 (LC)

16.4.2 MISA / SAMWU obo Members v Madikor Drie (Pty) Ltd [2006] 1 BLLR 12 (LC)

16.4.3 AST Holdings (Pty) Ltd v Roos [2007] 10 BLLR 291 (LAC) 16.5 Calculation of severance pay 16.5.1 Telkom (Pty) Ltd v CCMA & Others [2004] 8 BLLR 844 (LC)

16.5.2 SATU obo Van As & others v Kohler Flexible Packaging (Cape) a division of Kohler

Packaging Ltd [2002] 7 BLLR 605 (LAC) 16.6 Voluntary severance package 16.6.1 University of the North v Franks & others [2002] 8 BLLR 701 (LAC)

16.6.2 MAADA v MEC of the Northern Provinces for Finance & Expenditure & others [2003] 5

BLLR (LAC) 17 SECTION 197 TRANSFERS 17.1 Premature termination

27

17.1.1 Buthelezi v Municipal Demarcation Board (2004) 25 ILJ 2317 (LAC)

17.1.2 Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA); (2001) 22 ILJ 2407 (SCA)

17.1.3 17.1.3 Public Servant Association obo Mbiza v Office of the Presidency and others [2014] 3 BLLR 275 (LC)

17.2 Reasonable expectation and claim for permanent employment 17.2.1 University of Pretoria v CCMA & others [2012] 2 BLLR 164 (LAC) 17.3 Reasonable expectation of renewal 17.3.1 University of Cape Town v Thomas auf der Heyde [2001] 12 BLLR 1316 (LAC)

17.3.2 SA Rugby Player Association v SA Rugby (Pty) Ltd (2008) 29 ILJ 2218 (LAC) 17.3.3 MEC for the Department of Finance, Eastern Cape v De Milander & others [2011] 9 BLLR

893 (LC)

17.3.4 Joseph v University of Limpopo & others [2011] 12 BLLR 1166 (LAC) 17.4 Remedies for dismissal disputes related to fixed term contracts 17.4.1 Public Servant Association obo Mbiza v Office of the Presidency and others [2014] 3 BLLR

275 (LC) 18 SECTION 197 TRANSFERS 18.1 General application of section 197 18.1.1 NEHAWU v University of Cape Town and Others [2003] 2 BLLR 154 (CC)

18.1.2 Aviation Union of SA & another v SA Airways (Pty) Ltd & others (2011) 32 ILJ 2861 (CC) 18.2 When is a business transferred as a going concern? 18.2.1 Transport and Allied Workers Union of SA v Transnet and Others (J175/2011) ZALCJHB

(Delivered on 20 June 2013)

18.2.2 Pointies Panel Beaters Partnership v NUMSA & others [2009] 2 BLLR 99 (LAC)

18.2.3 Schutte & Others v Powerplus Performance (Pty) Ltd & Another (1999) 20 ILJ 665 (LC) 18.3 Second generation transfers

28

18.3.1 SAMWU and Others v Rand Airport Management Company (Pty) Ltd & Others (2005) 26 ILJ 67 (LAC)

18.3.2 COSAWU obo Members v Zikhethele Trading (Pty) Ltd (2005) 26 ILJ 1056 (LC) and Zikhethele Trading (Pty) Ltd v COSAWU obo Members & Others [2008] 2 BLLR 163 (LAC)

18.3.3 18.3.3 Aviation Union of SA & another v SA Airways (Pty) Ltd & others (2011) 32 ILJ 2861 (CC)

18.4 Automatically unfair dismissals related to section 197 18.4.1 Douglas & others v Gauteng MEC for Health [2008] 5 BLLR 401 (LC)

18.4.2 18.4.2 Business & Design Software (Pty) Ltd & Another v Van der Velde [2009] 8 BLLR

746 (LAC) 18.5 Liability of the old and the new employer 18.5.1 Anglo Office Supplies (Pty) Ltd v Lotz (2008) 29 ILJ 953 (LAC) 18.6 Consultation and s197 transfer 18.6.1 Irvin & Johnson Ltd v CCMA & Others [2002] 12 BLLR 194 (LC)

18.6.2 Jenkin v Khumbula Media Connexions (Pty) Ltd [2010] 12 BLLR 1295 (LC)

18.6.3 Kruger v Jigsaw Holdings Ltd & Others [2006] 7 BLLR 670 (LC)

18.6.4 Forecourt Express (Pty) Ltd v SATAWU & Others [2007] 2 BLLR 101 (LAC) 19 PROMOTION 19.1 Meaning 19.1.1 Mashegoane & Another v University of the North [1998] 1 BLLR 73 (LC) at 76 and Jele v

Premier of the Province of KwaZulu-Natal & others (2003) ILJ 1392 (LC) at 1398

19.2 Relevant considerations in deciding fairness 19.2.1 City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013)

34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) and Aries v CCMA & others (2006) 27 ILJ 2324 (LC)

19.2.2 De Nysschen v General Public Service Sectoral Bargaining Council & others (2007) 28 ILJ 375 (LC)

29

19.2.3 Noonan v Safety and Security Sectorial Bargaining Council and Others [2012] 33 ILJ 2597 (LAC)

19.3 When should other candidates be joined 19.3.1 National Commissioner of the SAPS v Safety & Security Sectoral Bargaining Council &

others [2005] 8 BLLR 808 (LC)

19.3.2 Gordon v Department of Health: KwaZulu-Natal [2008] (29) ILJ 2535 (SCA) 19.4 Polygraph results as selection criterion

19.4.1 Sedibeng Local Municipality v SALGBC & others (JR1559/09) [2012] ZALCJHB 45; [2012]

9 BLLR 923 (LC); 2013 (1) SA 395 (LC); (2013) 64 ILJ 166 (LC) (31 May 2012)

19.5 Upgrading

19.5.1 Minister of Labour v Mathibeli & others (2013) 34 ILJ 1548 (LC) 20 DEMOTION 20.1 Meaning 20.1.1 Section 186(2) (a)

20.1.2 Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional

Services & others (2008) 29 ILJ 2708 (LAC)

20.1.3 SA Police Services v Salukazana & others (2010) 31 ILJ 2465 (LC)

20.1.4 Van Der Riet v Leisurenet Ltd t/a Health and Racquet Club [1998] 5 BLLR 471 (LAC) 21 Training 21.1.1 MITUSA & other v Transnet Ltd & others [2002] BLLR 1023 (LAC)

21.1.2 Eskom v Marshall & Others [2003] 1 BLLR 12 (LC) at par 22 22 Benefits 22.1.1 Apollo Tyres South Africa (Pty) Ltd v CCMA & Others (2013) 34 ILJ 1120 (LAC)

22.1.2 Protekon (Pty) Ltd v CCMA & others [2005] 7 BLLR 703 (LC)

30

22.1.3 South African Post Office Ltd v Commission for Conciliation, Mediation and Arbitration and others [2012] 11 BLLR 1183 (LC)

22.1.4 IMATU obo Vorster v Umhlatuze Municipality [2011] 9 BLLR 882 (LC) 23 UNFAIR SUSPENSION 23.1 Pending a disciplinary enquiry 23.1.1 Koka v Director-General: Provincial Administration North West Government (1997) 7 BLLR

874 (LC)

23.1.2 SAPU & another v National Commissioner of the South African Police Service & another (2006) 1 BLLR 42 (LC)

23.1.3 Sappi Forests (Pty) Ltd v CCMA & others [2009] 3 BLLR 254 (LC); and Ndlovu v Transnet Ltd t/a Portnet [1997] 7 BLLR 887 (LC), Ngwenya v Premier of Kwazulu-Natal [2001] 8 BLLR 924 (LC); Minister of Labour v GPSSBC & others [2007] 5 BLLR 467(LC)

23.1.4 MEC for Education: North West Provincial Government v Errol Randal Gradwell (2012) 8 BLLR 747 (LAC)

23.1.5 Gradwell case above

23.1.6 POPCRU obo Masemola & others v Minister of Correctional Services (2010) 31 ILJ 412 (LC) and Mogothle v Premier of the Northwest Province & another (2009) ILJ 605 (LC); and Lebu v Maquassi Hills Local Municipality (2012) 4 BLLR 411 (LC )

23.1.7 SAPO Ltd v Jansen Van Vuuren NO & others (2008) 8 BLLR 798 (LC) and Minister of

Labour v General Public Service Sectoral Bargaining Council and others (2007) 5 BLLR 461 (LC)

23.1.8 County Fair v CCMA & Others [1998] 6 BLLR 577 (LC) and South African Breweries Ltd

(Beer Division) v Woolfrey & Others (1999) 5 BLLR 525 (LC)) 23.1.9 Mayaba v Commission for Conciliation Mediation And Arbitration and Another

(J2204/2014) [2014] ZALCJHB 364 (19 September 2014) 24 OCCUPATIONAL DETRIMENT AND RELEVANT CONSIDERATIONS IN DETERMINING

COMPENSATION 24.1 Provisions of the Protected Disclosure Act 24.1.1 What constitutes disclosure?

24.1.2 Protection

31

24.1.3 The Minister of Justice and Constitutional Development & another v Tshishonga [2009] 9

BLLR 862 (LAC) 24.1.4 Xakaza v Ekurhuleni Metro Municipality and others [2013] 7 BLLR 731 (LC) 24.1.5 Van Alphen v Rheinmetall Denel Munition (Pty) Ltd (2013) 34 ILJ 3314 (LC) 23.1.6 Johannes Izak Beaurain v Martin and others (C16/2012) ZALC (delivered 10-14 March

2014) 25 MISCONDUCT – SPECIFIC OFFENCES (VIOLATIONS) 25.1 Absence without leave (awol) 25.1.1 Khulani Fidelity Services Group v CCMA and Others [2009] 7 BLLR 664 (LC)

25.1.2 SACWU v Dyasi [2001] 7 BLLR 731 (LAC)

25.1.3 SA Broadcasting Corporation v CCMA & others (2002) 23 ILJ 1549 (LAC)

25.1.4 Mofokeng v KSB Pump (2003) 24 ILJ 1756 (BCA)

25.2 Dismissal based on suspicion 25.2.1 Mbanjwa v Shoprite Checkers (Pty) Ltd and others (DA4/11) [2013] ZALAC 129 (7

November 2013). 25.3 Supervening impossibility of performance 25.3.1 Moeketsi v Spilkin Optometrist [2012] JOL (CCMA)

25.3.2 25.3.2 Mamabolo v Protea Coin Group (Pty) Ltd [2011] 10 BALR 104 (CCMA) 25.4 Absence without leave – Imprisoned employees 25.4.1 Lebowa Platinum Mines Ltd v CCMA & Others[2002] 5 BLLR 429

25.4.2 Trident Steel (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others

(2005) 26 ILJ 1519 (LC)

25.4.3 Eskom Ltd v CCMA & others [2008] JOL22274 (LC)

25.4.4 National Union of Mineworkers & another v Samancor Ltd (Turbatse Ferrochrome) & other (2011) 32 ILJ 1618 (SCA); and Samancor Tubatse Ferrochrome v MEIBC & others (2010) BLLR 824 (LAC)

32

25.4.5 NUM & another v CCMA & others [2009] 8 BLLR 777 (LC) 25.5 Dismissal for incapacity 25.5.1 IMATU obo Strydom v Witzenburg Municipality and Others [2012] 7 BLLR 660 (LAC)

25.5.2 National Union of Mineworkers v Libanon Gold Mining co Ltd (1994) 15 ILJ 585 (LAC)

25.5.3 A-B v SA Breweries Ltd (2001) 22 ILJ 495 (CCMA) 25.6 Under the influence of alcohol / drugs

25.6.1 Marko Shanya v Trojan Truck systems (Pty) Ltd [2014] (CCMA)

25.6.2 Tanker Services (Pty) Ltd v Magudulela [1997] 12 BLLR 1552 (LAC)

25.6.3 Tosca Labs v CCMA & others [2012] 5 BLLR 529 (LC)

25.6.4 Transnet Freight Rail v Transnet Bargaining Council & Others [2011] 6 BLLR 594 (LC) 25.7 Derogative and racist remarks 25.7.1 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and others (2002) 23 ILJ (LAC)

25.7.2 Labour Court in Custance v South African Local Government Bargaining Council & Others

(2003) 24 ILJ (LC)

25.7.3 Modikwa Mining Personnel Services (Pty) Ltd v CCMA & Others [2012] ZALCJHB (Handed down 29 June 2012); and Specialized Belting & Hose (Pty) Ltd v Sello NO & Others [2009] 7 BLLR 704 (LC) and also JAMAFO Nero v Pick „n Pay (2007) 28 ILJ 588 (CCMA)

25.7.4 Solidarity/MWU on behalf of Van Staden v Highveld Steel & Vanadium & another (2005) 26 ILJ 2045 (LC)

25.7.5 Sedick & Another v Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA) 25.8 UNAUTHORISED REMOVAL OF EMPLOYER’S PROPERTY UNAUTHORISED EATING IN A SUPERMARKET 25.8.1 Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 12 BLLR 1211 (LAC)

25.8.2 Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 9 BLLR 838 (LAC) CONCEALMENT & DISHONESTY

33

25.8.3 Rainbow Farms (Pty) Ltd v CCMA & Others [2011] 5 BLLR 451 (LAC)

25.8.4 Woolworths (Pty) Ltd v CCMA & Others [2011] 10 BLLR 936 (LAC); 25.8.5 Miyambo v CCMA & others (2010) 31 ILJ 2031 (LAC); De Beer Consolidated Mines Ltd v

CCMA & Others [2000] 9 BLLR 995 (LAC) and to Shoprite Checkers (Pty) Ltd v CCMA & Others [2008] 9 BLLR 838 (LAC); Toyota South Africa Motors (Pty) Ltd v Radebe & Others [2000] 3 BLLR 243 (LAC) and Hulett Aluminum (Pty) Ltd v MEIBC & Others [2008] 3 BLLR 241 (LC).

25.9 Sleeping while working impermissible hours and dishonestly receiving payment for

such hours 25.9.1 Boardman Brothers (Natal) (Pty) Ltd v CWIU [1998] 7 BLLR 655 (A) 25.10 Derivative misconduct 25.10.1 Foschini Group v Maidi & others (2010) 31 ILJ 1787 (LAC)

25.10.2 FAWU obo Kapesi & others v Premier Foods t/a Blue Ribbon Salt River [2010] 9 BLLR

903 (LC)

25.10.3 SAGAWU obo Cingo & another v Pep SA Ltd t/a Pep Stores [2004] 10 BALR 1262 (LC)

25.10.4 Chauke & others v Lee Service Centre t/a Leeson Motors (1998) 19 ILJ 1441 (LAC)

25.10.5 FEDCRAW v Snip Trading (Pty) Ltd [2001] BALR 669 (P) 25.11 Failure to undergo polygraph test 25.11.1 DHL Supply Chain (Pty) Ltd v NBCRFLI and others [2014] 9 BLLR 860 (LAC) (13 May

2014)

25.11.2 FAWU obo Kapesi and Others v Premier Foods t/a Blue Ribbon Salt River (2012) 33 ILJ 1779 (LAC)

25.11.3 SATAWU and Others v Khulani Fidelity Security Services (Pty) Ltd (2011) 32 130 (LAC)

25.11.4 Truworths Ltd v CCMA (2009) 30 ILJ 677 (LC)

25.11.5 National Union of Mineworkers & others v Coin Security Group (Pty) Ltd t/a Protea Coin Group (2011) 32 ILJ137 (LC); and Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and others [2008] 3 BLLR 197 (LAC)

25.12 Insubordination 25.12.1 Wasteman Group v South African Municipal Workers‟ Union [2012] 8 BLLR 778 (LAC)

34

25.13 Failure to disclose previous dismissal 25.13.1 ESKOM Holdings Ltd v Fipzaz & others (2013) 34 ILJ 549 (LAC)

25.13.2 ABSA Bank Ltd v Fouche 2003 (1) SA 176 (SCA) 25.14 Failure to attend a disciplinary enquiry 25.14.1 Old Mutual Life Assurance Co SA Ltd v Gumbi [2007] 4 ALL SA 866 (SCA) (17 May 2007)

25.14.2 Fidelity Cash Management Service v CCMA & others [2008] 3 BLLR 197 (LAC) 26 TAX DEDUCTIONS FROM AMOUNTS DUE IN TERMS OF SETTLEMENT

AGREEMENTS AND AWARDS. 26.1 Eckhard v Filpro Industrial Filters (Pty) Ltd (1999) 20 ILJ 2043 (LC) 26.2 Shellard Media (Pty) Ltd v Barnard [2002] 11 BLLR 1359 (LC)

26.3 Motor Industry Staff Association & Another v Club Motors, a Division of Barlow Motor

Investments (Pty) Ltd (2003) 24 ILJ 421 (LC); and LSRC & Associates v Blom (2011) 32 ILJ 2685 (LC)

26.4 Penny v 600 SA Holdings (Pty) Ltd (2003) 24 ILJ 967 (LC)

26.5 Naidoo v The Careways (Pty) Ltd and Another [2014] 1 BLLR 69 (LC)

27 STATUTORY MONIES 27.1 Consolidation of disputes 27.1.1 Section 74 of the BCEA of 2013 27.2 Calculation: for purposes of determining if an employee is earning below the

threshold (section 6(3) of the bcea)

27.2.1 Mondi Packaging (Pty) Ltd v Department of Labour & Others (2008) 29 ILJ 371 (LC) 27.3 Calculation for severance pay 27.3.1 Zietsman & others v Transnet Ltd (2008) 29 ILJ 779 (LC)

35

27.4 Calculation of outstanding statutory amounts 27.4.1 WHAT AMOUNTS TO INCLUDE

27.4.2 WHAT AMOUNT IS EXCLUDED

27.4.3 VALUE OF PAYMENT IN KIND (SCHEDULE TO SECTION 35(5)) 27.5 Calculating leave pay

LEAVE PAY-WHEN PAYABLE AND LIMIT 27.5.1 Jooste v Kohler Packaging Ltd (2004) 25 ILJ 121 (LC)

LEAVE PAY – AGREEMENT TO PAY LEAVE PAY ON A MONTHLY BASIS AND NOT AT THE TIME LEAVE IS TAKEN

27.5.2 Minny & another v Smart Plan CC (2010) 31 ILJ 675 (LC) 27.6 Calculating notice pay 27.6.1 SABC v CCMA & Others [2002] 8 BLLR 693 (LAC)

27.6.2 When is there no obligation to pay notice pay? 28 ORGANISATIONAL RIGHTS 28.1 Jurisdictional requirements 28.1.1 SA Commercial Catering and Allied Workers Union v Specialty Stores Ltd (1998) 19 ILJ

557 (LAC); [1998] 4 BLLR 352 (LAC)

PEREMPTORY REQUIREMENTS 28.1.2 Health & Hygiene Services v Seedat NO & others [1999] 11 BLLR 1153 (LC) 28.2 What constitutes a workplace 28.2.1 SA Commercial Catering and Allied Workers Union v Specialty Stores Ltd (1998) 19 ILJ

557 (LAC)

28.2.2 Definition of workplace in section 213 of the LRA 28.3 More than one place of work

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28.3.1 Chamber of Mines of south Africa acting in its own name and obo Harmony Gold Mining Company Ltd and another v Association of Mineworkers and Construction Union and others [2014] 3 BLLR 258 (LC)

28.3.2 FAGWU obo Miya & 95 others v Capital Contracting Services (unreported);OCGAWU v

Woolworths (Pty) Ltd (1997) 7 BALR 813 (CCMA);OCGWU & another v Total SA (Pty) Ltd (1999) 20 ILJ 2176 (CCMA);SABAWU v Mr Price, unreported Case No GAJB 20440-06;DICHAWU obo Members v Mr Price, unreported Case No: GAJB 20440/06

28.4 Workplace at the premises of a tes, client of tes or client 28.5 Qualifying for organisational rights 28.5.1 Association of Mineworkers and Construction Union obo Members v Sibanye Gold

Driefontein Mine [2014] 8 BALR 794 (CCMA)

28.5.2 SIGNIFICANT INTEREST - Amendments in terms of the LRAA of 2014

28.5.3 Solidarity v Mercedes Benz of SA (Pty) Ltd [2011] 11 BALR 1216 (CCMA)

28.5.4 Factors to consider in awarding organizational rights

28.5.5 MOST REPRESENTATIVE TRADE UNION - Amendments in terms of the LRAA of 2014

28.5.1 Transnet Soc Ltd v National Transport Movement and others [2014] 1 BLLR 98 (LC), and National Union of Mineworkers of SA and others v Bader Bop (Pty) Ltd (2003) 24 ILJ 305 (CC)

28.6 Relevant considerations when settling 28.5.2 Transport Action Retail & General Workers Union and Blue Waters Hotel (2012) 33 ILJ

2514 (CCMA)

28.5.3 Edgars Consolidated Stores Ltd v FEDCRAW [2004] 7 BLLR 649 (LAC) 29 ENFORCEMENT OF AWARDS/ ORDERS 29.1 The effect of certification of an award 29.1.1 Chillibush Communications (Pty) Ltd v Gericke and others (2010) 31 ILJ 1350 (LC)

29.1.2 MIBCO v Osborne & others [2003] 6 BLLR 573 (LC)

29.1.3 Molaetsa v Meyer & another (2007) 28 ILJ 2600 (LC)

29.1.4 Robor (Pty) Ltd (Tube Division) v Joubert & others (2009) 30 ILJ 2779 (LC)

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29.2 Set - off 29.2.1 Rank Sharp South Africa (Pty) Ltd v Kleinman (2012) 33 ILJ 2937 (LC) 30 SECTION 188A ARBITRATIONS 30.1 Effect of an agreement in terms of section 188a of the lra 30.1.1 SATAWU & others v MSC Depots (Pty) Ltd & others (2013) 34 ILJ 706 (LC) 30.2 Competent finding 30.2.1 In Mudau v MEIBC & others (2013) 34 ILJ 663 (LC) 30.3 Process limited to the allegations levelled 31 REVIEW TEST

31.1 Review 31.1.1 Sidumo and another v Rustenburg Platinum Mines Ltd and others [2007] 12 BLLR 1097

(CC)

31.1.2 Southern Sun Hotel Interests (Pty) ltd v CCMA (2010) 31 ILJ 452 (LC)

31.1.3 Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA)

31.1.4 National Union of Mineworkers & another v Samancor Ltd (Tubatse Ferrochrome) and others 6 (2011) 32 ILJ 1618 (SCA)

31.1.5 Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others[2014] 1 BLLR 20 (LAC); and Derivo (Pty) Ltd v Commissioner for conciliation Mediation and Arbitration and others [2014] 10 BLLR 1000 (LC)]

31.1.6 Matsekoleng v Shoprite Checkers (Pty) Ltd [2013] 2 BLLR 130 (LAC)

31.1.7 Public Servants‟ Association obo its members v National Prosecuting Authority and another [2012] 8 BLLR 765 (LAC)

31.1.8 Afrox Healthcare Ltd v Commission for Conciliation Mediation and Arbitration & others [2012] 7 BLLR 649 (LAC)

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32 DEMARCATIONS 32.1 Relevant consideration 32.1.1 Coin Security (Pty) Ltd v CCMA & others [2005] 7 BLLR 672 (LC)

32.1.2 Food & Allied Workers Union v Ferucci t/a Rosendal Poultry Farm (1992) 13 ILJ 1271 (IC) 32.2 Method to be used 32.2.1 CONSULTING NEDLAC

IMPORTANCE AND RELEVANCE OF NEDLAC’S IMPUTS 32.2.2 South African Municipal Workers Union v Syntell (Pty) Ltd & Others [2013] 2 BLLR 207

(LC) 33 COLLECTIVE AGREEMENTS 33.1 Binding powers of unions 33.1.1 Section 200 (1) of the LRA

33.1.2 Section 23 (1) (d) of the LRA

33.1.3 Fakude & others v Kwikot (Pty) Ltd (2013) 34 ILJ 2024 (LC) 34 DISCRIMINATION

34.1 What is unfair discrimination

34.1.1 Harsken v Lane NO and Others 1997 (11) BCLR 1489 (CC)

34.1.2 HOSPERSA obo Venter v SA Nursing Council (2006) 6 BLLR 558 (LC) 34.1.3 Prinsloo v Van der Linde and Another (1997) 3 SA 1012 (CC)

34.2 Grounds for discrimination 34.2.1 Kadiaka v Amalgamated Beverage Industries (1999) 20 ILJ 373 (LC)

34.2.2 Zabala v Gold Reef City (2009)1 BLLR 94 (LC)

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34.2.3 Wallace v Du Toit (2006)8 BLLR 757 (LC)

34.2.4 Association of Professional Teachers v Minister of Education 91995) 9 BLLR (IC)

34.2.5 SATAWU on behalf of Dlamini and Transnet Freight Rail (2009) 30 ILJ 1692 (LAC)

34.2.6 IMATU & another v City of Cape Town (20050 11 BLLR 1084 (LC)

34.2.7 Harmse v City of Cape Town (2003) 6 BLLR 557 (LC)

34.3 Equal pay for work of equal value 34.3.1 Mangena & Others v Fila South Africa (Pty) Ltd & Others (2009) 12 BLLR 1224 (LC)

34.3.2 Ntai & Others v South African Breweries Ltd (2001)2 BLLR 186 (LC)

34.3.3 TGWU & another v Bayete Security Holdings (1999)4 BLLR 401 (LC)

34.4 Sexual harassment 34.4.1 Ntsabo V Real Security CC (2004) 1 BLLR 58 (LC)

34.4.2 Nicorique Francoise Bandat v De Kock and Another (JS 832/2013) [2014] ZALACJHB 342

(2 September 2014)

34.4.3 Potgieter v National Commissioner of the South African Police Service (2009) 2 BLLR 144 (LC)

34.4.4 Hapwood v Spanjaard Ltd (1996) 2 BLLR 187 (IC) 34.5 Medical testing 34.5.1 Hoffmann v South African Airways (2000) 12 BLLR 1365 (CC)

34.5.2 Irvin v Johnson Ltd v Trawler & Line Fishing Union & Others (2008) 4 BLLR 379 (LC)

34.5.3 Joy Mining Machinery a division of Harnischfeger (South Africa) (Pty) Limited v National

Union of Metal Workers of South Africa (NUMSA) and Others (J 158/02) [2002] ZALC 7 (31 January 2002)

34.6 When to refer the dispute 34.6.1 SATAWU obo Members v South African Airways (Pty) Ltd and Others (JA 54/13) [2014]

ZALAC 40 (14 August 2014)

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34.6.2 Siegelaar v Minister of Safety & Security (2004) 11 BLLR 1155 (LC) and Masango v Liberty Group Limited (2012) 3 BLLR 3003 (LC)

34.6.3 NEHAWU obo Mofokeng v Charlotte Theron Children‟s Home (2004) 10 BLLR 979 (LAC)

34.7 Unfair discrimination defenses AFFIRMATIVE ACTION MEASURES 34.7.1 South African Police Service v Solidarity obo Barnard and another [2014] JOL 32236 (CC)

34.7.2 Minister of Finance v & another v Van Heerden (2004) 12 BLLR 1181 (CC) 34.7.3 Abbot v Bargaining Council for the Motor Industry (Western Cape) (1999) 2 BLLR 115 (LC)

34.7.4 Department of Finance v CCMA & others (2003) 9 BLLR 865 (LC)

INHERENT REQUIREMENTS OF A JOB

34.7.5 Woolworths (Pty) Ltd v Whitehead (2000) 6 BLLR 6402 (LAC)

34.7.6 Association of Professional Teachers v Minister of Education (1995) BLLR 29 (IC)

34.7.7 Lagadien v University of Cape Town (2001) 1 BLLR 76 (IC)

34.7.8 IMATU v City of Cape Town (2005) 11 BLLR 1084 (LC)

34.7.9 Matjabeng Municipality v Mothupi NO (2011) 32 ILJ 2154 (LC) 34.8 Burden of proof 34.8.1 Prinsloo v Van der Linde and Another (1997) 3 SA 1012 (CC)

34.8.2 Ntai & Others v South African Breweries Ltd (2001)2 BLLR 186 (LC) 34.9 Remedies 34.9.1 South African Airways (Pty) Ltd v V and another (CA9/13, CA420/2006) [2014] ZALAC

27; [2014] 8 BLLR 748 (LAC)

34.9.2 Bedderson v Sparrow Schools Education Trust (2010) 4 BLLR 363 (LC)

34.9.3 Hoffmann v South African Airways (2000) 12 BLLR 1365 (CC) 34.10 Retrospective application of the law

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34.10.1 Nicorique Francoise Bandat v De Kock and another (JS 832/2013) [2014] ZALACJHB 342

(2 September 2014)

34.10.2 Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National Transport Commission and Others 1999(4) SA 1(SCA)

34.10.3 Bellais v Hodnett and another 1978 (1) SA 1109 (A)

34.10.4 Fouldien and others v House of Trucks (Pty) Ltd (2002) 23 ILJ 2259 (LC) at para 9

34.11 Concurrent claims

34.11.1 Ditsamai v Gauteng Shared Services Centre (2004) 5 BLLR 456 (LC)

34.11.2 Orr v University of South Africa (2004) 9 BLLR 954 (LC)

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1. RELEVANCE OF LRA AND LABOUR CASE LAW 1.1 THE RIGHT TO FAIR LABOUR PRACTICE 1.1.1 NEHAWU v University of Cape Town & others (2003) ILJ 95 (CC)

See also Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC)

One of the primary objects of the LRA is to give effect to and regulate the fundamental

rights conferred by section 23 of the Constitution including the right to fair labour practices enshrined in section 23(1).

The concept of unfair labour practice must be given content by the legislature and thereafter left to gather meaning, in the first instance, from the decisions of the specialist tribunals including the LAC and the Labour Court.

NEHAWU v University of Cape Town & others (above) para 40

“The focus of s 23(1) is, broadly speaking, the relationship between the worker and the employer and the continuation of that relationship on terms that are fair to both. In giving content to that right it is important to bear in mind the tension between the interests of the workers and the interests of the employers which is inherent in labour relations. Care must therefore be taken to accommodate, where possible, these interests so as to arrive at the balance required by the concept of fair labour practices. It is in this context that the LRA must be construed”.

1.2 DETERMINING FAIRNESS 1.2.1 In National Union of Metalworkers of South Africa v Vetsak Co-Operative Ltd and

others 1996 (4) SA577 (A); 1996 17 ILJ 455 (A) it was held that the approach must be to find a balance between fairness to both the employee and the employer.

1.2.2 In Sidumo and another v Rustenburg Platinum Mines Ltd & others

(2007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC) In terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all the relevant factors and circumstances.

1.2.3 Factors impacting on fairness Amongst the factors relevant to the determination of fairness are:

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The general vulnerability of employees to unfair decision making; The importance of security of employment; The importance of the rule that was breached; The reasons for establishing the rule including its reasonableness; The harm caused by the employee‟s conduct; The impact that it had on the trust relationship; The effect of setting a precedent; The reason why the employer imposed the sanction of dismissal; The basis of the employee‟s challenge to the dismissal; Whether additional training and instruction may result in the employee not repeating

the misconduct; The effect of dismissal on the employee; The employee‟s service record; The generally applicable industrial norms of which commissioners will have knowledge

through the institutional knowledge of the CCMA. These norms can be found inter alia in the pronouncements of the Constitutional Court, the Supreme Court of Appeal, the Labour Appeal Court and the Labour Court as well as awards of other commissioners. In terms of section 138(6) of the LRA it also appears from the Codes of Good Practice that has been issued by NEDLAC and Guidelines published by the CCMA such as CCMA Guidelines: Misconduct Arbitrations.

In Fidelity Cash Management Services v CCMA and others [2008] 3 BLLR 197 (LAC), it was held that it is an elementary principle of our labour law that the fairness or otherwise of the decision to dismiss must be determined with reference to the reasons for dismissal, as advanced by the employer at the time of dismissal. If however, during the course of the arbitration it transpires that the true reason for dismissal relates to a reason other than that provided by the employer, it is the duty of the commissioner to decide the fairness based on the true reason for dismissal.

1.3 BINDING EFFECT OF PRECEDENTS

1.3.1 In Gcaba v Minister of Safety & Security & others (2010) 31 ILJ 296 (CC); [2009] 12

BLLR 680 (CC) the maxim stare decisis et non quita movere (to stand by decision and not to disturb settled matters) was discussed. CCMA commissioners are bound by the judgments of the Labour Court, Labour Appeal Court, the Supreme Court of Appeal and the Constitutional Court irrespective of their views as to the correctness of such judgments. Commissioners are not bound but should consider awards and rulings of their colleagues.

Judgments should be applied and followed, whereas awards and rulings are to be duly considered because it is in the interests of: legal certainty;

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equality before the law; and the satisfaction of legitimate expectation.(see para 58 of Gcaba decision)

1.3.2 In Robin Consolidated Industries Ltd v Commissioner for Inland Revenue 1997 (3)

SA 654 (SCA) it was held that it is particularly important to observe a previous decision when it has been acted on for a number of years in such a manner that rights have been created under it.

1.3.3 In Le Roux v CCMA & others [2000] 6 BLLR 680 (LC) at page 687-689 the Court held

that the CCMA is bound by decisions of both the Labour and Labour Appeal Court. Only where different views were expressed by courts of the same standing, may a Commissioner properly select which view he/she regards to be more in accordance with the proper interpretation of the LRA. By not following a binding judgment, this may constitute a reviewable irregularity. (See also Maarten & others v Rubin NO & Others [2001] 2 BLLR 162 (LC) at 168F)

1.3.4 On a debatable point of law where the Labour Court has expressed its views with

diffidence, there may be room for a commissioner, after a careful consideration of the problem in accordance with proper legal principles, to arrive at a different conclusion.

1.3.5 Commissioners are not bound by remarks made in passing by the Court. However these

remarks may be regarded as persuasive.

1.3.6 Where there is no binding authority, on a particular issue, a Commissioner must interpret the LRA. In terms of section 3 of the LRA any person applying the LRA, must interpret its provisions in accordance with its primary objects, the Constitution and the ratified ILO Conventions.

1.4 DEVIATION FROM PREVIOUS JUDGEMENTS 1.4.1 In Daniels v Campbell NO & Others 2004 (5) SA 331 (CC) reference was made to the

merit of legal certainty, and in his minority judgment Moseneke J (as he then was) recognized the exception to the stare decisis principle in instances where the court is satisfied that its previous decision was wrong or where the point was not argued or where the issue is in some legitimate manner distinguishable.

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2. COMMENCEMENT AND TEMINATION OF EMPLOYMENT 2.1 EXISTENCE OF THE EMPLOYMENT RELATIONSHIP 2.1.1 In Wyeth SA (Pty) Ltd v Manqele & others (2005) 26 ILJ 749 (LAC) it was held that the

definition of employee in section 213 of the LRA can be read to include a person or persons who has/have concluded a contract of employment of which the commencement of employment is deferred to a future date/dates.

2.1.2 In Phera v Education Labour Relations Council and others (2012) 33 ILJ 2839 (LAC) it

was held that where an employee assumes duties without written permission from the Department, such assumption of duties would not establish an employment relationship per se.

2.1.3 In Bayat v Durban Institute of Technology (2006) 27 ILJ 188 (CCMA) it was held that

where the offer of employment is conditional upon the fulfilling of a future uncertain event, no employment relationship comes into being until the condition was fulfilled. That is also the case for terminative conditions.

2.2 DEEMED EMPLOYMENT UNDER SECTION 198A of the LRAA of 2014 In terms of section 198A (3) (b) (i) of the LRAA of 2014, a labour broker employee earning

below the BCEA threshold is deemed to be the employee of the client, unless the labour broker employee is truly temporary.

2.3 DEEMED EMPLOYMENT UNDER SECTION 198B:

Fixed term contract employees earning below the BCEA threshold may be deemed to be employed indefinitely if there is no justifiable reason for fixing the term and the exclusions in section 198B(2) are not applicable.

2.4 RESIGNATION

Resignation is a unilateral act which terminates an employment relationship. 2.4.1 In Lottering & others v Stellenbosch Municipality (2010) 31 ILJ 2923 (LC) it was held

that the withdrawal of resignation cannot have any effect unless the employer consent to such withdrawal.

2.4.2 In African National Congress v Municipal Manager, George Local Municipality &

others [2010] 3 BLLR 221 (SCA) it was held that resignation must be effective immediately or from a specific date, and being a unilateral legal act, does not need to be accepted by the intended recipient to be effected. It must however be unequivocally communicated to the other party.

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2.4.3 In Moloi v Mac Steel Service Centre (VRN Reef) [2014] 2 BALR 117 (MEIBC) the

Commissioner held that where an employee has communicated his intention to resign (“to jump ship”) in an e-mail there was no further need for him to formally resign as his intention communicated in the e-mail already constituted an unambiguous resignation.

2.4.4 In CEPPWAWU & Another v Glass & Aluminum 2000 CC [2002] 5 BLLR 399 (LAC) the

Court held that resignation in the heat of the moment does not terminate the employment contract if the employee has second thoughts soon thereafter.

2.4.5 In Solidarity and another v Public Health and Social Development Sectorial

Bargaining Council and others [2013] 4 BLLR 362 (LAC) it was held that if an employee who is prohibited by his contract of employment from taking up any other remunerative employment, does take up other remunerative employment, such will be a deemed resignation

2.4.6 In Mafika v SA Broadcasting Corporation Ltd [2010] 5 BLLT 542 (LC) it was held that a

sms sent by the employee of her unambiguous notice of resignation could constitute written notice. It was further irrevocable from the moment the intention came to the employer‟s attention.

2.4.7 In Quinn v Singlehurst Hydraulics (SA) Ltd [2005] 6 BALR 673 (CCMA) the

Commissioner held that a resignation could be effected either by word or by conduct. The question will be whether a reasonable person would have come to the conclusion that based on the employee‟s conduct he no longer intended to fulfill his part of the contract.

2.4.8 In Amazwi Power Products (Pty) Ltd v Turn bull [2008] 9 BLLR 817 (LAC) it was held that the resignation of an Executive Director from being a member of the board does not result in automatic termination of the employment contract.

2.5 RETIREMENT 2.5.1 In Rubin Sportswear v SA Clothing and Textile Workers Unions and Others (2004) 25

ILJ 1671 (LAC) the Court held that section 187(1)(b) created two bases upon which an employer can justify the dismissal of an employee on grounds of age. The one is an agreed retirement age, the other is the normal retirement.

2.5.2 In Cash Paymaster Services (Pty) Ltd v Browne (2006) 27 ILJ 281 (LAC) it was held

that the provision relating to normal retirement age should apply in cases where there is no agreement in respect of retirement age between the employer and employee.

2.5.3 In SA Metal & Machinery CO (Pty) Ltd v Gamaroff [2010] 2 BLLR 136 (LAC) the

provident fund rules were used to determine retirement the age. 2.5.4 In Hibbert v ARB Electrical Wholesalers (Pty) Ltd (2013) 34 ILJ 1190 (LC) it was held

that the dismissal related to age is automatically unfair as the retirement age was

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unilaterally determined and employer was unable to prove that the age used was the normal retirement age.

2.5.5 In Schweitzer v Waco Distributors (a div of Voltex (Pty) Ltd [1999] 2 BLLR 188 (LC) it

was held that there were 3 questions that must be answered in determining if the termination based on age amounted to unfair age discrimination. These questions were:

1. Was the dismissal based on age? 2. Was the agreed or normal age applicable? 3. Had the employee reached the age?

If the answers in respect of all 3 questions are yes then there was no unfair age

discrimination. 2.5.6 In Botha v Du Toit Very & Partners [2006] 1 BLLR 1 (LC) it was stated that an employer

must still follow a fair consultation process if a person had worked past the retirement age. 2.5.7 In Kirsten and Southern Cross Manufacturing CO Ltd t/a Southern Cross Industries

(2006) 27 ILJ 2471 (CCMA) at 2475F it was held that where there is an agreed retirement age, employment terminates on the retirement date due to effluxion of time in terms of the agreement and there is no dismissal.

2.6 LIQUIDATIONS 2.6.1 In Van Zyl No & Others v Commission for Conciliation Mediation and Arbitration and

Others (2012) 33 ILJ 2471 (LC) the Court held that in terms of section 38 of Insolvency Act, Act 24 of 1936, upon provisional liquidation the employment contract is suspended. From the date of the order an employee is entitled to claim UIF. The Court held further the liquidator had a duty to consult with employees and if the employment contract was terminated the employee would be entitled to refer an unfair dismissal dispute and claim compensation. The employee was further entitled to be paid severance pay in terms of the BCEA.

2.7 BUSINESS RESCUE 2.7.1 In NUMSA obo 4 Members v Motheo Steel Engineering CC (Case Number:

METS3334) the commissioner under the auspices of the MEIBC found that the moratorium placed on legal proceedings in terms of section 133 of the Companies Act, does not prevent the Council from arbitrating a dispute which it would otherwise have jurisdiction to arbitrate.

This ruling on jurisdiction was unsuccessfully reviewed in the Labour Court (Case Number J271-14) and the court held that section 210 of the LRA applies. In terms of this section, the provisions of the LRA prevail in the event of conflict with other legislation, save the Constitution.

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3. JURISDICTION 3.1 GENERAL

“Jurisdiction”, may be defined as the “power or competence of a Court to hear and determine an issue between parties.”

3.1.1 In Gcaba v Minister of Safety & Security & others (2010) 31 ILJ 296 (CC); [2009] 12

BLLR 680 (CC) it was held that jurisdiction has to be assessed on the basis of the pleadings, not the substantive merits of a case. If the pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, i.e. one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction (See also SA Maritime Safety Authority v McKenzie [2010] 5 BLLR 488 (SCA).

3.1.2 In Makhanya v University of Zululand (2009) 8 BLLR (SCA) it was held that the CCMA does not have jurisdiction to arbitrate pure contractual claims. In dismissal cases it must be alleged that the dismissal was unfair and that would form the basis for the issue to be decided by the arbitrator.

3.2 TERRITORIAL JURISDICTION 3.2.1 In Astral Operations Ltd v Parry (2008) 29 ILJ 2668 (LAC) the Court held that South

African laws did not apply as the employee was employed and worked in Malawi, therefore there was no jurisdiction to hear the matter.

“The Commission has jurisdiction in the whole Republic and has no jurisdiction outside the Republic.”

3.2.2 In MECS Africa (Pty) Ltd v CCMA & others (2014) ILJ 745 (LC) the court upheld the

decision of the Commissioner and confirmed the CCMA has jurisdiction to hear disputes referred to it by employees of a South African TES, even if those employees were placed with clients outside of South Africa's borders.

3.3 JURISDICTION LIMITED TO CERTAIN PARTIES – NOT INDEPENDENT CONTRACTORS

3.3.1 The jurisdiction of the CCMA is limited to employer and employee parties. The CCMA does

not have jurisdiction between an independent contractor and his or her client. In deciding these matters please refer to the Code of Good Practice: Who is an

Employee? 3.4 DETERMINING WHETHER A DISPUTE IS AN UNFAILR LABOUR PRACTICE OR NOT

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3.4.1 In Apollo Tyres SA (Pty) Ltd v CCMA & Others [2013] 5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) the court held that a benefit in terms of the LRA means existing advantages or privileges to which an employee is entitled ex contractu nor ex lege or granted in terms of a policy or practice, subject to the employer‟s discretion.

3.4.2 The principle in Apollo has recently been followed by the Labour Court in SARS v

Ntshintshi & Others [2013] 9 BLLR 923 (LC); (2014) 35 ILJ 255 (LC) where the court held that the provision of a discretionary travel allowance in terms of the employer's travel allowance policy amounted to a benefit.

3.5 UNFAIR LABOUR PRACTICE JURISDICTION LIMITED TO AN EXISTING

EMPLOYMENT RELATIONSHIP 3.5.1 In Sithole v Nogwaza NO & others (1999) 20 ILJ 2710 (LC); [1999] 12 BLLR 1348 (LC)

it was held that the jurisdiction to entertain disputes involving alleged unfair conduct in relation to provisions of benefits, if the conduct complained of occurred after the termination of the employment contract, is lacking. An unfair labour practice can only be committed during an existing relationship between employer and employee.

3.5.2 In Velinov v University of Kwazulu-Natal & others (2006) 27 ILJ 177 (LC) an employee

whose employment has been terminated either by resignation or otherwise, but who continues to work out his or her notice period, still enjoys the protection of the LRA and in particular the unfair labour practice provisions.

3.5.3 In the Sithole case it was found an existing employment relationship must exist at the time

the dispute is referred to the CCMA. Subsequently in MEC for Tourism, Environmental & Economic Affairs, Free State v Nondumo & others (2005) 10 BLLR 974 (LC) it was found that there was no merit in an argument that the CCMA lacked jurisdiction inter alia because the alleged unfair labour practice occurred while the applicant was still an employee. Reinstatement or re-employment would in these circumstances not be an appropriate remedy.

3.6 UNFAIR LABOUR PRACTICES PERPETRATED AGAINST AN EMPLOYER 3.6.1 The court in NEWU v CCMA & Others (2004) 2 BLLR 165 (LC) held the concept of an

unfair labour practice, as described in Section 186(2), does not embrace a labour practice committed by an employee against an employer.

3.7 JURISDICTION LIMITED TO CERTAIN PARTIES – ILLEGAL WORKERS NOT

EXCLUDED 3.7.1 In Kylie v CCMA and others (2010) 31 ILJ 1600 (LAC), the court ruled that every person

involved in a relationship of employment, including sex workers, regardless of the fact that sex work is still illegal under the South African law, has a section 23 constitutional right to fair labour practices and that this right involves at the minimum, being treated with dignity by employers.

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While the remedial issues must be tailored to meet the specific context of this case, the objects and provisions of the Act and the illegality of the work performed, there is nothing which indicates that no form of protection in terms of section 193 of the LRA should be available to a sex worker who was unfairly treated within the context of the provisions of the LRA.

3.7.2 In Discovery Health Ltd v CCMA & others (2008) 7 BLLR (LC) the court decided that

foreign nationals working without work permits are “employees” as defined by the LRA and may bring actions for unfair dismissals under the LRA. While the Immigration Act 13 of 2002 prohibits the employment of foreigners without a valid work permit, the consequence thereof will be that the employer is guilty of an offence. Employees has the right to fair labour practices in terms of section 23 of the Constitution.

3.8 JURISDICTIONAL LIMITATIONS - NATURE OF DISPUTE

The CCMA has jurisdiction to conciliate disputes about matters of mutual interest referred to it in terms of section 134 of the LRA; and any other dispute referred to it in terms of the LRA.

3.8.1 In De Beers Consolidated Mines Ltd v CCMA & others (2000) 5 BLLR 578 (LC), the

court remarked that the term “matters of mutual interest” is not defined in the Act, and should therefore be interpreted literally to mean any issue concerning employment. If given a wide interpretation, the term would include disputes of right as well as of interest.

3.9 SHORT TIME 3.9.1 A dispute relating to short time does not fall within the definition of an unfair labour practice

as understood by Section 186(2) of the LRA. In SACTWU obo Ndlangisa & others v Prowood Clothing (2005) 9 BALR 936 (NBCCMI) it was held that, in the absence of an agreement between the parties to implement short time, an employee may have a claim for outstanding wages that could either be determined by a Bargaining Council or the Department of Labour.

3.10 UPGRADING OF SALARY SCALES 3.10.1 In Ntlabezo & others v MEC for Education, Eastern Cape & others [2002] 3 BLLR 274

(Tokiso) it was held that a dispute about the upgrading of salary scales is not a dispute about promotion, and therefore does not fall within the ambit of an unfair labour practice which can be arbitrated.

3.11 EQUAL PAY FOR EQUAL WORK

With the amendments to the EEA, the CCMA has jurisdiction to arbitrate disputes about wage disparity, but only if the employee/s earn under the threshold as stipulated in the

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BCEA, or if the employee/s earn above the threshold and parties have consented to the jurisdiction of the CCMA.

3.11.1 The Labour Court held in Louw v Golden Arrow Bus Services (Pty) Ltd [2000] 3 BLLR

311 (LC) that it is not an unfair labour practice to pay different wages for equal work or for work of equal value. It is, however, an unfair labour practice if the reason or motive, being the cause for so doing, is direct or indirect discrimination on arbitrary grounds or the listed grounds, e.g. race or ethnic origin.

The Court went further to state that pay differentials are in practice subject to a number of factors; implying that it does not necessarily follow that unequal pay for equal work is unfair. The factors include:- the performance, experience, skills and potential of the various incumbents; market factors such as supply and demand; the employer‟s judgment as to the position‟s relative importance and value to the

organization; and the influence of collective bargaining, minimum pay levels and bargaining council

and industry agreements. 3.11.2 In Ntai & others v South African Breweries Ltd (2001) 22 ILJ 214 (LC) the court echoed

the principle that a mere allegation that there was discrimination on some or the other arbitrary ground without identifying such ground, is not sufficient for the Court to conclude that the arbitrary action of the employer amounts to discrimination.

Discrimination on unlisted grounds can only be considered discriminatory if it is based on „attributes and characteristics which have the potential to impair the fundamental human dignity of the applicants as human beings‟. In determining equal pay, the position of an employee or job category must be compared with that of other employees or job categories. The difference in pay should be based on such grounds as length of service, experience or the level of responsibility.

3.11.3 A disparity in wages or salaries is not unfair, if it was brought about through collective

bargaining and the affected employee had opted to be part of the bargaining unit according to the Labour Court in Heysen v Armstrong Hydraulics (Pty) Ltd [2000] 12 BLLR 1444 (LC).

3.11.4 In Numsa and Others v Gabriel (Pty) Ltd (2002) 23 ILJ 2088 (LC) it was held that when

an employee claims unfair discrimination on an unlisted ground (arbitrary ground), the employee must show that the discrimination impacted on their human dignity.

It is not sufficient to describe the difference in pay as being "disproportional, irrational, arbitrary and capricious", and irrational actions or practices of the respondent. Although

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the regulations provide employers with certain defences to claims of unfair discrimination on this basis, employers won't be able, objectively, to raise a lack of intention to discriminate as a defence.

3.11.5 In Transport and General Workers Union v Bayete Security Holdings 1999 (4) BLLR

401 (LC) the court held that the applicant failed to prove that the difference in salary levels was based on race or any other arbitrary criterion.

In dealing with cases of equal pay for equal work please refer to the Employment Equity Regulations.

3.12 VICTIMIZATION 3.12.1 The CCMA does not have jurisdiction to arbitrate allegations of victimization.

3.13 SETTLEMENT AGREEMENTS 3.13.1 In Dell v HPD Construction [2010] 6 BLLR 626 (LC) the Court considered when a

settlement agreement concluded at the CCMA could be made an Order of Court. The Court held a settlement was a written agreement, settling a dispute, which a party had the right to refer to arbitration or to the Labour Court. Reference was made to the principles set out in Molaba v Emfuleni Local Municipality & others [2009] JOL 234 77 (LC) where the requirements of a settlement agreement in terms of section 142A was considered.

3.13.2 In South African Post Office Ltd v Communication Workers Union obo Permanent

Part-Time Employees [2013] 12 BLLR 1203 (LAC) the Court held for a settlement agreement to be the subject of an arbitration it must be an agreement capable of being made an arbitration award under section 142A. The Court also referred to section 158(1A) and held further that the CCMA does not have jurisdiction to interpret Court Orders.

3.13.3 Settlement Agreements do not cover all future disputes. In Goci v Metropolitan Health

Corporate (Pty) Ltd (C1073/2010) [2010] ZALCCT 25 (7December 2010) a dismissal was held to be fair after an employee was re-employed in terms of a settlement agreement into another position and thereafter refused to perform the functions of the new position. In Communication Workers Union obo Segakweng v South African Post Office Ltd [2014] 2 BALR 172 (CCMA) an employee‟s suspension was lifted in a settlement agreement however he was later again suspended for further acts of alleged misconduct.

3.14 JURISDICTION WHEN THERE IS A SETTLEMENT AGREEMENT 3.14.1 In Hodges v Urban Task Force Investments CC and others (JR840/12) [2013]

ZALCHB 295 (7 November 2013) it was held that a Commissioner was obliged to consider whether the applicant who had signed an agreement had in fact waived his rights in the agreement. The mere fact that he had signed the agreement does not determine the lawfulness of the agreement.

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3.14.2 In Cook4Life CC v CCMA and Others (2013) 34 ILJ 2018 (LC) where an employee claims he was induced by duress to have entered into the agreement the CCMA was empowered to pronounce on the agreement as part of its jurisdiction to determine the existence of a dismissal.

3.14.3 In National Education Health & Allied Workers Union on Behalf of Nkoana v South

African Nursing Council [2013] 4 BALR 420 (CCMA) the commissioner held the CCMA had jurisdiction to interpret settlement agreements. In this instance the employee party had entered into a full and final settlement agreement but reserved the right to refer the dispute afresh if he was not satisfied with the appeal outcome. The Commissioner held that under these circumstances the first agreement was in fact not full and final and the employee could pursue his dispute before the CCMA.

3.14.4 In Mohale v Net 1 Applied t/a Cash Paymaster Services Northern (Pty) Ltd [2013] 2

BLLR 199 (LC) It was held that the CCMA has jurisdiction to interpret and apply settlement agreements where the employer relies on the agreement claiming that in terms of the agreement the dispute was resolved.

3.14.5 In CTP LTD t/a Caxton Newspapers Division v Mphaphuli N.O and Others (JR501/13)

[2014] ZALCJHB 398 (14 October 2014) the court held that fact that section 24 of the LRA contemplates the interpretation of a collective agreement does not preclude the commissioner from deciding whether a dispute exists, and in order to do so, the commissioner may have to interpret a settlement agreement.

3.15 AUTHORIZATION TO ENTER INTO THE AGREEMENT 3.15.1 In Fakude & Others v Kwikot (Pty) Ltd (2013) 34 ILJ 2024 (LC) the Court reiterated the

principle that a Trade Union has authority, in terms of section 200 of the LRA to take decisions to settle disputes on behalf of all its members without necessarily obtaining the members‟ prior consent, even if the terms of the settlement agreement was to the detriment of the minority of the members.

3.16 PUBLIC POLICY 3.16.1 In Barkhuizen v Napier 2007 (5) SA 323 (CC) the court held that when dealing with

contracts the principle of pacta sunt servanda (contracts and clauses are law with binding force between parties) still applied. However on a challenge of public policy the Court could still decline to enforce contractual terms that are in conflict with the constitutional values even though the parties may have consented to them.

3.17 DURESS 3.17.1 In the matter of Experian SA (Pty) Ltd v Haynes and another (2013) 34 ILJ 529 (GSJ)

the Court with approval referred to the principles set out in Arend & another v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) and BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C) regarding the setting aside of contracts concluded as a result of duress. The Court confirmed that the party intending to rely on duress had to allege and prove that there was

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a threat of considerable evil such as to induce a reasonable fear of imminent or inevitable evil and that the threat or intimidation was unlawful or contra bonos mores (contrary to public policy or moral turpitude) and the moral pressure used must have caused damage.

The Court also recognized that in appropriate cases economic pressure or a threat of

economic harm could constitute duress. In this regard the Court referred to the principles set out in Medscheme Holdings (Pty) Ltd & another v Bhamjee 2005 (5) SA 339 (SCA). It was also held that hard bargaining does not equate to duress nor does imbalance in bargaining powers.

3.17.2 In Rambado v EZ Shuttle (Pty) Ltd (2012) 33 ILJ (CCMA) after signing a settlement agreement and accepting the benefits under the agreement referred a dismissal dispute to the CCMA claiming duress. The Commissioner held that the CCMA does have jurisdiction to pronounce on the validity of settlement agreements with regard to the merits of the dispute. The party relying on the duress had to prove each element thereof. Reference was also made to the matter of Arend and another v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) and Makiwane v International Healthcare Distributors (2003) 24 ILJ 2150 (LC).

3.17.3 In Ulster v Standard Bank of South Africa Ltd (C647/2012) [2013] ZALCCT 3 (15

February 2013) The Court held that if an employee wanted to set aside a Settlement Agreement the employee will have to show an element of duress as required by Common Law.

3.18 MISTAKEN IMPRESSION 3.18.1 In Concor Projects (Pty) Ltd t/a Concor Open Cast Mining v CCMA & Others [2014] 6

BLLR 534 (LAC). In this matter parties were under the mistaken impression that they were bound by a Collective Agreement and entered into a settlement agreement whereby they in essence withdrew their dispute. The Court ruled that settlement agreements could be set aside based on the mistaken impression parties had at the time when they entered into the agreement.

3.19 MISREPRESENTATION 3.19.1 The legal principles governing a defense that a settlement agreement was induced by

misrepresentation appear from Novick & another v Comair Holdings & others 1979 (2) SA 116 (W) and Ferguson v Basil Read (Pty) Ltd (2013) 34 ILJ 1163 (LC); [2013] 3 BLLR 274 (LC). The party relying on misrepresentation will have to be shown that the representation relied on was made ; it was a representation as to a fact; it was false; it was material, in a sense that it would have induced a reasonable person to enter into

the agreement; and

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it was intended to induce the person to whom it was made to enter into the agreement sought to be avoided.

3.20 WHEN ARBITRATION HAS TO BE REQUESTED AND WHAT IS THE TIME LIMIT 3.20.1 Where the CCMA receive an objection in terms of Rule 17 of the CCMA Rules, the Court in

Ceramic Industries Ltd v CCMA and another (2005) 12 BLLR 1235 (LC) held that the Applicant must under these circumstances request the CCMA to conduct an arbitration by completing a LRA 7.13 and serving it on the employer.

The arbitration must commence immediately after a certificate of non-resolution is issued. If it is impractical for the hearing to proceed for any reason, the arbitration may be adjourned.

Where the 30 days, since the referral to the CCMA (see Section 135[5]) was made, has

expired, the CCMA would have no power to conduct a conciliation. 3.20.2 In De Vries v Lionel Murray Schwormstedt & Low (2001) 22 ILJ 1150 (LC); (2001) 8

BLLR 902 907 par. 21 it was held that the employee wishing to pursue an alleged unfair dismissal dispute does not have to be in possession of a certificate of non-resolution of the dispute from the CCMA.

3.20.3 The commissioner must issue a certificate of outcome when conciliation has failed, at the

end of the 30 days or any further period agreed upon by the parties. The Court in Indoor Amusements (Pty) Ltd v CCMA & others (2004) 25 ILJ 2205 (LC) set aside a certificate of a commissioner who issued the certificate of outcome some two years after the matter was referred to the CCMA. The court further held where a request for arbitration is required, even where no certificate of outcome is issued at the end of the 30 day period, the referring party is nevertheless required to refer the dispute to arbitration within 90 days from the date the 30 day period ended.

3.20.4 In SATAWU obo Members v South African Airways (Pty) Ltd and others (JA54/13)

[2014] ZALAC 40 (14August 2014) the court held that the 90day period to refer a dispute to arbitration should be calculated from the day on which a certificate of outcome of conciliation was issued.

In NEHAWU obo Mofokeng and others v Charlotte Theron Children’s Home (JA35/03) [2004] ZALAC (9 July 2004) the Labour Appeal Court accepted that, in terms of section 10(7), the 90 day time limit applicable to arbitration referrals laid down by section 136(1) of the LRA is also applicable to the referral of disputes in terms of section10 of the EEA. Similarly, the merger of the EEA dispute resolution procedure with that of the LRA means that a dispute may be referred to the Labour Court if it remains unresolved for 30 days after referral to conciliation.

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3.21 EFFECT OF CERTIFICATE OF OUTCOME 3.21.1 It is now settled law that a commissioner acquires jurisdiction to arbitrate a dispute after a

certificate of non-resolution has been issued (see Fidelity Guards Holdings (Pty) Ltd v Epstein NO & others (2000) 21 ILJ 2382 (LAC); (2000) 12 BLLR 1389 (LAC)). It is the setting aside of the certificate of outcome that would render the commission without jurisdiction to arbitrate.

3.21.2 The principle laid down in the Epstein matter was followed in Velinov v University of

KwaZulu-Natal & others (2006) 27 ILJ 177 (LC), where it was held that as long as a certificate of outcome has not been set aside, the Commission retains jurisdiction to arbitrate the matter.

3.21.3 In EOH Abantu (Pty) Ltd v CCMA and others (2008) 29 ILJ 2588 (LC) it was held that a

certificate of outcome has nothing to do with jurisdiction. It was further held that should a conciliating Commissioner decline to make a decision on jurisdiction at conciliation, the arbitrating Commissioner is bound to arbitrate the dispute unless the certificate is set aside. Where the Commissioner elect to decide jurisdiction at conciliation, the ruling issued binds all the parties until it is reviewed and set aside by Court.

3.21.4 The view expressed in Bombardier Transportation (Pty) Ltd v Lungile Mtiya NO &

others (2010) 8 BLLR 840 (LC) that a certificate of outcome has nothing to do with jurisdiction is not only in conflict with the LAC judgment in Epstein, but also in conflict with the decision in Velinov,where both these matters were adjudicated by the same Judge.

3.21.5 The arbitrating commissioner will not have the power to decide a jurisdictional point afresh

in circumstances where the conciliating commissioner has already decided on jurisdiction at the conciliation phase and issued a certificate of non-resolution according to Avgold – Target Division v CCMA & others (2010) ILJ 924 (LC), and EOH Abantu (Pty) Ltd v CCMA & others (2008) 29 ILJ 2588 (LC).

3.21.6 In the event a jurisdictional challenge is heard and upheld prior to the Conciliation,

according to the Labour Court in Bombardier Transportation the commissioner is not required to issue a certificate of outcome as the dispute was never capable of being resolved by the CCMA.

3.22 WHETHER EMPLOYMENT RELATIONSHIP SHOULD BE PROVED AT CONCILIATION 3.22.1 In EOH Abantu (Pty) Ltd v CCMA and others (2010) 31 ILJ 937 (LC), it was held that

where a Commissioner is faced with a dispute of fact which should be determined by the leading of evidence, he/she should issue a certificate of outcome that the dispute remains unresolved and defer the issue to arbitration

3.22.2 See also Dempster v Kahn NO & others (1998) 19 ILJ 1475 (IC) in which it was found

that a conciliator does not have the power to determine an issue whether or not an employment relationship existed and that it was an issue that should be decided at arbitration.

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3.22.3 It was held in Bombadier Transportation (Pty) Ltd v Lungile Mtiya NO & others (2010) 8

BLLR 840 (LC) that if a jurisdictional issue has not been dealt with at conciliation, it must be dealt with at arbitration and a binding decision be taken through leading of evidence.

3.23 EFFECT OF PREMATURE REFERRAL OF A DISMISSAL DISPUTE

3.23.1 In Avgold - Target Division v CCMA & others (2010) ILJ 924 (LC); [2010] 2 BLLR 149 (LC), the court held that an employee whose contract of employment has been terminated by notice may in terms of s 191 (2A) refer a dispute to the CCMA once the employee has received the notice. If it is common cause that the dispute was referred prior to that, the CCMA will not have jurisdiction to conciliate or to arbitrate. If the issue was not decided at conciliation it must be decided at arbitration.

In terms of section 190(2)(D) of the LRAA of 2014, when termination is effected on notice, the date of dismissal is the date on which the notice expires or, if it is an earlier date, the date on which the employee is paid all outstanding salary.

3.24 POWERS OF THE ARBITRATOR

3.24.1 In Shoredits Construction (Pty) Ltd v Pienaar NO and others 1995 (16) ILJ 390 at 393, the court held that a Commissioner‟s discretion in deciding relief may validly be circumscribed by a pre-trial agreement. This agreement will limit the dispute. Parties are entitled to restrict the ambit or scope of arbitration and statutory proceedings, e.g to restrict the amount of back pay in terms of re-instatement in the pre-arbitration minute.

3.24.2 Parties are also entitled to limit the issues to be decided by the arbitrator e.g. by agreeing in

the context of a dismissal dispute that procedural fairness is not an issue to be decided (see Reunert Industries (Pty) Limited t/a Reutech Defence Industries v Naicker and others (1997) 12 BLLR 1632 (LC at 1367 – 1368).

An arbitrator exceeds his or her powers if he or she decides an issue falling outside the agreed terms of reference and commits a gross irregularity by not hearing the parties before doing so.

3.24.3 In Filta-Matix (Pty) Ltd v Freudenberg (1998) 1 SA 606 (SCA) at 614B-C dealt with the issue of a party seeking to recant from that which was recorded in a pre-trial minute. The court held in the absence of special circumstances, parties are bound by the agreement

3.24.4 In CUSA v Tao Ying Metal Industries and others (2008) 29 ILJ 2461 (CC) the Court held that Commissioners should identify the real issue and resolve that issue effectively and speedily.

3.24.5 In Equity Aviation Services (Pty) Ltd v CCMA & others (2008) 29 ILJ 2507(CC) it was

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held where a finding was made that a dismissal was substantively unfair reinstatement may be awarded with unlimited retrospective effect save that it may not be effective from a date earlier than the date of dismissal

3.24.6 In NUMSA obo Sinuko v Powertech Transformers (DPM) and others (CA16/2012)

[2012] ZALAC 34;[2014] 2 BLLR 133 (LAC); (2014) 35 ILJ 954 (LAC) (2 December 2013) the court held that the nature of the dispute is determined from the facts of the case and not by the employee‟s characterization thereof.

3.25 SECTION 147 DISCRETION

3.25.1 Should it become apparent after a referral that the parties to a dispute fall within the

registered scope of a bargaining council and that one of the parties to the dispute is not a party to the bargaining council, the CCMA may in terms of section 147 (3) (a) assume jurisdiction, or refer the dispute to the relevant council for resolution.

3.25.2 In Pankana CC t/a R & W Transport Components v Dreyer NO & others (2012) 33 ILJ

692 (LC) it was found that the Commission must exercise the discretion referred in section 147 (3) (a), before assuming jurisdiction to arbitrate a bargaining council case.

3.25.3 In Magic Company v CCMA & others (2005) 26 ILJ 271 (LC) the court expressed the view

that the Commission will only have jurisdiction in terms of disputes that fall within the ambit of a Bargaining Council. If the Commission exercise the discretion as per Section 147 (3) (a), it need not be done expressly and may be inferred from the fact that the CCMA appointed a commissioner despite knowledge that a bargaining council has jurisdiction.

The Commission may not assume jurisdiction in terms of section 147(3) (a) if both parties to the dispute are parties to a bargaining council.

3.25.4 If at any stage after a dispute has been referred to the Commission, it becomes apparent that the dispute ought to have been resolved through private dispute resolution in terms of an agreement between the parties to the dispute, the Commission may assume jurisdiction or refer the dispute to the appropriate person or body for resolution.

3.25.5 The court in SACTWU obo Stinise v Dakbor Clothing (Pty) Ltd & others (2007) ILJ 1318

(LC) did not find a private arbitration clause in a contract of employment to be binding and to exclude the jurisdiction of the council. In referring to section 199 of The LRA, the court noted that a collective agreement takes primacy over a private arbitration agreement clause in a contract of employment.

In exercising a discretion whether to assume jurisdiction a Commissioner must consider whether the private arbitration clause in the employment contract offered the employee less favourable terms than those prescribed in a collective agreement.

3.25.6 In NBCRFI V Carlbank Mining Contracts (PTY) LTD & Another (2012) JOL 28742 (LAC)

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the court held that where the private arbitration agreement fails to make provision for conciliation prior to arbitration and an undertaking on the part of the employer to pay for the costs of the arbitration, the private arbitration agreement was unenforceable.

3.26 BELATED ALLEGATION THAT UNION ACTIVITIES WAS THE REASON FOR THE

DISMISSAL

3.26.1 The court in Evan Gordon Enterprises (Pty) Ltd v Phetla NO & others (2012) 33 ILJ 229 (LC) held that when the issue of participation in union activities came to the fore late in the hearing as the supposed reason for the dismissal, the arbitrator should have enquired whether the employee was now seeking to rely on that reason as the reason for his dismissal and to advise him that he had no jurisdiction to determine the fairness of the dismissal.

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4. REPRESENTATION

4.1 LEGAL REPRESENTATION

4.1.1 In CCMA & others v Law Society Northern Provinces (005/13) [2013] ZASCA 118 dated 20 September 2013 the Court found that Rule 25 of the CCMA Rules were neither unconstitutional nor was it irrational. It held that there was no absolute right to legal representation and that nature of labour disputes was such that they should be dealt with speedily and with the minimum of legal formalities.

In arbitrations concerning the fairness of dismissal for misconduct or incapacity legal

representation should be permitted only when both parties and the commissioner consent thereto, or otherwise on application made to the Commission. The Commissioner should exercise his discretion to allow legal representation with reference to the factors listed in the CCMA Rules.

4.1.2 In Netherburn Engineering cc t/a Nethernburn Ceramics v Mudau & Others [2009] 30

ILJ 269 (LAC) it was held that arbitrations under the LRA was to provide a cheap, speedy and informal dispute-resolution system.

4.2 FACTORS TO CONSIDER IN DETERMINING WHETHER LEGAL REPRESENTATION

SHOULD BE ALLOWED 4.2.1 In NUM & Mohlalisi v Commission for Conciliation Mediation and Arbitration and

Others ZALAC [JA90/2013] handed down on 1 October 2014 the Commissioner refused legal representation specifically stating comparative ability as the reason. The Court held that there was no evidence that he was not considering the other factors in Rule 25(1)(c) of the CCMA rules as the dispute of Sexual Harassment was neither complex nor in public interest.

4.2.2 In Vaal Toyota (Nigel) v MIBCO and others [2002] 10 BLLR936 (LAC) the Court held that

the central issue would be whether or not it would be unreasonable of the party to deal with the dispute without legal representation. It also held that the factors stated in the rules should be considered in coming to a conclusion.

(see also Afrox Ltd v Laka & others [1999] 5 BLLR 467 (LC) at 471-2)); 4.3 REVIEWABLE IRREGULARITIES 4.3.1 In SA Post Office v Govender & Others (2003) 18 ILJ 1733 (LC) The Commissioner

refused legal representation but allowed him to be an observer, to take notes and to assist with the closing arguments. The Court found the Commissioner had acted against his own ruling by allowing this to happen and that this constituted a gross irregularity.

4.3.2 Coyler v Essack (1997) 18 ILJ 1382 (LC) after initially allowing a legal representative to be

part of the proceedings the Commissioner later changed his mind and without considerations refused to grant the applicant a postponement to get a new legal

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representative. The Court held this was a gross irregularity. Once legal representation is allowed it creates a right to legal representation and the Commissioner cannot withdraw this right without again giving considerations to the facts listed.

4.3.3 In Commuter Handling Services (Pty) Ltd v Mokoena & others [2002] 9 BLLR 843 (LC) it was held that it is a reviewable irregularity for a Commissioner not to consider all the

factors pertaining to legal representation. In this instance the Court held that the Commissioner‟s decision to refuse legal representation was unreasonable.

4.3.4 In SASOL Infrachem v Daniel and Others [2014] ZALAC 52 (21 October 2014) the Court

held that an arbitrator must consider at the outset of the arbitration, if his interest is one of the litigants, however small or trivial, should be disclosed. Failure to do so might result in a reviewable irregularity on the basis of a reasonable apprehension of bias.

4.4 FELLOW MEMBER OF EMPLOYER’S ORGANISATION 4.4.1 In AHI Employers Organisation obo Members v Commission for Conciliation

Mediation and Arbitration and Others [2012] ZALCJH (1 February 2012) it was confirmed by the Court that the CCMA Rules currently provides therefore that an employer party may be represent a Member of that party‟s employer‟s organization.

4.4.2 In NUM obo Mabote v Commission for Conciliation Mediation and Arbitration and

others [2013] 10 BLLR 1020 (LC) the Court held an employee may be represented by its union, irrespective of its constitution, as long as the employee is a member in good standing. The Court held further that it could not have been the intention of the legislatures (in terms of section 4(1) (b) of the LRA) to restrict the right of representation by a trade union.

4.4.3 In Bidvest Food Services (Pty) Ltd v NUMSA obo Others (C946/2014) [2014] ZALCCT

58 (31 October 2014) the court held that a worker has a right to representation by a trade union of his/her choice regardless of whether the workplace falls under the scope of the constitution of that union.

4.4.4 In TGWU v Coin Security Group (PTY) LTD [2001] 4 BLLR 458 (LC) it was held that an

employee may join a trade union to represent him at arbitration even after the dismissal has occurred.

4.4.5 In County Fair Food (Pty) ltd v CCMA [2003] 2 BLLR 134 (LAC) it was held that if a union

withdraws from a dispute, nothing prevents the applicant to continue with the dispute on his own.

4.5 LEGAL REPRESENTATION FOR JURISDICTIONAL OBJECTIONS 4.5.1 In Shell SA Energy (Pty) Ltd v National Bargaining Council for the Chemical Industry

& others (2013) 34 ILJ 1490 (LAC) legal representation is allowed for all jurisdiction challenges.

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5. CONCILIATION 5.1 IMPACT OF CATEGORISATION OF DISPUTE ON CERTIFICATE OF NON-ESOLUTION

AND REFERRAL 5.1.1 In National Union of Metal Workers of SA & others v Driveline Technologies (Pty) Ltd

(2000) 21 ILJ 142 (LAC) it was held that a party would not be bound by the description of the dispute indicated on the certificate by the Commissioner. It further makes no difference to the CCMA‟s jurisdiction whether the applicant had recorded that the dismissal is due to operational requirements, misconduct or capacity as the true dispute is still the dispute pertaining to the fairness of the dismissal regardless of the reason stated for such dismissal by the employee.

5.1.2 In Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and others [2010] 2 BLLR

149 (LC) confirmed the principles in Driveline, in that it is not for the conciliating commissioner to interrogate the nature of the dispute as it appears on the referral form and to make any ruling as to the forum to which an unresolved dispute may ultimately be referred. The referring party‟s categorization of the dispute triggers either arbitration or adjudication. Jurisdiction is conferred by the referring party‟s categorization of the reason for the dismissal.

5.1.3 In Parliament of Republic of South Africa v Charlton [2010] 10 BLLR 1024 (LAC), the

Court confirmed the principle set in Wardlaw v Supreme Moundings (Pty) Ltd (2007) 28 ILJ 1042 (LAC) where it was held that once it was apparent that the dispute ought to have been referred to arbitration the Court may stay the proceedings and refer the dispute to arbitration.

5.1.4 In Ingo Strautmann v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg and Bean

Suncoast (unreported Case No D412/07) it was held that the fact that the commissioner ticks a box on the 7.12 Form does not amount to a jurisdictional ruling pertaining either to the dispute or to the course of action the referring party must pursue thereafter.

5.1.5 In Bombardier Transportation (Pty) Ltd v Mtiya NO & others [2010] 8 BLLR 840 (LC) it

was held that a commissioner is bound to issue a certificate of outcome 30 days after the referral of the dismissal dispute. The certificate however does not confirm the commission‟s jurisdiction or preclude the arbitration commissioner from deciding jurisdictional points.

5.2 DISMISSAL AT CONCILIATION – NOT EMPOWERED

5.2.1 In Premier Gauteng & another v Ramabulana N.O & others (2008) 29 ILJ 1099 (LAC) the court held that the Commissioner was not empowered to dismiss applications, at conciliaton if parties fail to attend conciliation meetings. It would be proper for the Commissioner in these circumstances to issue a certificate.

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5.3 TELEPHONIC CONCILIATION PERMISSIBLE

5.3.1 In GIWUSA on behalf of Heyneke v Klein Karoo Kooperasie Bpk (2005) 26 ILJ 1083

(LC) the court held that telephone conciliations are permissible and not in contravention of the provisions of the LRA.

5.4 COMMISSIONER’S POWERS AT CONCILIATION 5.4.1 In Kasipersad v CCMA & others [2003] 2 BLLR 187 (LC) the Court held the

Commissioners may not advise parties on anything but procedural issues. The Commissioner must steer the parties to a mutually agreed outcome and in doing so must remain flexible in his approach.

“Even if a commissioner is invited by a party to give advice, such an invitation should be resisted. A commissioner has to be even-handed in dealing with the parties. If she gives advice to the one party, she would have to do likewise for the other party. That would create conflicts of interest for a commissioner. A commissioner who puts herself in such a situation would have great difficulty in acting with honesty, integrity and impartiality. Ethically, it is therefore untenable. (paragraph 27) Giving advice is also counter-productive to the objectives of conciliation. A party who is advised that she has a good case is unlikely to settle. One who is advised that he has a bad case is likely to capitulate, as happened in this case.”(paragraph 28)

5.4.2 In Bombardier (above) it was held that a commissioner should determine true jurisdictional

issues when raised at conciliation. These issues will include whether there was a proper referral, whether there needs to be a condonation application and whether there is bargaining Council with jurisdiction. Whereas other jurisdictional issues, which may require evidence can be determined at arbitration.

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6. CON-ARB 6.1 EFFECT OF NEITHER PARTY OBJECTING TO CON-ARB

6.1.1 In Pioneer Foods (Pty) Ltd t/a Sasko Milling & Baking (Duens Bakery) v CCMA &

Others [2011] 8 BLLR 771 (LC) it was held that a Commissioner must proceed with arbitration after conciliation if neither party has objected. (see section 191(5A) (c) read with rule 17 and 30 of the CCMA Rules). Only after a commissioner has commenced with the arbitration may the commissioner consider a postponement application. In this regard the commissioner consideration should be given to the principle of irreparable harm if the proceedings are not postponed as was held in Keerom Casa Hotel v Heinrichs and another [1999] 1 BLLR 27 (LC).

6.2 EFFECT OF AN OBJECTION TO CON-ARB

6.2.1 In Ceramic Industries Ltd v CCMA & Another [2005] 12 BLLR 1235 (LC) it was held that the result of a party objecting to taking part in a con-arb precludes the CCMA from invoking the provisions of section 191(5A) of the LRA.

If an objection was raised and a certificate of non-resolution is issued, the applicant must thereafter request arbitration by completing a LRA7.13 Form

6.2.2 In Modikwa Platinum Mine (Pty) Ltd v CCMA and Others [2012] 6 BLLR 578 (LC) it was also held that a commissioner cannot proceed with arbitration if there was in fact an objection lodged by either of the parties.

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7. ARBITRATION

7.1 DUTIES OF COMMISSIONERS 7.1.1 In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ

2405 (CC) at par 78 the Court considered and listed some factors which the commissioner had to consider. It held the commissioner must: 1. Consider the totality of the circumstances; 2. Importance of the rule that had been breached; 3. The reason for imposing the sanction; 4. The basis on which the employee challenged the dismissal; 5. The harm caused by the employee‟s conduct; 6. Whether additional training and instruction may result in the employee not repeating

the misconduct; 7. The effect of dismissal on the employee; 8. Long-service record

7.1.2 In Kobe and Another v CCMA and Others (JR2014/11) [2014] ZALCJHB 118 (Handed

down on 10 March 2014) it was held that the Commissioner must step into the arena to direct the parties if it is clear that they don‟t understand the proceedings. The Commissioner must caution the parties about the consequence of not challenging evidence and of not attacking substantive fairness of their dismissal. Commissioner must also ensure that they keep proper record of the proceedings conducted.

Inquisitorial approach Following an inquisitorial approach requires that the commissioner must point out to the parties that a new version was put to allow that other party an

opportunity to respond; instruct parties to put a version of which he is aware under oath warn parties that an adverse inference could be drawn of his acceptance of

uncontested evidence. For more detail, please see CCMA Guidelines: Misconduct Arbitrations.

7.1.3 In Land Bank v Nowosenetz NO and others (JR3392/10) [ 2013] ZALCJHB (handed

down on 2 November 2010) it was held that a commissioner must alert a party if it is evident that the party does not understand the nature of the proceedings and where the party fails to lead evidence on its version under oath. The Court also referred to the commissioner‟s duty under the Arbitration Guidelines, which became effective on 1 January 2012.

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7.1.4 In Raswiswi v CCMA and others (2011) 32 ILJ 2186 (LC) it was held the commissioner must be even handed regardless whether the commissioner uses inquisitorial or adversarial approach. Failure to be even handed would result in a reasonable apprehension of bias.

7.1.5 In Anglo Operations Ltd (Kriel Colliery) v CCMA & others [2014] 7 BLLR 719 (LC) it

was held that a commissioner was not obliged to remind representatives of large corporation to meet challenges of fairness where the challenges were raised at the onset of the proceedings and where a factual basis was laid for the allegation during the proceedings.

7.1.6 In Scholtz v Maseko NO & Others [2000] 9 BLLR 1111 (LC) it was held commissioner

must caution a party of the effect of not presenting viva voce evidence and where the party is a lay person the commissioner must advise the party of the rules of evidence. The Court also stated that there was no need for the commissioner to call an interpreter if it is evident that both parties understand English. It was also confirmed that there is a duty on commissioners to under specific circumstances advice a party of its right to legal representation if it would be in the interest of fairness.

7.1.7 In Mabitsela v Department of Local Government & Housing & Others [2012] 8 BLLR

790 (LC) the Court held the commissioner‟s rejection of the employee‟s formal request for an interpreter had impacted on the employee‟s right to a fair hearing.

7.1.8 In Klaasen v CCMA & Others [2005] 10 BLLR 964 (LC) it was held that where a witness

does not give evidence under oath this will affect the weight attached to the evidence. Further to this, the applicant must be warned of the danger of not giving evidence.

7.1.9 In Jansen v CCMA and Others (JR297/2009) [2014] ZALCJHB 76 (handed down on 20

March 2014) it was held the commissioner must consider the appropriateness of the sanction where it is evident that the employee breached an existing rule. In doing this the commissioner must take into account the totality of the circumstances. The commissioner must provide reasons after making a finding on the appropriateness of the sanction.

7.1.10 In Threewaterskloof Municipality v SALGBC (Western Cape Division) and Others

[2010] 11 BLLR 1216 (LC) it was held determining of the sanction was a separate component of the arbitration process.

7.1.11 In Cash Paymaster Services Northwest (Pty) Ltd v Paul Shabangu NO & others [2009]

5 BLLR 415 (LC) it was held that the commissioner must consider if the trust relationship was destroyed in evaluating the appropriateness of the sanction.

7.1.12 In Edcon Ltd v Pillemer No & Others [2008] 5 BLLR 391 (LAC) the Court held the

Commissioner must consider all facts and circumstances that emerged at arbitration and that evidence must be led on the breach of the trust relationship. The Court would only review a decision if it was so unreasonable that no reasonable decision maker in position of the commissioner would have reached it.

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7.1.13 In Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and others (JA2/2012) [2013] ZALAC28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) the court set aside the award as a result of the incorrect categorisation of the dispute. It is clear that commissioners have a duty to ascertain the true nature of the dispute.

7.1.14 In Chabalala v MEIBC and others (JR2963/2011) [2013] ZALAC JHB 299 the court held

that the fact that a commissioner conducts arbitration proceedings in a manner he deems fit, does not give him a licence to become engaged in proceedings to such an extent that it becomes questionable as to whether the arbitrator is a representative of one of the parties.

7.2 IMPACT OF MERIT RULINGS ON SUCCEEDING COMMISSIONER 7.2.1 In Sondolo IT (Pty) Ltd v Howes & Others [2009] 5 BLLR 499 (LC) it was held that a

commissioner was not bound by an earlier interlocutory ruling which a previous commissioner (who subsequently withdrew from the process) made on the admissibility of evidence. Rulings on merit are not binding on subsequent commissioners.

7.3 FUNCTUS OFFICIO

7.3.1 In PT Operational Services (Pty) Ltd v Retail and Allied Workers Union obo

Ngwetsana [2013] 3 BLLR 225 (LAC) it was held that a commissioner is functus officio only when the commissioner had taken a decision on the actual merits of the application. The maxim functus offico will only apply when an administrative organ has exercised all statutory powers in a particular matter. In this instance the commissioner regardless of an earlier ruling that there was a need for condonation rescinded the default award when condonation for the late filing of the rescission application was ultimately brought.

The Court held he acted within his powers and was not prohibited to grant the ruling because he was not fuctus officio as he had not previously dealt with the merits of the application for rescission.

7.4 ABSOLUTION FROM THE INSTANCE

7.4.1 In Joubert v Legal Aid South Africa, (2011) 32 ILJ 1921 (LC) the Court with approval

referred to the matter of Minister of Safety and Security v Madisha & Others [2009] 1 BLLR 80 (LC) where the principle of absolution from the instance was considered. The Court held that in appropriate circumstances the Court could grant it. The test was whether at the close of a plaintiff‟s case, there was sufficient evidence upon which a court, applying its mind reasonably to that evidence, could or might find for the plaintiff (see Claude Neon Lights (Pty) Ltd v Daniel 1976 (4) SA 403 (A)).

It was however held in the Madisha matter that it was irregular for commissioners to grant absolution from the instance as the commissioners was acting in terms of the LRA and had to ensure speedy dispute resolution. Absolution form the instance has the effect of not bringing a matter to finality. Commissioners are statutorily bound to bring finality to matters.

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7.5 POSTPONEMENTS

7.5.1 In The Only Professional Modern Autobody cc t/a Modern Collission Centre v MISA obo P J Gouws and 2 others (JR2811/2010 and J2215/10) (Delivered 14 June 2012) the Court held that the commissioner has a discretion to grant or refuse a postponement and that there was no right to a postponement. The Court confirmed with reference to Voster v CCMA and Others (2002) 23 ILJ 1899 (LC) that postponements in arbitration proceedings should not easily be granted.

7.5.2 In Coin Security Group (Pty) Ltd v Mshengu and Others 2001 (22) ILJ 910 (LC) it was held that because of the limitation on compensation that the applicant has a material interest in having the matter finalised. The Court further held that a party applying for the postponement should not assume that the postponement would be granted and should always be prepared in case it is refused.

7.5.3 In Northern Province Development Corporation v CCMA and Others (2001) 22 ILJ

2697 it was held that the LRA requires labour disputes to be resolved expeditiously and thus arbitrators have a wide discretion in granting or refusing to grant a postponement.

7.6 SECOND APPLICATION FOR POSTPONMENT

7.6.1 In Intersite Property Management Services v Khululekile Mchuba & Others (JR

1343/2011) [2013] ZALCJHB 217 (handed down on 13 August 2013) the Court held that where a postponement related to securing crucial evidence and such postponement could easily be remedied by an order of cost, the postponement should be granted. The Court with approval also referred to the matter of Western Cape Southern Suburbs Real Estate (Pty) Ltd t/a Seeff Properties v CCMA and others 2009 (30) ILJ 2158 (LC) where it was held that postponement should be dealt with in two stages. The first was to determine if the employer had provided a suitable reason for the application and thereafter the commissioner had to consider and deal with the question of prejudice.

7.7 FINDING A PARTY IN CONTEMPT 7.7.1 In Bargaining Council for the Clothing Manufacturing Industry & Another v Prinsloo

[2007] 9 BLLR 825 (LC) held that alluding to a possible review even before the commissioner had handed down his award could be regarded as contempt. Likewise conduct of disrespect and insults towards a commissioner. The Court held that the perception that contempt of commissioners or councils was not a serious offence should not be allowed to take root. Section 142(9) (b) applies to findings of contempt.

7.7.2 In Ciro Beverage Solutions (Pty) Ltd v SA Transport & Allied Workers Union & others (2014) 35 ILJ 1275 (LC) the court noted that in order to succeed in an application for civil contempt of court, an applicant must establish the existence of the order, its service or notice thereof, and non-compliance therewith. The respondent bears an evidential burden to establish reasonable doubt that the non-compliance was not wilful and mala fide, and if he fails to do so, civil contempt will have been established beyond reasonable doubt. The court stressed that service was a critical element to satisfy.

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7.7.3 In Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) it was held that the test for

disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed 'deliberately and mala fide'. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide. These requirements show that the offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court's dignity, repute or authority that this evinces.

7.8 COSTS

7.8.1 In South African Airways Technical (SOC) Ltd v SATAWU and Another (2014) 35 ILJ

1638 (LC) (8 November 2013) the Court considered when it would be appropriate to award costs in a dispute. The Court referred with approval to the matter of NUM v East Rand Gold and Uranium Co Ltd (1991) 12 ILJ 1221 (A) in which the legal requirements for cost orders were considered. The Court held that law and fairness should be balanced when making a finding with regard to costs. Consideration should be given to any special circumstance, whether the dispute was a bona fide one and the conduct of the respective parties.

7.8.2 In Wallis v Thorpe and Another [2010] 31 ILJ 1254 (LC) the Court also confirmed that the

requirements of law and fairness should dictate whether a cost order must be made. In labour disputes it is not automatic that cost should follow the result.

7.8.3 In Public Servant Association of SA on behalf of Khan v Tsabadi NO and others

[2012] 33 ILJ 2117 (LC) the Court held that it was fair to award costs in favor of the successful party as the party was compelled to engage in litigation and compelled to incur legal costs in doing so.

7.9 WITHDRAWALS

7.9.1 In Ncaphayi v CCMA & others (2011) 32 ILJ 402 (LC) it was found that the withdrawal of a

dispute referral is not the act of a functionary that is subject to the Court‟s review powers. It was further found that the withdrawal of a dispute by a party is akin to absolution from the instance, which does not prevent that party from reinstituting proceedings on the same cause of action. The commissioner plays no role in the decision and it should be noted that there is nothing in either the LRA or the CCMA rules that specifically deals with the question of withdrawal. The only exception to this is where a withdrawal is part and parcel of a final settlement of the dispute.

7.9.2 In Kgobokoe v CCMA & others (2012) 33 ILJ 235 (LC) it was held that where a dispute was withdrawn due to misunderstanding the case should be reinstated on the roll if such an application is brought.

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7.9.3 In SAMWU and Others v CCMA and another (J2448/13) [2013] ZALCJHB 303 (21 November 2013) the Court with approval referred to Ncaphayi and held that a withdrawal of the first referral does not deprive the CCMA of jurisdiction to enroll the matter for arbitration.

Commissioner must ensure that they do not pressurize parties into signing a withdrawal. As is eminent from the decisions referred to above it would be the best practice to record in a signed settlement agreement that the dispute is by agreement finally resolved on the basis that the matter is withdrawn by the applicant and that the applicant had filed a notice of withdrawal.

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8. EVIDENCE 8.1 BALANCE OF PROBABILITY 8.1.1 In Govan v Skidmore 1952 (1) SA 732 (N) the Court held that it was trite law that in

general, in finding facts and making inferences in a civil case, the court may go upon a mere preponderance of probability, even though in so doing it does not exclude every reasonable doubt, so that one may, by balancing probabilities select a conclusion which seems to be the more natural, or plausible conclusion from amongst several conceivable ones, even though that conclusion may not be the only reasonable one.

8.2 EVALUATING EVIDENCE - RELEVANCE ADMISSIBILITY AND WEIGHT 8.2.1 In Stellenbosch Farmers’ Winery Group Ltd and Another v Martell & Kie SA and

Others 2003 (1) SA 11 (SCA) the Court held that where a commissioner is faced with two conflicting versions before him the Commissioner must make a finding on the credibility of witnesses and on the probabilities of the two versions, to determine where the truth lies. The question that should be answered is whether the probabilities favour the party that bears the onus of proof. The Court further held that the credibility of a witness is in an extricable manner bound to the consideration of the probabilities of the case, the arbitrator should therefore resort to credibility where the probabilities fail to point which version embraces the truth more. The SCA explained the technique generally used by Courts for resolving factual disputes as one involving the making of findings on: (a) credibility of the various factual witnesses (will depend on tis impression about

the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as:

(i) the witness‟ candor and demeanor in the witness-box

(ii) his bias, latent and blatant (iii) internal contradiction in his evidence

(iv) external contradictions with what was pleaded or put on his behalf

(v) the probability or improbability of particular aspects of his version

(vi) the caliber and cogency of his performance compared to that of other

witnesses testifying about the same incident or events; (b) their reliability that will turn on the factors (a)(ii), (iv) and (V) on

(i) the opportunities he had to experience or observe the event in question;

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(ii) the quality, integrity and independence of his recall thereof.

(c) the probabilities, in this regard, it is necessary to analysis and evaluate the probability or improbability of each party‟s version on each of the disputed issues.

In a final step, the Court will then determine whether the party burdened with the onus of proof has succeeded in discharging it.

The above test was referred to with approval in the matter of The Director General: Department of Public Works: Limpopo v Sello Jermia Tselane (JR948/09, in Northam Platinum LTD v Fganyago NO & Others [2009] JOL 24212 (LC) and in Gwala v Commissioner for Conciliation Mediation and Arbitration and Others (D296/11) [2013] ZALCD 11 (14 May 2013).

8.2.2 In Sasol Mining (Pty) Ltd v Ngqeleni NO & Others (2011) 32 ILJ (LC) the Court held „one of the commissioner‟s prime functions was to ascertain the truth as to the conflicting versions before him‟.

8.2.3 In BANDA v GPSSBC and Another (JR3272/2009) ZALCJHB (26 February 2014) the

Court with approval referred to Standerton Mills (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others where the Court held that “Credibility issues are indeed difficult to determine in motion proceedings.

8.2.4 In Moodley v Illovo Gledhow and Others (2004) 25 ILJ 1462 (LC) the Court held that the

arbitrator who sat at the hearing, observed the witnesses, their demeanor and the manner in which they came across and is in the best situation to make credibility findings.

8.3 FAILURE TO CALL A WITNESS 8.3.1 In Bargaining Council for the Furniture Manufacturing Industry, KwaZulu – Natal v

UKD Marketing CC and Others (2013) 34 ILJ 96 (LAC) it was held that an adverse inference will be drawn against a party for failing to testify only if the evidence of the other party calls for reply. It is a prerequisite to the application of the rule that an adverse inference should be drawn from a party‟s failure to call a witness/es that the evidence that party faces must have been of such a nature that, at the time the other party closed its case, there was sufficient evidence to enable the court to say, having regard to the absence of any explanation, that the other party‟s version was more probable than not.

8.3.2 In Tshishonga v Minister of Justice and Constitutional Development and Another

(2007) 28 ILJ 196 (LC) it was held that the failure to call a witness is reasonable in certain circumstances, such as when the opposition fails to make out a prima facie case. However an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the fact as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavorable to him or even damage his case.

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8.3.3 In De Beer v Trudon (Pty) Ltd (1994) 15 ILJ 1057 (LAC) the Court with approval referred

to the matter of Food and Allied Workers Union and Others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ 1057 (LAC) where it was held that an evidential foundation had to be laid and that a party could not merely rely on arguments only, as arguments without a evidential basis would be no more than speculation.

8.4 TYPES OF EVIDENCE HEARSAY EVIDENCE 8.4.1 GENERAL

In summary, section 3 of the Law of Evidence Amendment Act 45 of 1988 provides the following in relation to the admissibility of hearsay evidence: Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless: a. Each party against whom the evidence is to be adduced agrees to the

admission of the evidence at such proceedings; or

b. The person upon whose credibility the probative value of such evidence depends, himself testifies at the proceedings; or

c. The Court, having regard to

The nature of the proceedings; The nature of the evidence The purpose for which the evidence is tendered; The probative value of the evidence; The reason why the evidence is not given by the person upon whose

credibility the probative the value of such evidence depends; Any prejudice to a party which the admission of such evidence might entail; Any other factor which should in the opinion of the court be taken into

account and the court is of the opinion that such evidence should be admitted in the interest of justice.

8.4.2 In Matsekoleng v Shoprite Checkers [2013] 2 BLLR 130 (LAC) the Court held that the

commissioner‟s decision not to accept into evidence an affidavit made by the alleged donor of milk to the applicant was a material mistake in law. The fact that the respondent could not cross-examine the deponent of the affidavit was not a legally sound ground to have refused admission of the affidavit. This aspect would only have been relevant on the question of the

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evidential weight the commissioner should have attached to the affidavit. The commissioner should have had regard to section 3 of the Law of Evidence Amendment Act 45 of 1988.

Further to this the Court held it was improper for the commissioner to have allowed hearsay evidence of the misrepresentation made to the security without due consideration for the exceptions of section 3 and the circumstances in which hearsay evidence can be allowed.

It is advisable to allow hearsay evidence in certain circumstances however it is for the commissioner to decide the evidentiary value thereof.

8.4.3 In Southern Sun Hotels (Pty) Ltd v SA Commercial Catering & Allied Works Union and

Another (2000) 21 ILJ 1315 (LAC) the Court held that the test with regard to the admissibility of hearsay evidence was whether it was in the interest of justice to admit such hearsay evidence.

8.4.4 In Swiss South Africa (Pty) Ltd v Louw NO and others (2006) 27 ILJ 395 (LC) the Court

held that depending on the circumstances of each particular case hearsay evidence may accordingly be admitted to the proceedings before the CCMA. Commissioners were required to deal with their disputes with the least legal formalities and with some flexibility as provided for in section 138 of the Act

8.4.5 The Sisonke Partnership t/a International Healthcare Distributors v National

Bargaining Council for Chemical Industry & Others (JA51/10)[2013] ZALAC 16 (19 July 2013) the Court with approval referred to the matter of Southern Sun Hotels and that of Swiss South Africa and confirmed the principle that hearsay evidence is allowed if it is in the interest of justice and that it was not irregular for the arbitrator to have relied on the hearsay evidence as the evidence was confirmed by other evidence.

8.4.6 In NUMSA obo ADAM v Volkswagen South Africa (Pty) Ltd [2002] 9 BALR 967 (CCMA)

the commissioner found a written statement by the alleged victim of sexual harassment to be admissible after a qualified psychologist, with a Masters degree in Psychology and 16 years‟ experience in private practice gave expert evidence on the psychological impact of acts of sexual harassment and rape. The commissioner held that it would be more in the interest of justice to admit the hearsay evidence than it would have been to exclude it.

8.4.7 In NUMSA obo Mnisi v First National Battery [2007] 10 BALR907 (NBCCI) at the internal

disciplinary hearing the presiding officer allowed the employer to submit a tape recording where an employee had confessed and implicated the applicants in the theft. The commissioner found that the presiding officer should not have, in the absence of some convincing explanation for why the informer could not be called, have admitted the tape recording. The dismissals were found to be unfair as the presiding officer had based her finding primarily on the tape recording and the employees were reinstated.

CIRCUMSTANTIAL EVIDENCE

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8.4.8 In Duncan Manufacturing v MEIBC and others [2010] ZALC 131 (7 September 2010) referred with approval to the matter in Komape v Spoornet (Pty) Ltd and Others [2008] ZALC 72 where the Court held that in assessing circumstantial evidence the arbitrator should always consider the cumulative effect of all the items of the evidence before him or her. In assessing the inference to be drawn from the fact the commissioner should look at the totality of the evidence and weigh it on a balance of probabilities. The inference must be drawn through a careful survey of the connection between the facts and their relationship to the offence alleged to have been committed by the employee.

In Komape the Court also cautioned that a distinction must be maintained between

permissible inferences and a mere conjecture or speculation.

EXPERT WITNESS 8.4.9 In IO Tech Manufacturing (Pty) Ltd and others v Gallager Group Ltd and another

[2014] 2 ALL SA 134 (SCA) the Court confirmed the principle that the opinion of an expert is admissible because it is based on special prior knowledge and skill in a particular subject.

DOCUMENTARY EVIDENCE 8.4.10 In Botha v S [2010] 2 ALL 116 (SCA) the Court held that in the absence of a challenge by

the other party as to the authenticity of the documentary evidence, copies could be accepted on the principle of best evidence.

8.4.11 In Trend Finance (Pty) Ltd and another v Commissioner for SARS and another [2005]

4 All SA 657 (C) it was held by the Court that a party seeking to rely on section 15(4) of the Electronic Communication and Transaction Act 25 of 2005 must show that the document sought to be admitted is a printout of information existing in electronic form.

8.5 PAROL EVIDENCE RULE 8.5.1 In Kingswood Golf Estate (Pty) Ltd v Witts-Hewinson and another [2014] 2 ALL SA 35

(SCA) the Court held, with reference to the Parol Evidence Rule, that once a contract has been reduced to writing no evidence may be given of its terms except the document itself, nor may the context of such document be contradicted, altered, added or varied by oral evidence.

8.5.2 In Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC) it was held that the Courts in labour

disputes, are not precluded by the parol evidence rule form looking beyond the terms of the contract to determine the true relationship between the parties.

8.6 PIERCING THE COPRORATE VEIL

8.6.1 In Bargaining Council for the Furniture Manufacturing Industry, KwaZulu –Natal v

UKD Marketing CC and others (2013) 34 ILJ 96 (LAC) the circumstances under which the corporate veil may be lifted, were summarized by reference to the cases referred to in

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Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790 (A) where it was held:

“Over the years it has come to be accepted that fraud, dishonesty and improper conduct

could provide grounds for piercing the corporate veil…it is undoubtedly a salutary principle that our Courts shall not lightly disregard a company‟s separate legal personality but should strive to give effect to and uphold it. To do otherwise would negate and undermine the policy and legal consequences that attached to it.”

8.6.2 In Bargaining Council for the Furniture Manufacturing Industry, KwaZulu – Natal v

UKD Marketing CC and Others (2013) 34 ILJ 96 (LAC) the court again citing Cape Pacific confirmed the principle that fraud, dishonesty or other improper conduct constituted grounds for piercing the corporate veil. However the court also noted that these are not the only grounds that may led to a piercing of the corporate veil because even companies that were not originally incorporated with the intention to deceive, may nevertheless in their operation present a facade that requires a piercing of the corporate veil.

8.6.3 In Esterhuizen v Million-Air Services CC (in liquidation) & others (2007) 28 ILJ 1251

(LC) the court held that a registered company is a legal persona distinct from its members who compose it. However in certain justifiable circumstances the court could disregard a company‟s separate personality in order to fix liability elsewhere for what is an act of the company. In so doing the court may shift its focus to the person who controls the company as if there is no separation between the company and that person.

8.7 POLYGRAPH TEST

See chapter 24

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9. RESCISSION 9.1 RESCISSION OF CERTIFIED AWARDS 9.1.1 It was held in Tony Gois t/a Shakespeare’s Pub v Van Zyl & others (2003) 24 ILJ 2302

(LC) that an arbitration award that was certified as such by the director and which may be enforced as if it is an order of the Labour Court may be rescinded if grounds for rescission exist and it is not necessary that the act of certification first be set aside by the Labour Court. The CCMA must consider all applications for rescission even in an instance where a writ has been issued by the labour court.

9.2 GROUNDS FOR RESCISSION 9.2.1 In Shoprite Checkers (Pty) Limited v CCMA and others (2007) 28 ILJ 2246 (LAC), the

court held that good cause should be read into Section 144 of The LRA. 9.2.2 In Northern Training Trust v Maake & Others (2006) 27 ILJ 828 (LC), the court held that

the test for rescission in terms of Section 144(a) of the LRA is bipartite.

Firstly it is concerned with whether the notice of set down was sent, and secondly whether the reasons proffered by the applicant is reasonable and acceptable. It is upon the Applicant to prove that he or she was not in willful default, and that he or she has reasonable prospects of being successful with his or her case, should the award be set aside.

9.2.3 In Ceramic Industries Ltd v CCMA & Others (2005) 12 BLLR 1235 (LC), the Labour

Court held that where a party intends at all times to defend proceedings and its default is not willful, then even though the party may formally have received notice of the proceedings, the granting of an award in that party‟s absence may constitute an error sufficient to justify rescission. Even where no satisfactory explanation is given for the party‟s default, other factors such as the strength of the defaulting party‟s case should be taken into consideration.

9.2.4 In Professional Transport Workers Union v Malema and Others (JA67/12) [2014]

ZALAC 53, the Labour Appeal Court upheld the appeal and set the rescission ruling aside where the commissioner did not consider good cause. The Court held good cause to be an independent ground for rescission in addition to grounds in Section 144 of the LRA.

9.2.5 In Northern Province Government Association v CCMA and Others (2001) 5 BLLR 539

(LC) the court held the applicant in a rescission application must show good cause and prove that he at no time renounced his defense, and that he had a serious intention to proceed with the case. To show good cause, the applicant must provide a reasonable explanation for his default, and must show that he has a bona fide defense.

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The applicant must place sufficient evidence before the Court to prove that these requirements are met. However, in order to prove that he has a bona fide defense, he need merely set out averments which, if established at the trial, would entitle him to relief.

9.2.6 In MM Steel Construction CC v Steel Engineering and Allied Workers Union of SA and

Others (1994) 15 ILJ 1310 (LAC) it was held the two essential elements ought nevertheless not to be assessed mechanistically and in isolation. While the absence of one of them would usually be fatal, where they are present they are to be weighed together with relevant factors in determining whether it should be fair and just to grant the indulgence.

9.2.7 In Lumka and Associates v Maqubela (2004) 25 ILJ 2326 (LAC), the court was of the

view, where an order was erroneously granted, it is not a requirement over and above that, to show good cause.

9.2.8 The LAC in the Shoprite Checkers case confirmed that section 144 should be interpreted

as including “good cause.” This means that good cause may also be a ground on which rescission may be granted. It does not mean that in all cases good cause needs to be shown before rescission may be granted.

Firstly, there should be an enquiry whether the notice of set down was given to the affected party. If the finding is that the notice of set down was not sent to the affected party (e.g. that it was sent to the wrong address or fax number and not received by the affected party) it would follow that the commissioner issuing the default award on the assumption that notice of the set down was given, erred in doing so and granted the default award erroneously. In such circumstances rescission should be granted irrespective whether the affected party has a bona fide case or prospects of success. Not giving proper notice would constitute an irregularity in the proceedings and would remain an irregularity irrespective of the merits of the case of an affected party.

Secondly, in the event of a finding that proper notice of the set down was given, it must further be considered whether the affected party has shown good cause for the default award or ruling to be rescinded. A finding that the default was not willful or due to gross negligence, that the rescission application is bona fide and that the affected party has a bona fide case would imply that the award was erroneously granted. The circumstances must be such that had the commissioner who granted the default award, known of it, a ruling would not have been made that the arbitration should proceed in the absence of the affected party and the matter would have been adjourned to enable the absent party to participate in the proceedings.

9.3 APPLICATION MUST FALL WITHIN THE AMBIT OF SECTION 144 9.3.1 In Builders Trade Depot v CCMA & others [2012] 4 BLLR 343 (LC), the unusual set of

facts presented itself, where the party who was present at the arbitration proceedings,

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rather than the absent party, applied for the rescission of a subsequent award. In this case, the difficulty the court had was that the employee was present, although he had an interest, he was not the party at default who displayed the interest to intervene in the case or its outcome and therefore falls outside the scope of section 144(a). The court held the employee, with his application, did not fall properly within any of the three circumscribed circumstances envisaged by Section 144.

9.4 SERVICE BY FAX 9.4.1 The court in Northern Province Local Government Association v CCMA & Others

(2001) 5 BLLR 539 (LC) held, in deciding whether or not fax transmission was received, proof that the fax was indeed sent creates a probability in favour of receipt, but does not logically constitute conclusive evidence of such receipt.

A party who claims that it did not receive a telefaxed notification must be given particulars of the proof of service and be afforded the opportunity to provide an explanation as to whether or not it was received.

9.4.2 In Edgars Consolidated Stores (Pty) Ltd v Kalanda & others [2007] 7 BLLR 632 (LC),

the court held a fax transmission slip or proof of registered mail is at best prima facie proof that a notice of set down was sent. In the absence of other proof that it was received commissioners should accept the mere say so of an applicant for rescission that he/she/it did not receive the notice of set down.

9.4.3 The court in Inzuzu I.T. Consulting (Pty) Limited v CCMA & others (2010) 12 BLLR 1288

(LC) held that it is an irregularity not to serve a notice of set down of a rescission application at a chosen service address and a gross irregularity to dismiss a rescission application in cases where the set down was not served at a chosen service address and the applicant party failed to attend.

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10. CONDONATION 10.1 A referring party loses the right to be heard if a dispute is referred late unless the late

referral is condoned. In such cases the referring party must convince a commissioner that condonation should be granted. The relevant factors for consideration are listed in Rule 9 of the CCMA Rules.

10.2 In Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532B-E the view was held that the factors in Rule 9 of the CCMA Rules are interrelated and not individually decisive in granting condonation. The weight to be attached to any one of these factors may vary from case to case. What is needed is an objective conspectus of all the facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong, or the importance of the issue and strong prospects of success may tend to compensate for a long delay (see also SA Broadcasting Corporation v Commission for Conciliation, Mediation and Arbitration & others (2003) 24 ILJ 999 (LC)).

10.3 The Labour Appeal Court in Moila v Shai NO and Others (2007) 28 ILJ 1028 (LAC),

confirmed the principle that where „no explanation has been given for the delay or an “explanation” has been given but such “explanation” amounts to no explanation at all, it is not necessary to consider the prospects of success‟

10.4 In Independent Municipal & Allied Trade Union obo Zungu v SA Local Government

Bargaining Council & others (2010) 31 ILJ 1413 (LC) the court expressed the view that in explaining the reason for the delay it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the court to be in a proper position to assess whether or not the explanation is a good one.

10.5 In Chemical Energy Paper Printing Wood & Allied Workers Union & others v Metal

Box t/a MB Glass (2005) 26 ILJ 92 (LC) found that Commissioners should be hesitant not to grant condonation in cases where the delay was the fault of a representative. There are however limits beyond which a commissioner should not condone non-compliance with the time frames even if it was due to the fault of the representative. Where there has been a long delay commissioners should consider what steps were taken by the party applying for condonation to ascertain whether all the procedural steps were timeously taken by the representative and, if not, to ensure that it was done.

10.6 In Arnott v Kunene Solutions & Services (Pty) Ltd (2002) 23 ILJ 1367 (LC) the court

agreed with the submission that the applicant should not be punished for the ills of his attorneys. The onus is on the applicant to satisfy the court that condonation should be granted. There are limits, however, even where the Applicant‟s attorney is largely to blame for the delay, beyond which the courts are not prepared to assist the applicant.

See also Meintjies v H D Combrinck (Edms) Bpk 1961 (1) SA 262 (A) at 263H-264A; Saloojee & another NNO v Minister of Community Development 1965 (2) SA 135 (A) at 140H-141A; Reinecke v IGI Ltd 1974 (2) SA 84 (A) at 92F-H

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10.7 In PPWAWU & others v AF Dreyer & Co (Pty) Ltd [1997] 9 BLLR 1141 (LAC) the Court held employees are not entitled to rely on the tardiness of their representative. Although the delay was caused by the negligence of the representative, there are limits to which applicants can rely on such negligence even when they are personally innocent of any tardiness.

10.8 In South African Post Office Ltd v Commission for Conciliation, Mediation and

Arbitration & others [2012] 1 BLLR 30 (LAC) the court condoned the late filing of the records of the LC proceedings on the basis of strong prospects of success.

10.9 The Labour Court in Algoa Bus Company v SATAWU & others

[2010] 2 BLLR 149 (LC) refused an application for condonation where the employees failed to provide a reasonable explanation for the belated opposition to the employer‟s application for damages caused by the unlawful strike.

10.10 In NEHAWU & others v Vanderbijlpark Society for the Aged [2011] 7 BLLR 690 (LC)

the court refused an application for condonation for the alleged unfair retrenchment that was 3 months out of time, and where the Union relied principally on its internal procedures to explain the delay. The court reasoned unions are expected to devise procedures to comply with statutory deadlines.

10.11 In Anglo Platinum Ltd v Mmapitsa & others [2011] 11 BLLR 1048 (LC) the court

dismissed the application where the Applicant delayed the review application for nearly two years without pursuing the matter beyond filing the founding affidavit, and blaming the attorney for the delay.

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11. UNFAIR DISMISSAL – GENERAL FIXED TERM CONTRACTS 11.1 TERMINATION OF FIXED TERM CONTRACT 11.1.1 In Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC) the Court held that the formal

contract between the parties did not preclude the court from objectively determining the true nature of the relationship between the parties. As such the court was willing to look beyond the terms of the contract to determine the true relationship. The Court applied the “reality test” to determine what the reality of the relationship was.

11.1.2 In Sindane v Prestige Cleaning Services (2010) 31 ILJ 733 (LC) the Court held that a

fixed term contract terminates by operation of law at the end of its term. Such termination does not constitute a “dismissal”.

11.1.3 In Fidelity Supercare Cleaning (Pty) Ltd v Busakwe NO and Others [2010] 3 BLLR 260

(LC) the Court held that the term of a fixed term contract could be determined by reference to a specific event. This was especially true because of the nature of the cleaning sector where the service contracts with a client are inextricably tied to the employment contract with employees. (see:The Sectoral Determination for the Contract Cleaning Sector).

11.1.4 In Laas v Blue Disa Trading 310 cc [2014] 9 BALR 917 (CCMA) the commissioner

confirmed that the expiry of a one month fixed term contract does not constitute a dismissal. 11.1.5 In Buthelezi v Municipal Demarcation Board [2005] 2 BLLR 115 (LAC) it was held that

an employee on a fixed term contract could not be retrenched before the expiry of the contract.

11.1.6 In PSA obo Mbiza v Office of the Presidency (2014) 3 BLLR 275 (LC) the Court, with

reference to section 195 of the LRA held that compensation is in addition to any amount to which the employee is entitled to in terms of his/her contract of employment.

11.1.7 In Independent Municipal And Allied Trade Union and others v City of Johannesburg

Metropolitan Municipality and others [2014] 6 BLLR 545 (LAC) the court confirmed that the onus was on the employees to prove that they had a reasonable expectation that the contract would have been renewed and that an error would not give employee reasonable expectation of extension.

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11.2 DISMISSAL DEMANDED BY CLIENT OF TES

Employees earning below the BCEA threshold, employed on Fixed Term Contracts will have more protection under the new LRAA of 2014 (Section 198B read with 198A (3)). It is anticipated that the amendments will come into operation from 1 January 2015. Commissioners will have to consider the new developments in terms of the new deeming provisions.

11.2.1 In Nape v INTCS Corporate Solutions (Pty) Ltd [2010] 8 BLLR 852 (LC) a client

instructed it TES to remove an employee from its premises where after the TES retrenched the employee on the basis of operational requirement. The Court held that a client and the TES could not regulate its relationship in a manner that enables either the client or the TES to treat the employee in a manner that would be contrary to the requirements of fairness in the LRA. The Court held that the provisions of the contract deprived the employee of the statutory protection which was found to be against public policy and unlawful.

It specifically held that “…any clause in a contract between a labour broker and a client

which allows a client to undermine the right not to be unfairly dismissed, would be against public policy…an illegal demand can never found the basis to justify a dismissal based on operational requirements…By the same token s 189 of the Act cannot be used to disguise the true reason for dismissal…”

11.2.2 In Mnguni v Imperial Truck System (Pty) Ltd t/a Imperial Distribution (2002) 23 ILJ 492

(LC) a client also demanded that an employee be removed from its premises after allegations of theft was raised. The TES adhered to the client‟s request and when no alternative for the employee could be found he was retrenched. The Court held that in the absence of any proof that the client would have cancelled the contract if the TES did not comply that the employee‟s dismissal was unfair.

11.2.3 In NUMSA obo Daki v Colven Associates [2006] BALR877 (MEIBC) the Commissioner

held that the purpose of the labour law legislation would be undermined if TES and their clients were allowed to evade the provisions by entering into contract, the provisions of which enable them to dismiss employees without a fair reason and without following a fair procedure.

11.2.4 In Jonas v Quest Staffing Solutions [2003] BALR 811 CCMA an employee‟s contract

was terminated as the client no longer required his service. The commissioner held that despite the contractual provisions in the employee‟s employment contract which provided that the contract could be terminated at the instance of the client that the employer, a TES had no right to dismiss the employee without first following the legal procedures laid down in the LRA. The employer was ordered to pay the applicant the balance of the contract period.

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11.3 CONSTRUCTIVE DISMISSAL 11.3.1 In Strategic Liquor Service v Mvumbi NO and others (2009) 30 ILJ 30 1526 (CC) held

that the test for constructive dismissal does not require that the employee have no choice but to resign, but merely that the employer should have made continued employment intolerable.

11.3.2 In Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC) the

Court held that the first test was whether, when resigning, there was no other motive for the resignation, in other words, the employee would have continued the employment relationship indefinitely had it not been for the employer‟s unacceptable conduct.

11.3.3 In Albany Bakeries Ltd v Van Wyk & Others [2011] JOL 27545 (LAC) the Court held it

was critical to consider in constructive dismissal case, whether the employer had made continued employment intolerable for the employee. The Court pointed out that the employer had a grievance procedure, which the employee should have exhausted before his resignation. The employee also had an option to challenge his alleged demotion under the provisions of the LRA, which the employee had not done. As such the Court held the dismissal was not a last resort and as such the employee had not proven constructive dismissal.

11.3.4 In Motshegoa v Police and Prisons Civil Rights Union [2014] 8 BALR 808 (CCMA) the

commissioner held the employee had proven that she was constructively dismissed after she was unilaterally transferred to a more menial position and threatened with disciplinary action when she complained about it.

11.3.5 In Bothma v Fisher Incorporated Attorneys [2012] 5 BALR 475 (CCMA) the

Commissioner held that the employee was within her right to resign and claim constructive dismissal after the employer stopped paying her salary.

11.4 CONSTRUCTIVE DISMISSAL NOT NECESSARILY UNFAIR 11.4.1 In Moser Industries (Pty) Ltd v Venn [1997] 11 BLLR 1402 (LAC) it was held that like

actual dismissal, constructive dismissal is not inherently unfair.

DISMISSAL WITHOUT PRIOR WRITTEN WARNINGS 11.5 PROGRESSIVE DISCIPLINE 11.5.1 In Gcwensha v Commission for Conciliation, Mediation & Arbitration & others (2006)

27 ILJ 927 (LAC) it was held that a final written warning is not a bar for dismissal and that the employer was entitled to take into account the cumulative effect of acts of negligence, inefficiency and/or misconduct.

11.5.2 In Timothy v Nampak Corrugated Containers (Pty) Ltd [201] 8 BLLR (LAC) it was held

after and employee dishonestly posed as an attorney that in these circumstances where

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there was nothing more than an aggressive denial and a continuation of dishonesty that a lesser, progressive sanction would not have been justifiable

THE APPRORIATE REMEDY FOR UNFAIR DISMISSAL 11.6 FACTORS TO CONSIDER 11.6.1 In Dr. D.C. Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC) the Court

highlighted some factors which should be considered when a determination is made whether or not the employer should pay compensation. These included

The nature of the reason for the dismissal; Whether the unfairness of the dismissal is on substantive or procedural grounds or

on both With regard to the procedural unfairness the nature and extent of the deviation

from the procedural requirements; If the reason relates to misconduct, whether the employee was guilty or innocent;

if he was guilty whether dismissal was the appropriate sanction; The consequences to the parties if compensation is awarded and so to the

consequence if it is not awarded; The impact of any wrongdoing on the side of the employee on the employer or its

business; Any conduct, by either party, that promotes or undermines any of the objectives of

the Act;

In this matter the Court held that as the employer made a genuine and reasonable offer of reinstatement, which, the employee rejected without reason. Had the employee accepted the offer the dispute would have effectively been settled and would have taken away the need for compensation. The Court held it was not necessarily unfair not to grant an unfairly dismissed employ no compensation especially where reinstatement or re-employment was not sought. (see also CCMA Guidelines: Misconduct Arbitrations – The Arbitration Guidelines)

11.6.2 In Nyavhane v Voice on One [2004] 11 BALR 1419 (CCMA) the commissioner held the

dismissal was procedurally unfair but as the employee was clearly dishonest on a number of occasions and therefore not entitled to any compensation.

11.7 PROVIDING ADEQUATE REASONS FOR AMOUNT 11.7.1 In Mohlakoana v Commissioner, Commission for Conciliation, Mediation and

Arbitration and Another [2010] 10 BLLR 1061 (LC); (2010) 31 ILJ 2688 (LC) The Court held merely stating that an amount is just and equitable was not sufficient to justify the amount of compensation awarded. In terms of Section 138(7)(a) of the LRA the commissioner was obliged to provide brief reasons for any remedy awarded.

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11.8 PATRIMONIAL LOSS 11.8.1 In Lakomski v TTS Tool Technic Systems (Pty) Ltd (2007) 28 ILJ 2775 (LC), the Court

held that the employee was unfairly retrenched. She however found alternative employment, at a higher salary within days of her dismissal. The Court held that the test in deciding whether compensation should be granted is not whether the employee has suffered patrimonial loss although that is a factor that the Court may take into account. The other factors the Court would consider included how the employee was treated and the steps the employer had taken to ensure it complied with the LRA it held that the compensation amount must be just and equitable.

11.8.2 In Nape v INTCS Corporate Solutions (Pty) Ltd (2010) ILJ 2120 (LC) the Court

recognized that the employee had suffered no financial harm but that it stated that this was not the test as this was not a bar for granting compensation, especially in the circumstances of this case where the employee was retrenched. Retrenchment is a non-fault dismissal and an employee should not be left without remedies if found that it was unfair.

11.9 COMPENSATION FOR PROCEDURAL UNFAIRNESS

11.9.1 In Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89

(LAC) The Court held that although the dismissal had been procedurally unfair (non-compliance with section 189) the employer had tried to remedied its failure to properly discuss selection criteria soon after its final decision was taken but that the union and the employees had been unreasonably obstinate in refusing to discuss these criteria. The Court accordingly found that the employees were not entitled to compensation.

11.10 DISMISSAL TO COMPEL ACCEPTANCE OF A DEMAND

The implication of the amendment to section 187(1)(c) of the LRAA any dismissal related to an employee‟s refusal to accept a demand could be deemed to be an automatic unfair dismissal.

11.10.1 In NUMSA & others v Fry’s Metals (Pty) Ltd (2005) 26 ILJ 689 (SCA) the Court held that

only conditional dismissals which was aimed at compelling an employee to accept an employer‟s demand fell under the provision of section 187(1)(c) of the LRA. If the dismissal was final and not reversible on acceptance of the demand it did not constitute an automatic unfair dismissal.

The Court held that the only factual enquiry before it was whether the employer‟s reason

for effecting the dismissal was one that was aimed at compelling the employee to accept a demand.

(see also chapter on section 189 / 189A)

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11.10.2 In Solidarity obo Wehncke v Surf4Cars (Pty) Ltd (2011) 32 ILJ 3037 (LC) The Court

followed the principles set out in Fry‟s Metal and confirmed that the type of dismissal‟s envisaged under section 187(1)(c) of the LRA was the type where the decision to dismiss the employee was not final and that the dismissal was not effected to ensure the employee accept the demand.

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12. DISMSSAL FOR MISCONDUCT - PROCEDURAL FAIRNESS 12.1 GENERAL

A distinction must be drawn between cases where workplace discipline is regulated by a collective agreement or by a contract of employment or by employment practices and policies on the one hand and cases where it is not regulated in this way, on the other hand. This is recognised in the Code of Good Practice: Dismissal (“the Code”) in that provides that it was not intended as a substitute for disciplinary codes and procedures that are the subject of collective agreements. The minimum standard of procedural fairness appears from the Code of Good Practice: Dismissal.

See also the CCMA Guidelines: Misconduct Arbitrations 12.2 MINIMUM REQUIREMENT FOR PROCEDURAL FAIRNESS 12.2.1 In Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27

ILJ 1644 (LC); [2006] 9 BLLR 833 (LC) it was held that the employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.

12.2.2 In Nitrophoska (Pty) Ltd v CCMA & others [2011] 8 BLLR 765 (LC) the senior manager was

interviewed by management after his wife was convicted of defrauding the company. During the interview he was asked how he suggests the employment relationship could be sustained. The Court held that the informal procedure was sufficient in the circumstances to satisfy the requirement of procedural fairness.

12.3 DISCIPLINARY ACTION AGAINST SHOP STEWARD (ITEM 4(2) OF THE CODE OF

GOOD PRACTICE)

See CCMA Guidelines: Misconduct Arbitrations 12.3.1 In BIFAWU & another v Mutual and Federal Insurance Company Ltd [2006] 2 BLLR

118 (LAC) the Court considered the fact that the employer had failed to consult with the union before taking disciplinary action against its shop steward. The Court held that this would not automatically render a dismissal procedurally unfair as long as there is no prejudice suffered by the employee.

12.3.2 In POPCRU obo Masemola & others v Minister of Correctional Services (2010) 31 ILJ

412 (LC) an interdict was granted lifting the suspension of shop stewards after they were suspended without a hearing for allegedly inciting employees not to attend a prayer

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meeting. The Court held the suspension was procedurally unfair as the employees were entitled to pre-suspension hearings.

12.3.3 In NCBAWU v Masinga & others [2000] 2 BLLR 171 (LC) the employer‟s failure to comply

with item 4 (2) was not regarded as fatal on the ground that schedule 8 is not part of the law but merely a guideline of good practice. The fact that the employer did not comply with item 4(2) did not render the process defective. The employee was however still entitled to have a fair hearing.

12.4 LEGAL REPRESENTATION AT DISCIPLINARY ENQUIRIES 12.4.1 In MEC: Department of Finance, Economic Affairs and Tourism: Northern Province v

Mahumani [2005] 2 BLLR 173 (SCA) it was held that an employee could under certain circumstances, be entitled to the right of legal representation at a disciplinary enquiry. In this instance the employer‟s disciplinary code was a guideline and the Court held in appropriate circumstances it might be deviated from. As such the presiding officer had the right to use his discretion in deciding whether to depart from the prohibition on legal representation.

12.4.2 In Hamata & another v Chairperson Peninsula Technikon Internal Disciplinary Committee & others 2002 (5) SA 449 (SCA) the Court held that any absolute rule excluding legal representation in all circumstances would be struck down as being unconstitutional. The Court summed up the current legal position on rules regulating legal representation in administrative proceedings as follows;

“There may be administrative organs of such a nature that issues which come before them are always so mundane and the consequences for their decisions for particular individuals so insignificant that a domestic rule prohibiting legal representation would be neither unconstitutional nor required to be „read down‟ (if its language so permits) to allow for the exercise of a discretion in that regard.”

12.4.3 In Van Eyk v Minister of Correctional Services & others [2005] 6 BLLR 638 (EC) it was held that the chairperson of the enquiry had not applied his mind to all the issues surrounding legal representation. The chairperson had not considered that legal representation would have ensured a proper ventilation of the issues and specifically whether or not the charges against the applicant had fallen away which was a cause of some complexity in respect of the dispute. The Court held that the circumstances of this matter justified allowing legal representation and as such ruled that the employee was entitled to be represented at the point when the hearing resumed.

See also Majola v MEC, Department of Public Works, Northern Province & others [2004] 1 BLLR 54 (LC)

The factors that a chairperson of a disciplinary enquiry should be taking into account in exercising the discretion include the following:

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the nature of the charges brought; the degree of the factual or legal complexity attendant upon considering the

charges; the potential seriousness of the consequences of an adverse finding; the availability of suitably qualified lawyers amongst council staff; the nature of the prejudice to the employer in permitting legal representation; whether there is a legally trained initiator; and any other factor relevant to the fairness of restricting the alleged transgressor

to the kind of representation mentioned in the notice to attend the disciplinary enquiry.

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13. DISMSSAL FOR MISCONDUCT - SUBSTANTIVE FAIRNESS 13.1 In Fidelity Cash Management Services v Commission for Conciliation, Mediation and

Arbitration and others [2008] 3 BLLR 197 (LAC) It was held that fairness is determined mostly on the basis of the reason for the dismissal which the employer had given at the time of the dismissal. The employer will not be entitled to introduce new or different reasons at arbitration or review and where the reason given for the dismissal at the time, was not the true reason, then the Court or tribunal must determine the fairness based on the true reason for the dismissal.

13.2 SECOND ENQUIRY / CHANGING THE CHAIRPERSON’S DECISION 13.2.1 In BMW (SA) (Pty) Ltd v Van der Walt (2000) 21 ILJ 113 (LAC) the Court held that the

yard stick in all circumstance was one of fairness. It was also held that consideration should be given to an employer‟s disciplinary code and if there is circumstances surrounding the matter which would justify a second hearing being held.

13.2.2 In Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC): [2004] 3

BLLR 199 (LAC) an employer issued an employee with a written warning for making fraudulent petty cash claims. Not all the evidence was before him at the time. A disciplinary enquiry was later held where the employee was dismissed. The Court held that the test in Van der Walt was one of fairness and that the commissioner failed to apply the principle. The Court held that the dismissal was fair.

13.2.3 Factors to consider in determining if a second enquiry would be fair:

FACTORS TO CONSIDER

whether chairperson conducted the first hearing in good faith; whether the chairperson had the power to make a final decision, or only

make a recommendation; whether the first inquiry was conducted in accordance with the

employer's disciplinary code; whether the employer acted in good faith when it decided to hold the

second inquiry; whether the second inquiry was provided for in the disciplinary code; whether the second inquiry itself conformed with the principles of natural

justice or, much the same; whether factors were taken into account in the second inquiry which the

employee did not have an opportunity to answer; whether and in what circumstances new and relevant information came

to light after the first hearing; the time between the first hearing and the second; the gravity of the employee's offence; the extent to which the penalty imposed by the first chairperson was out

of kilter with the sanction prescribed by the disciplinary code and those

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actually imposed in practice for the particular offence (i.e. whether the leniency of the penalty induced a 'sense of shock');

whether, in cases where the employee was found not guilty by the first presiding officer, the finding was supported by the evidence.

Whether the seriousness of the charges and the consequences thereof in the workplace was properly addressed during the first enquiry;

whether an irregularity was committed during the first hearing and, if so, the nature of it;

whether the second enquiry was instituted soon after the employer became aware of the outcome of the first enquiry. In this regard fairness requires that disciplinary action should be taken within a reasonable time of the employer becoming aware of misconduct and that the disciplinary action should reach finality within a reasonable time. A long delay may indicate that the employer had at first accepted the outcome of the first hearing in which event it would probably not be fair to hold a rehearing; and

If it was through the alleged offender‟s actions that the evidence was not available during the first hearing that would weigh in favour of a finding that a rehearing was fair.

13.2.4 In Greater Letaba Local Municipality v Mankgabe NO & others [2008] 3 BLLR 229 (LC)

an employee caused a serious accident with the employer‟s vehicle, which he was not authorized to drive or have in his possession at the time. The chairperson of the enquiry found that a written warning and 10 days suspension was the appropriate sanction. The decision was however subject to approval of the employer‟s executive committee, who did not agree with the fining and imposed a sanction of dismissal without granting the employee a further hearing.

The Court held that a wrong decision should not be allowed to stand due to the chairperson‟s innocent motives and that the employer was entitled to alter a lesser sanction imposed by a disciplinary tribunal to a sanction of dismissal in order to preserve consistent application of discipline in the workplace. The decision in Greater Letaba was confirmed by SARSV CCMA and Others [2014] 1 BLLR 44 (LAC)

13.2.5 In Cape Town City Council v Masitho &others (2000) 21 ILJ 1957 (LAC) it was held

fairness requires that disciplinary sanctions must be imposed consistently on delinquent employees. (The Court in Greater Letaba followed the principles in Cape Town City Council).

13.2.6 In MEC for Finance, Kwazulu Natal and another v Dorkin No & another [2008] 6 BLLR

540 (LAC) an employee through his actions caused losses of approximately R 1, 2 million. The Chairperson of an internal enquiry held that a final written warning would suffice but the KZN government sought the dismissal of the employee and approached the Labour Court to review and set aside the decision of the tribunal. The Court held that state departments

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must be permitted to approach the courts to seek interference with decisions of its disciplinary tribunals with the view to rectifying the decision. The Court set aside the tribunal‟s decision on the ground that it was unreasonable and ordered that the employee be dismissed.

13.2.7 In Samson v CCMA [2009] 11 BLLR 1119 (LC) the Court held it was not unfair for an

employer to overturn the sanction of a final written warning and to dismiss the employee in his absence, after the employee was found guilty of distributing pornographic material to other employees and to thereafter advise the employee of his right to appeal the employer‟s decision.

13.2.8 In Solidarity/MWU on behalf of Van Staden v Highveld Steel & Vanadium & another

(2005) 26 ILJ 2045 (LC) it was found that it was fair in the circumstances of that case for a second disciplinary enquiry to be held. The disciplinary tribunal found that the employee had probably used racially abusive language but nevertheless found the employee not guilty. After a shop steward complained the employer wanted to hold a rehearing. Its disciplinary code made provision for a rehearing in certain circumstances. The employee approached the Labour Court for an order interdicting the employer from holding such a rehearing. The Labour Court refused to grant the interdict because the disciplinary tribunal had committed an obvious irregularity.

13.2.9 In SACCAWU & others v Irvin & Johnson Ltd (1999) 20 ILJ 2302 (LAC); [1999] 8 BLLR

741 (LAC) the Court held that where there is a number of employees who have committed misconduct that the best one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of discretion in each individual case.

The Court held further that if a chairperson conscientiously and honestly, but incorrectly

exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness towards the other employees. It would mean no more than that his assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision. In a case of a plurality of dismissals, a wrong decision can only be unfair if it is capricious, or induced by improper motives or worse, by a discriminatory management policy.

13.2.10 In Cape Town City Council v Masitho & others (2000) 21 ILJ 1957 (LAC), with

reference to the decision in Irvin & Johnson, the Court held that an employer cannot be expected to continue repeating a wrong decision in obeisance to a principle of consistency and that an employer would be best advised to communicate with its employees in advance that the earlier application of discipline measures cannot be expected to be followed in future.

13.3 REINSTATMENT 13.3.1 In Nel v Oudtshoorn Municipality & another (2013) 34 ILJ 1737 (SCA) the meaning of

reinstatement was explained by reference to a the Constitutional Court‟s finding in Equity

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Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and arbitration that reinstatement meant:

„To put the employee back into the same job or position he occupied before the dismissal on the same terms and conditions. Reinstatement is the primary remedy in unfair dismissal disputes it is aimed at placing an employee in the position he would have been but for the unfair dismissal. It safeguards workers‟ employment by restoring the employment contract. Differently put if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal… and do not conclude an employment contract afresh…The employer merely restores the position to what it was before the dismissal.”

See: Myers v National Commissioner of South African Police Service [2014] 5 BLLR 461 (LC)

13.3.2 In Eskom Holdings Ltd v Fipaza & others (2013) 34 ILJ 549 (LAC) the Court confirmed that the primary statutory remedy for substantively unfair dismissal was reinstatement, With reference to Equity Aviation the Court held that this meant placing the employee in the position she would have been but for the dismissal.

At par 66 the Court held in determining the appropriate remedy there should be an enquiry that determines the issue of whether or not reinstatement should be ordered as its focal point. This should be done with the underlying notion of fairness between the employer and the employee, which ought to be assessed objectively on the facts of each case bearing in mind the core values of the LRA in security of employment. The commissioner should therefore determine whether or not the trust relationship has been destroyed beyond repair.

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14. DISMISSAL FOR POOR WORK PERFORMANCE 14.1.1 In Pernod Ricard SA (Pty) Ltd v CCMA & others (2011) 32 ILJ 119 (LC) it was held that

an employer is entitled to set measurable targets which the employee is required to meet. 14.1.2 In Gostelow v Datakor Holdings (Pty) Ltd t/a Corporate Copilith (1993) 14 ILJ 171 (IC)

the Court held the employer is obliged to make an assessment when the reason for dismissal is substandard performance due to lack of skill in the broader sense. The employer must attempt to establish the reason for the employee‟s shortcomings and remedies to assist the employee. During the appraisal the employer must discuss its criticism with the employee and warn him of the consequences if he did not improve. In this matter it was held that the reason for the sub-standard performance was an increase in workload and a decrease in staff component.

14.1.3 In Smuts v Adair [1999] 4 BLLR 392 (LC) it was held that it was within the employer‟s

prerogative to assess whether the standards set have been met and that only if the assessment is grossly unreasonable should a Court interfere.

14.1.4 In Boss Logistics v Phopi & Others (2010) 31 ILJ 1644 (LC) the Court held that the

period of time which is required in order to evaluate an employee‟s performance would depend on the circumstance of each case. The Court also held that the employer is in the best position to decide on the length of time and that commissioners should not second guess this time unless there is evidence that the employer acted in bad faith or in an unfair manner towards the employee.

14.1.5 In Eskom v Mokoena [1997] 8 BLLR 965 (LAC) the Court held that whilst a dismissal for

incapacity/poor work performance should be preceded by a fair hearing, it was not necessary to meticulously canvas each and every alleged poor work performance aspect in minute detail at an enquiry, and that it was sufficient that an employee should be given a fair opportunity to meet the general charge of incapacity/poor work performance. The Court further held that the employer can set standards and that only if found to be grossly unreasonable should the Court intervene.

14.2 POOR PERFORMANCE STANDARDS FOR SENIOR MANAGERS 14.2.1 In Somyo v Ross Poultry Breeders (PTY) Ltd [1997] 7 BLLR 862 (LAC) the Court held

that the normal rules regarding counseling, training and warning for poor work performance may be “dispensed with” in the case of senior employees. Because the level of professional knowledge, skill and experience normally associated with these employees are extremely high and because the slights departure from the high standard would normally be catastrophic for the organization.

14.2.2 However, in Palace Engineering (Pty) Ltd v Ngcobo and others [2014] 6 BLLR 557

(LAC) the court held that were a senior manager was on probation, the employer still has the duty to offer guidance and consult with the employee about any deficiencies in his performance, and to provide such employee with resources required to meet the standard.

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15. DISMISSAL FOR OPERATIONAL REQUIREMENTS 15.1 RETRENCHMENT – SECTION 189 & 189 A 15.1.1 In NEHAWU & Others v University of Pretoria [2006] 27 ILJ 117 (LAC), it was held by

the Court that the duty to consult is triggered when the employer is contemplating dismissing its employees.

15.1.2 At what stage must the parties consult?

Consultation at what stage The requirements for a fair consultation were dealt with in National Education Health & Allied Workers Union & others v University of Pretoria (2006) 27 ILJ 117 (LAC): “In the light of the above I conclude that there is nothing wrong with an employer coming to the consultation table with a predisposition towards a particular method of solving the problem which has given rise to the contemplation of dismissal of employees for operational requirements. What is critical is that the employer should nevertheless be open to change its mind if persuasive argument is presented to it that that method is wrong or is not the best or that there is or may be another one that can address the problem either equally well or even in a better way. He should engage in a joint problem-solving exercise with the other consulting party or parties.”

15.1.3 In National Union of Mineworkers v Anglo American Platinum LTD & Others [2012] 12

BLLR 1252 (LC) the employer was anticipating retrenching 14 000 employees. After interventions and meetings with Government and the Unions the number was reduced to 6000 and the employer started consulting in terms of section 189A. The Union challenged the procedural fairness on the basis that it alleged the employer had not complied with section 52 (1) of the Mineral Petroleum Resources and Development At 28 of 2002 and as such it did not participate when the question of selection criteria and severance pay was raised. The Court held that section 52 does not replace the requirements of section 189A and that if an employer raises selection criteria and severance pay and the union refuses to discuss it that does not render the dismissals unfair.

15.1.4 In General Food Industries (Pty) Ltd v FAWU & Others (2004) 25 ILJ 1260 (LAC), after

buying a milling company to supply its own grain demand, some functions were duplicated within the employer‟s structure. The employer indicated it wanted to retrench 1000 employees. FAWU refused to consult in respect of section 189A until its wages demands were dealt with at national level. After the wages were settled the employer gave notice of retrenchment and outsourced the operations at Salt River Mill. The union rejected the offers by the new contractor to employ members at a reduced rate. The Court held even if a strategy was adopted at national level to outsource at plant level, the retrenchment can still be fair, as long as the employer keeps an open mind when consulting. Retrenchment consultation does not have to take place at national level. The employer can retrench at plant level to increase profits at national level.

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15.1.5 In NUMSA & Others v SA Five Engineering & Others [2005] 1 BLLR 53 (LC): The Court

held that section 189A facilitation suspends the employer‟s right to dismiss employees for a period of 60 days. Once notice is given parties can choose between industrial action and adjudication.

15.1.6 In Enterprise Food (Pty) Ltd v Allen & Others [2004] 7 BLLR 659 (LAC) it transpired that

management only consulted after it had taken a final decision to close one of its plants. The Court held that even if there was a business rationale the employer had to consult before the final decision was taken.

15.1.7 In Porter Motor Group v Karachi (2002) 23 ILJ 348 (LAC): The Court held both parties

must attempt to reach consensus on alternative measures to retrenchment. In this regard there is also a duty on the employee to raise bumping as a possible alternative.

In this case, the employee was retrenched after declining a post offered as an alternative, despite the fact that she could have bumped another employee who was getting paid slightly less than what she was earning. The Court held that

1. The employer had a duty to consult on possible bumping. 2. Bumping uses the principle of LIFO as a departure point 3. Horizontal bumping should take place before vertical bumping; 4. Bumping must be implemented with the minimum possible disruption for the

employer; 5. Geographical limits may be placed on units in which bumping can be effected; 6. The mobility will depend also on the career-path of employees; 7. Bumping may have regard for the retention of skills; 8. Downward bumping can apply where the employee will accept the downgrading in

work and status.

15.1.8 In General Food Industries Ltd t/a Blue Ribbon Bakeries v FAWU & Others [2004] 9 BLLR 849 (LAC) the employer retrenched staff at its one bakery in a bid to be more competitive only weeks after employing staff at its other outlets. The court held the employer should have considered all alternatives including bumping, especially where transfers within the various bakeries were an ongoing thing.

15.1.9 In Country Fair Foods (Pty) Ltd v OCGAWU & Others [2003] 7 BLLR 647 (LAC) the

employer wanted to implement a different shift system which would negatively impact on employee‟s earnings. The union proposed alternative posts at lower levels, which the employer first agreed to, and a week later retracted from. The Court held that there was no reasonable explanation for the employer‟s decision to retract from the alternatives offered and as such there were alternatives available whereby the retrenchments could have been avoided. The Court ordered the reinstatement of the employees to the alternative positions.

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15.2 WHO TO CONSULT 15.2.1 In Zero Appliances (Pty) Ltd v CCMA & Others [2007] 7 BLLR 683 (LC) it was held that

the employer should ensure that the person it is consulting with has been properly mandated.

15.3 LEADING EVIDENCE REGARDING PROCEDURAL FAIRNESS IN CASES WHERE

SECTION 189A APPLIES 15.3.1 In Broll Property Group (Pty) Ltd v Du Pont & others (2006) 27 ILJ 269 (LAC): In the

matter the Labour Appeal Court held that if consultation is “woefully deficient” it may render dismissal substantively unfair.

15.3.2 In Watts v Fidelity Corporate Services (Pty) Ltd [2007] 6 BLLR 579 (LC): This judgment

highlights the plight of senior employees who may be retrenched. Since a single individual cannot embark on strike action, it is advisable to raise both the substantive and procedural issues during the hearing.

Section 189 (1) prescribes who should be consulted when an employer contemplates dismissing one or more of its employees for reasons based on its operational requirements. In Baloyi v M&P Manufacturing (Pty) Ltd [2001] 4 BLLR 389 (LAC) it was held that statutory hierarchy precludes individuals from consultation and there was no duty on the employer to consult with the affected workers separately on their personal circumstances. In the more recent case of Maluleke & others v Johnson Tiles (Pty) Ltd [2008] 11 BLLR 1065 (LC), the court held that it is only where there is no collective agreement in existence which regulates consultations in respect of a retrenchment that the employer is under an obligation to also consult with another registered union or individual employees. However, the collective agreement must require the employer to consult with a specific person or union in respect of all employees likely to be affected i.e. it must relieve the employer of the obligation of consulting the minority union. A collective agreement requiring of an employer to consult a majority union in respect of the possible retrenchment of its members only will not relieve the employer of consulting a minority union in respect of the possible retrenchment of some of its members. The collective agreement must be binding on employees who are not members of the union party to the agreement. In terms of section 23 (1) (d), such employees would only be bound by the collective agreement if-

o the employees are identified in the agreement; o the agreement expressly binds the employees; and o the trade union party to the agreement has as its members the majority of the employees

employed by the employer in the workplace.

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15.4 SINGLE RETRENCHMENTS 15.4.1 In Nape v INTCS Corporate Solutions (Pty) Ltd [2010] 8 BLLR 852 (LC) the employer

retrenched employees after the client insisted that the employee be removed. The Court held parties could not structure relationship to undermine the fundamental guarantees of the Labour Relations Act.

15.4.2 As a result of the LAC decision in Bracks N.O & another v Rand Water & another (2010)

31 ILJ 897 (LAC); [2010] 8 BLLR 795 795 (LAC) the CCMA has now expanded jurisdiction to arbitrate single individual retrenchments in terms of the amended section 191 (12). The three categories that an arbitrator can arbitrate a single retrenchment are the following:

a single individual retrenched as a result of one employee being consulted; a single individual retrenched as a result of more than one employee being

consulted; and more than one employee retrenched in the case of a small business employing

less than 10 employees, the employees may approach the CCMA for arbitration. 15.5 FAIR AND OBJECTIVE SELECTION CRITERIA 15.5.1 In Van Rooyen & Others v Blue Financial Services (SA) Pty Ltd [2010] 10 BLLR 1119

(LC): In a restructuring process, employees were informed that they would be assessed to determine eligibility for remaining in posts. After the process the employees that had not obtained positive scores were retrenched. The Court held the employer‟s criteria had to be justifiable and based on rational grounds. The process where employees have to apply for posts within a new structure has been accepted as a legitimate method of selecting. However, the employees should be engaged beforehand and given an opportunity to make representations on the results of the assessments.

15.5.2 In Screenex Wire Weaving Manufacturing (Pty) Ltd v Jafter Ngema & others JA 49/07

(LAC) handed down on the 2nd of September 2009, the court held that the retrenchment of a long serving employee on the basis of the FIFO selection criterion is substantively unfair.

15.5.3 In Foodgro (A division of Leisurenet) Ltd v Keil [1999] 9 BLLR 875 (LAC) the employee

was retrenched despite having made proposals for taking on more work. She felt aggrieved, as her department was profitable. The Court ultimately held that it was acceptable for an employer to retrench from a unit even if that specific unit was profitable if the overall operations justified retrenching.

15.5.4 In Super Group Supply Chain Partners v Dlamini & another [2013] 3 BLLR 255 (LAC)

the employer lost 80% of its business and decided, as most staff joined on the same day, not to use LIFO but rather to have staff apply for the remaining posts. The Court held there was a valid reason for the retrenchment but the employer had to consult on selection criteria and employees who are not successful should be provided with objective reasons for not being successful.

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15.5.5 In CWIU v Lennon Ltd [1994] 10 BLLR 1 (LAC) the employer took a decision to restructure and the union made proposals in respect of possible alternatives. The employer rejected both proposals. The Court held the test is whether the employer bona fide considered the proposals and not whether the employer was right or wrong in rejecting the proposals by the union.

15.6 NOTICE OF RETRENCHMENT 15.6.1 In NUMSA v General Motors of South Africa (Pty) Ltd [2007] BLLR 914 (LC) 10 months

lapsed between the dates the employer issued the notice of possible retrenchment until the final notice was given. During this time several material changes occurred in the employer‟s business. The Court held that the employer should have issued new notices as section 189(3) opens a 60 day consultation period as such after 10 months the employer had to explain why there was still a need to retrench.

15.7 SUBSTANTIVE FAIRNESS 15.7.1 In CWIU & Others v Latex Surgical Products (Pty) Ltd [2006] 2 BLLR 142 (LAC): When

the employer wanted to consult in terms of Section 189A, the union‟s members went out on a protected wage strike. The employer then attempted to sell its operations and the purchaser required all the employees to be evaluated. Despite objections by the union, some employees were tested and as a result of the test, were offered posts. The other employees were given notice of retrenchment. The new employer shortly thereafter appointed contract workers. The Court held that the fact that contract workers were appointed is a clear indication that there was no substantive need to retrench.

15.7.2 In BMD Knitting Mills (Pty) Ltd v SACTWU [2001] 7 BLLR 705 (LAC) the Labour Appeal

Court held that the Court can determine whether there was a reasonable basis to retrench. 15.7.3 In Van Rensburg v Austen Safe Company [1998] 1 BLLR 86 (LC): After deciding to

move into new markets and to restructure the business, the Sales and Marketing Director was informed that his post had become redundant. The Court held the test for substantive fairness does not mean that the employer has to show that it was in a position of financial ruins before it could restructure and retrench. If there was a business rationale for the decision it could be justified.

15.7.4 In FAWU obo Kapesi & Others v Premier Foods Ltd t/a Blue Ribbon Salt Rivier [2010]

9 BLLR 903 (LC) the employer used the provisions of section 189A to retrench employees after a 2 month violent strike where there was not sufficient evidence to prove the employees‟ guilt. The court held that retrenchment should not be resorted to just because an employer could not establish guilt. Section 189A should be resorted to only if there is genuine reason to retrench.

15.7.5 In NUMSA & Others v Dorbyl Ltd & Another [2004] 9 BLLR 914 (LC) the employees

went on a protected strike despite calls by the employer that the business could not afford

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the strike. In the end the employer retrenched them. The Court held that an employer can retrench during a strike but it must be for operational requirements.

15.7.6 In SACWU v Afrox Ltd [1999] 10 BLLR 1005 (LAC): The employer wanted to introduce a

new shift system but all attempts failed and the employees went on strike. The employer gave notice of possible retrenchment and later retrenched them. The Court held this did not constitute an automatically unfair dismissal as long as the dismissal relates to operational requirements. The test for fairness in this regard it held was objective and not merely a question of good faith by the employer.

15.8 REMEDIES FOR UNFAIR RETRENCHMENT 15.8.1 In Mamabolo & Others v Manchu Consulting CC [1996] 6 BLLR 562 (LC): After having

expanded its business the employer was forced to retrench its employees for operational reasons. It did not follow any procedure and later offered to re-employ the employees on same terms and conditions, as before. When the employees refused, the employer offered to pay them each two months salaries and severance pay, which they again refused. The Court held that the dismissal was substantively fair as there was a rationale for the decision and although the dismissal was procedurally flawed the fact that the employees frustrated all the employer‟s attempts to redress the wrongs meant that they were not entitled to any compensation.

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16. SEVERANCE PAY 16.1 SEVERANCE PAY MORE THAN STATUTORY MINIMUM

16.1.1 In Telkom (Pty) Ltd v CCMA & others [2004] 8 BLLR 844 (LC) the court held that where

parties had agreed between them the rate, formula and method of calculating severance pay then the Court may enforce the agreement even if the amount agreed was more than the statutory minimum.

16.2 RETRENCHMENT AT ALLEGED NORMAL RETIREMENT AGE 16.2.1 In Kirsten v Southern Cross Manufacturing Co Ltd t/a Southern Cross Industries

(2006) 27 ILJ 2471 (CCMA) the employee claimed that she was entitled to severance pay but the employer argued that she had reached the normal retirement age and as such was not entitled to severance pay.

The Court held that where there is no agreed retirement age and employment is terminated during a retrenchment exercise on the basis that the employees concerned reached the alleged normal retirement age, such employees would be entitled to severance pay if the employer cannot prove what the normal retirement age is.

16.3 SEVERANCE PAY ENTITLEMENT 16.3.1 In Irvin & Johnson Ltd v CCMA & others [2006] 7 BLLR 613 (LAC) the canteen facilities

were outsourced by the old employer. The new bidder was required to employ the existing staff and subsequently did on 12-month fixed term contracts at their existing rates of pay. All the employees accepted the new contracts but wanted the old employer to pay them severance pay. The Labour Appeal Court held when sufficient alternatives are offered, an employee is not entitled to severance pay as the purpose of severance pay is to tide a person over until he has found alternative employment. It held that section 41 of the BCEA created 3 scenarios in relation to severance pay: 1. where the employee unreasonably refuses the alternative offered, in which case

the employee will forfeit the right to severance pay; 2. the employee refuses the alternative offered, with good reason, in which case the

employee will be entitled to be paid severance pay; and 3. the employee accepts the alternative offered in which case the employee will

forfeit the right to severance pay.

16.3.2 In Kruse v Gijima AST (Pty) Ltd [2010] 7 BLLR 722 (LC) despite the fact that the employee was working for periods of his employment for the employer in Namibia, the Labour Court held that in terms of section 77 (3) of the BCEA it would have jurisdiction to consider any matter concerning contracts of employment and in this instance found that the applicant was still entitled to be paid his severance pay.

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16.3.3 In Fidelity Supercare Cleaning (Pty) Ltd v Busakwe N.O & others [2010] 3 BLLR 260 (LC) the employer‟s client did not renew its contract which resulted in the termination of the employee‟s employment contract. The employee claimed severance pay for 17 years‟ service and the employer refused as the employee had obtained alternative employment with another contractor. The Court held the employee was entitled to severance pay as the employer merely facilitated the employee‟s appointment by providing her with a reference. The employer did not arrange the alternative post and could therefore not argue that the employee was offered adequate alternative employment.

16.3.4 In Burman Katz Attorney v Brand NO & Others [2001] 2 BLLR 125 (LC) the employee

worked for a firm of attorneys since 1972. The firm changed names over the years as several partners joined and left the firm. When she was retrenched she wanted to be paid for the full period of her employ. The Court held that normally when a business transfers, the contracts of employment transfer with it without a break in service. The only exception to this rule is in the event of a partnership. When a partnership dissolves, the partners at the time are liable singuli in solidum for the partnership debt and as such the applicant was not entitled to claim severance pay for the full service period from the last partnership she worked at.

16.3.5 In Kitchin v Tiger Oats Ltd [1996] 9 BLLR 1084 (LAC) after working two years past the

normal retirement age the employee was declared redundant. The employer refused to pay severance pay as it claimed that it had the right to require the employee to retire in terms of the Provident Fund Rules. The Court held that the employer had such a right and thereby found that the employee was not unfairly treated.

16.3.6 In Freshmark (Pty) Ltd v CCMA & Others [2003] 6 BLLR 521 (LAC) the facts were that,

based on the employer‟s new operational requirements the employer wanted the employee to work every alternative Saturday. When she refused she was dismissed due to operational requirements. The Court held that her refusal was unreasonable and as such she was not entitled to severance pay.

16.3.7 In Astrapak Manufacturing Holdings (Pty) Ltd t/a East Rand Plastics v CEPPWAWU

[2013] 12 BLLR 1194 (LAC) when the employees refused a new shift pattern, they were retrenched without being paid severance pay. The Court held that their refusal was unreasonable and as such they were not entitled to severance pay.

16.3.8 In Sayles v Tartan Steel CC [2000] 2 BLLR 161 (LAC) the employee accepted the

alternative offered but later changed his mind and abandoned his work. The court held the employee was not entitled to severance pay.

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16.4 SEVERANCE PAY AND S197 TRANSFER 16.4.1 Pama & Others v CCMA & Others [2001] 9 BLLR 1079 (LC): After the employer‟s

business was transferred as a going concern the employees wanted to be paid severance pay. The Court held they were not entitled to severance pay as the new owner offered adequate alternative employment. The court held that severance pay will only be payable as a result of:

1. reward for past loyalty to the employer; 2. compensation for unemployment ; 3. incentive for continued employment; and 4. combination of the factors in 1 to 3 above

16.4.2 In MISA / SAMWU obo Members v Madikor Drie (Pty) Ltd [2006] 1 BLLR 12 (LC) after a

transfer of a business as a going concern the employer wanted to restructure and offered to pay 1 week for every completed year of service. The union contended that its members were entitled to be paid severance pay in accordance with the old employer‟s policy pertaining to severance pay. The Court held even though the old employer‟s policy did not form part of the employees‟ employment contracts the new employer should have consulted with them in this regard as the new employer took over the responsibilities of the old employer. The Court held it was therefore unreasonable of the new employer to just say no and not to consult in respect of the old policy as expectations were created.

16.4.3 In AST Holdings (Pty) Ltd v Roos [2007] 10 BLLR 291 (LAC) the employee and the

employer entered into an agreement whereby the employee had agreed to forfeit years of service in exchange for better conditions. The Court held that when a transfer occurred in terms of section 197 the employer may not agree with the employee that he will forfeit his years of service with the previous employer, as this will be unlawful.

16.5 CALCULATION OF SEVERANCE PAY 16.5.1 In Telkom (Pty) Ltd v CCMA & Others [2004] 8 BLLR 844 (LC) the employee who was

retrenched wanted the severance pay to be calculated on a formula that was greater than what is stipulated in the BCEA. The Court held that it, and the CCMA, has the power to enforce formulas agreed to in agreements.

16.5.2 In SATU obo Van As & others v Kohler Flexible Packaging (Cape) a division of Kohler

Packaging Ltd [2002] 7 BLLR 605 (LAC) after the employer paid the employees each 2 weeks‟ severance pay for each year of completed service the employees complained that the shift allowance was not included in the employer‟s calculations. The Court held that the formula in section 41 of the BCEA is only applicable for payment of statutory minimums. If the employer is paying more than the statutory minimum parties can negotiate on the formula that should be used for calculating severance pay.

16.6 VOLUNTARY SEVERANCE PACKAGE

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16.6.1 In University of the North v Franks & others [2002] 8 BLLR 701 (LAC) some 100 employees accepted the Voluntary Severance Packages offered by the employer for those over 55, the employer decided to withdraw the offer. The Court held that as the respondent‟s highest administrative officer made the offer and as it was stated expressly or tacitly that the offer was irrevocable for a period of time the employer could not unilaterally revoke it and as such the employer was bound by the offer it had made.

16.6.2 In MAADA v MEC of the Northern Provinces for Finance & Expenditure & others

[2003] 5 BLLR (LAC) the applicant applied for a voluntary severance package after learning its value was R 1, 3 million rand. He was later informed the calculations were incorrectly done and that the value of the package was in the region of R 483 000.00. He wanted to withdraw his application for the voluntary severance package but the employer refused. The Court held the voluntary severance package was an open offer and, by applying, the applicant was not giving notice of termination but was in fact requesting the Department to agree to the termination on specific terms. It was held that the Department could have accepted or have rejected the application as his request was not binding on the Department. He could therefore withdraw his offer at any time before the Department accepted it.

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17. FIXED TERM CONTRACTS 17.1 PREMATURE TERMINATION

17.1.1 In Buthelezi v Municipal Demarcation Board (2004) 25 ILJ 2317 (LAC) the Court held

that when parties enter into a fixed term contract they bound themselves for a specific period and no party can escape its obligation under the terms of the contract unless there is a material breach. If an employer has taken the risk by offering a fixed term contract rather than a contract for an indefinite period he cannot later complain.

The Court held further that when compensation is calculated consideration should be given

to the loss of income the employee will suffer as a result of the early termination. 17.1.2 In Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA); (2001) 22 ILJ 2407 (SCA)

the Court held that an early termination would amount to an unfair dismissal. 17.1.3 In Public Servant Association obo Mbiza v Office of the Presidency and others [2014]

3 BLLR 275 (LC) the Court held that the early termination of the employee‟s fixed term contract was unfair and awarded the employee compensation for the substantive and procedural unfair dismissal.

In terms of section 198B of the LRAA of 2014 fixed term contract employees are entitled to be treated no less favourable to the indefinite employees after a period of three months.

17.2 REASONABLE EXPECTATION AND CLAIM FOR PERMANENT EMPLOYMENT 17.2.1 In University of Pretoria v Commission for Conciliation , Mediation & Arbitration &

others [2012] 2 BLLR 164 (LAC) the court held that section 186(1)(b) of the LRA did not provide for employees on fixed-term contracts claiming that they had a reasonable expectation of permanent employment.

In terms of section 186 of the LRAA of 2014 all fixed term contract employees are entitled to claim a legitimate expectation to be employed indefinitely.

17.3 REASONABLE EXPECTATION OF RENEWAL 17.3.1 In University of Cape Town v Thomas auf der Heyde [2001] 12 BLLR 1316 (LAC) the

Court held that the test for reasonable expectation was twofold. The first dealt with whether the employee actually expected the contract to be renewed and the second, whether the expectation was reasonable.

17.3.2 In SA Rugby Player Association v SA Rugby (Pty) Ltd (2008) 29 ILJ 2218 (LAC) the

Court found that the employees could not rely on a statement by a coach that the players

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would have a further contract when he was shortly thereafter removed and replaced by a different coach. It held that any expectation created should have been diminished when Streuli‟s contract was terminated.

17.3.3 In MEC for the Department of Finance, Eastern Cape v De Milander & others [2011] 9

BLLR 893 (LC) the Court again confirmed that the test was twofold. (The Court did not refer to the matter of Heyde but a similar test was applied)

17.3.4 In Joseph v University of Limpopo & others [2011] 12 BLLR 1166 (LAC) the Court held

that an employee, a foreign academic whose contract was not extended because his work permit had expired, had in fact a reasonable expectation for renewal on the basis that his employer would have been able to obtain the work permit in due course. The Court held that the employee was able to prove the dismissal and held that it was unfair.

17.4 REMEDIES FOR DISMISSAL DISPUTES RELATED TO FIXED TERM CONTRACTS 17.4.1 In Public Servant Association obo Mbiza v Office of the Presidency and others [2014]

3 BLLR 275 (LC) the Court with reference to section 195 of the LRA held that an employee whose fixed term contract was terminated unfairly was entitled to compensation and not merely to an amount equal to the equivalent of the remainder of the employment contract.

In terms of section 198B of the LRAA of 2014 employees employed on fixed term contracts for longer than 3 months are entitled to the same remedies for unfair dismissals as those applicable to indefinite employees.

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18. SECTION 197 TRANSFERS 18.1 GENERAL APPLICATION OF SECTION 197 18.1.1 In NEHAWU v University of Cape Town and Others [2003] 2 BLLR 154 (CC) it was held

that the section 197 served a dual purpose. On the one hand it facilitates the commercial transaction whilst at the same time it protects workers against unfair job losses. The fact that parties had not specifically agreed that employees would transfer to the new employer did not prevent the Court from making a finding in this regard. The Court held that this approach was in line with the provisions of section 23 of the Constitution.

The test is objective and requires a holistic approach:

“What is transferred must be a business in operation „ so that the business remains the same but in different hands “ Whether this has occurred is a matter of fact, which must be determined objectively in the light of the circumstances of each transaction. The emphasis must be on the substance of the transaction and not on the form of the transaction. The following questions, which was not intended to be a close list was considered by the Court:

The transfer or otherwise of assets both tangible and intangible; Whether or not workers are taken over by the new employer, Whether customers are transferred; and Whether or not the same business is being carried on by the new employer.

18.1.2 In Aviation Union of SA & another v SA Airways (Pty) Ltd & others (2011) 32 ILJ 2861

(CC) the Court held that section 197 changed the common law position by providing a legal consequence which would flow from the transfer of business as a going concern. One of these consequences was the transfer of the workforce engaged in the transferred business. The Court confirmed that the test was objective, which required a factual determination based on the facts of each case.

The Court considered the effect of termination of service contract:

The Court found that the termination of 1 service contract and subsequent award of the contract to a third party does not in itself constitute a transfer envisaged in this section. In these circumstances the service provider loses the contract but retains its business. The service provider would be free to offer the same services to another client with its workforce still intact.

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18.2 WHEN IS A BUSINESS TRANSFERRED AS A GOING CONCERN? 18.2.1 In Transport and Allied Workers Union of SA v Transnet and Others (J175/2011)

ZALCJHB (Delivered on 20 June 2013) it was confirmed that for a transfer to be established there must be components of the original business which are passed on to the third party. These may be in the form of assets or the taking over of workers who are assigned to provide the service.

18.2.2 In Pointies Panel Beaters Partnership v NUMSA & others [2009] 2 BLLR 99 (LAC) the

Court held that the factors must be considered holistically to determine if the sale of a business constituted a transfer as a going concern. It held that the history of a business could be taken into account and where an employer was continuing with a business with the same employees, on the same premises and with the same equipment is was indicative of the fact that there was in fact a transfer in terms of section 197 of the LRA.

18.2.3 In Schutte & Others v Powerplus Performance (Pty) Ltd & Another (1999) 20 ILJ 665

(LC) the Court held that transfer will include a sale, transfer, merger, takeover, donation or exchange of assets.

18.3 SECOND GENERATION TRANSFERS

PRIMARY OUTSOURCING

When an entity chooses to outsource any part of its business activities. SECONDARY OUTSOURCING When the first outsourcing contract comes to an end and the original employer appoints another entity or service provider to provide the outsourced services.

18.3.1 In SAMWU and Others v Rand Airport Management Company (Pty) Ltd & Others

(2005) 26 ILJ 67 (LAC) the Court held that “services” could be outsourced even if it was a non-core function of the entity and that in these circumstance section 197 would apply.

18.3.2 In COSAWU obo Members v Zikhethele Trading (Pty) Ltd (2005) 26 ILJ 1056 (LC) which

finding was confirmed by the Labour Appeal Court under Zikhethele Trading (Pty) Ltd v COSAWU obo Members & Others [2008] 2 BLLR 163 (LAC) it was held that section 197 will apply to second generation transfers.

18.3.3 In Aviation Union of SA & another v SA Airways (Pty) Ltd & others (2011) 32 ILJ 2861

(CC) the court highlighted the distinction between outsourcing a service or transferring a

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right to provide a service, on the one hand, and the transfer of a business or part of a business that provides a service.

18.4 AUTOMATICALLY UNFAIR DISMISSALS RELATED TO SECTION 197 18.4.1 In Douglas & others v Gauteng MEC for Health [2008] 5 BLLR 401 (LC) the court held a

section 197 transfer had occurred and as such the employees were automatically transferred by operation of law to the Gauteng Department of Health. It held further that unless there was an agreement reached between the old employer, the new employer and the affected employees to vary terms and conditions of employment, that the transferred employees were to transfer on terms and conditions that was on the whole not less favourable to those they previously enjoyed. If an employee is offered a contract which is substantially less favourable and he is dismissed thereafter it would constitute an automatically unfair dismissal which would entitle the employee to maximum compensation (24 months).

18.4.2 In Business & Design Software (Pty) Ltd & Another v Van der Velde [2009] 8 BLLR

746 (LAC) the Court held that if the dismissal relates to the transfer of the business in terms of section 197 then the dismissal would be automatically unfair in terms of section 187(1)(g) of the LRA. The Court further held that it would be important to determine when the actual transfer took place and the Court would not be bound by the date agreed between the parties if this date was in fact an earlier or later date.

18.5 LIABILITY OF THE OLD AND THE NEW EMPLOYER 18.5.1 In Anglo Office Supplies (Pty) Ltd v Lotz (2008) 29 ILJ 953 (LAC) it was held that the

new employer will be liable even if the old employer dismissed, where the dismissal occurs in relation to section 197(2)(c) of the LRA.

(See also Business & Design Software (Pty) Ltd & Another v Van der Velde [2009] 8 BLLR

746 (LAC)) 18.6 CONSULTATION AND S197 TRANSFER 18.6.1 In Irvin & Johnson Ltd v CCMA & Others [2002] 12 BLLR 194 (LC). The employer

dismissed employees pursuant to a transfer of business. The Court held that this did not relieve the employer from his duty to consult and where employees have accepted unreasonable offers of alternative employment they would not be deprived of severance pay.

18.6.2 In Jenkin v Khumbula Media Connexions (Pty) Ltd [2010] 12 BLLR 1295 (LC) the

employee was sent home after a section 197 transfer took place. The employer thereafter took a decision to stop all his benefits. The Court held that consultation entails more than just a mechanical approach and therefore found that the applicant‟s dismissal after only 1 meeting was procedurally unfair.

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18.6.3 In Kruger v Jigsaw Holdings Ltd & Others [2006] 7 BLLR 670 (LC) after piercing the corporate veil to determine the identity of the true employer the Court held that a CEO still has the right to be consulted on severance pay even if he was fully aware of the rationale for the decision to retrench.

18.6.4 In Forecourt Express (Pty) Ltd v SATAWU & Others [2007] 2 BLLR 101 (LAC) the court

held it was not for it to find that the employer should run its business in a different manner after a take-over had taken place. Even if the employer holds strong views, the union is within its rights to make proposals and it would not automatically mean that retrenchment was a fait accompli.

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19. PROMOTION 19.1 MEANING

“Promote” is defined in the New Shorter Oxford Dictionary as “advance” or “raise to a

higher rank or position.”

Similar meanings were ascribed to promotion in Mashegoane & Another v University of the North [1998] 1 BLLR 73 (LC) at 76 and Jele v Premier of the Province of KwaZulu-Natal & others (2003) ILJ 1392 (LC) at 1398.

19.1.1 In deciding whether a dispute involves a promotion one has to compare the employee‟s

current job with the job or post applied for to determine whether promotion is involved. Some of the factors that should be taken into account are- differences in remuneration levels differences in fringe benefits differences in status differences in levels of responsibilities differences in levels of authority and power differences in the level of job security

19.2 RELEVANT CONSIDERATIONS IN DECIDING FAIRNESS

19.2.1 In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others

(2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held, with reference to the Aries case (below), that the overall test is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following: whether the failure or refusal to promote was caused by unacceptable, irrelevant or

invidious consideration on the part of the employer; or whether the employer‟s decision was arbitrary, or capricious, or unfair; or whether the employer failed to apply its mind to the promotion of the employee; or whether the employer‟s decision not to promote was motivated by bad faith; whether the employer‟s decision not to promote was discriminatory;

whether there were insubstantial reasons for the employer‟s decision not to promote;

whether the employer‟s decision not to promote was based upon a wrong principle;

whether the employer‟s decision not to promote was taken in a biased manner.

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In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held that there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner

19.2.2 In De Nysschen v General Public Service Sectoral Bargaining Council & others (2007)

28 ILJ 375 (LC) the Court held that although the incumbent does not enjoy a right to automatic promotion in an upgraded post, the discretion not to promote should be exercised in a way which does not constitute an unfair labour practice and does not fall foul of the balanced approach called for by the Constitutional Court. The Constitution provides for a balanced approach. On the one hand, fair labour practices and affirmative action must be observed. On the other hand, effectiveness, efficiency, high ethical standards and progressive human resource policies are crucial and the question at hand had to be interpreted in that context. To determine whether the discretion is fairly exercised will always depend on the facts of the matter.

19.2.3 In Noonan v Safety and Security Sectorial Bargaining Council and Others [2012] 33 ILJ 2597 (LAC) There is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity of competing for a post then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.

On appeal the Court held that, where the successful candidate did not disclose that he had a disciplinary infraction, this may lead to unfairness. This approach overlooks several aspects. The first is that there was no disclosure by the third party at all. The second is that the national commissioner condoned the failure after the appointment was made. The third is that it downplays the value of process and lends support to possible dishonest practices. Fourthly it devalues the role of the first selection panel. And importantly it prejudiced the appellant as he would possibly have been ranked first on the list of recommendations.

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The Court held that where an applicant incapacitates the first selection panel from performing its task he or she defeats the purpose of having a first selection panel and illegitimately advantages himself or herself. And, of course, disadvantages the other candidates. Furthermore, the non-disclosure enables the non-disclosing candidate to rise through the process to a stage where the national commissioner is able to condone the lapse. This is manifestly unfair. Every applicant is obliged to apply his or her mind carefully to the application form and to complete it honestly and diligently so as to compete fairly with other candidates.

19.3 WHEN SHOULD OTHER CANDIDATES BE JOINED

19.3.1 In National Commissioner of the SAPS v Safety & Security Sectoral Bargaining Council & others [2005] 8 BLLR 808 (LC) the Court held that the successful candidate be joined (together with the employer) as party to the proceedings if the relief sought will affect the successful candidate.

19.3.2 In Gordon v Department of Health: KwaZulu-Natal [2008] (29) ILJ 2535 (SCA) the Court held that a third party that is to be joined must have direct and substantial interest in subject-matter of litigation. The test is whether the third party may be affected prejudicially by the judgment or order of court. The successful appointee in unfair discrimination dispute will not have interest in matter if the Court order is directed at the employer to compensate unsuccessful applicant. The appointee would only have a legal interest in the proceedings where the decision to appoint him is sought to be set aside.

19.4 POLYGRAPH RESULTS AS SELECTION CRITERION

19.4.1 In Sedibeng Local Municipality v SALGBC & others (JR1559/09) [2012] ZALCJHB 45; [2012] 9 BLLR 923 (LC); 2013 (1) SA 395 (LC); (2013) 64 ILJ 166 (LC) (31 May 2012) the court held that the exclusion of candidates for promotion purely on the basis of polygraph tests was unfair.

19.5 UPGRADING

19.5.1 In Minister of Labour v Mathibeli & others (2013) 34 ILJ 1548 (LC) the public service

post occupied by the first respondent employee was regarded, but he was not given the salary increase of the regraded post. The Court found that it was clear that the retention, with increased benefits, of an incumbent in a newly upgraded post has as its consequence the same substantive outcome as a promotion, ie where the incumbent employee is permitted to continue to occupy the regarded post and is afforded the appropriate higher salary the employee is promoted. However, the retention, without increased benefits, of an incumbent in a newly upgraded post does not have, as a consequence, the same substantive outcome as a promotion. Where, therefore, the incumbent employee is permitted to continue to occupy the regraded post and is not afforded the appropriate higher salary, the employee is not promoted.

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When a post is upgraded and an employee is appointed to act in the post, a dispute about not paying the employee the salary applicable to the upgraded post, is not a promotion issue as the “regrading of the post may bring with it new essential requirements for the population of that post, which the current incumbent may not possess of.”

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20. DEMOTION 20.1 MEANING

“…in law, demotion could also mean a reduction or diminution of dignity, importance, responsibility, power or status even if salary, attendant benefits and rank are retained.”

20.1.1 Section 186(2) (a), by implication, permits an employer to demote an employee, provided

that this is done fairly. Employees who complain of unfair demotion must prove that they have actually been demoted. A demotion does not occur merely because the employee is placed in a post involving slightly different work, especially when that work falls within the scope of the employee's duties. The mere fact that an employee's title is changed is not necessarily proof of a demotion; something more is required. The change in the employee‟s position in the organisation must also entail a loss of benefits or a lowering of the employee‟s status. The employee‟s prestige, status and even work-duties may also be less.

20.1.2 In Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services & others (2008) 29 ILJ 2708 (LAC) the Court considered whether the decision to transfer the employee temporarily to Pollsmoor constituted a demotion. It was held that the status, prestige and responsibilities of the position were relevant to the determination of whether or not a transfer constituted a demotion. In the light of the detailed and uncontested evidence of the employee in regard to the status, prestige and responsibilities of his position in Cape Town, the court had no hesitation in concluding that that position was of a higher status and prestige and held greater responsibilities than the position he was to occupy at Pollsmoor. The employee's transfer to Pollsmoor therefore constituted a demotion. Since the employee did not consent to the demotion, it was unlawful in terms of the common law and unfair in terms of the LRA.

20.1.3 In SA Police Services v Salukazana & others (2010) 31 ILJ 2465 (LC) the employee was

notified by a letter headed 'lateral transfer' that he had been permanently transferred to a new position. The effect of the transfer was that although he remained on level 13 and his salary and benefits were not changed, his status had been diminished. In the past he reported to the area commissioner, in his new position he was expected to report to a person below the area commissioner.

The court found that demotion can manifest itself in many ways. It can arise through a reduction of salary, a change to terms and conditions of employment and a transfer. In fact, a demotion and a transfer have common attributes - there is a movement in both a demotion and a transfer. If the movement leads to a reduction in status, it is a demotion. Thus if a transfer leads to a change in terms and conditions of employment which amounts to demotion, an employee is entitled to bring a claim relating to an unfair labour practice

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20.1.4 In Van Der Riet v Leisurenet Ltd t/a Health and Racquet Club [1998] 5 BLLR 471 (LAC) the Employee resigned after being effectively demoted as a result of restructuring exercise where his reporting line was altered. The Court held that the restructuring resulted in the effective demotion of the appellant, and that he had been entitled to reject it after it had been unilaterally imposed, since it had been coupled with a charge of shortcomings in his performance to which he had not been given the opportunity of refuting.

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21. TRAINING 21.1.1 In MITUSA & other v Transnet Ltd & others [2002] BLLR 1023 (LAC) tug masters were

required to have by law, a specific qualification. When a shortage of qualified tug master were identified the employer obtained permission to appoint employees who did not meet the criteria. Shortly after obtaining permission Marine Circular 10 was published in which the employer‟s plans for training programs were set out. After employees were appointed the employer wanted them to do a different course that was developed but they claimed that they were subjected to an unfair labour practice in relation to training as they were entitled to the training initially published, at the employer‟s cost.

At arbitration the commissioner was required to determine if it was a rights dispute or a

matter of mutual interest. The Court held that a reasonable expectation claimed by the employees could not be

“transformed” into a term and condition of service as it did not create a right, and as such there was no right to the specific training, as the training benefit was not included in the employment contract but in Circular 10 which did not state anything about the condition on which the training would have been provided, the nature of such training or when it would have been offered.

21.1.2 In Eskom v Marshall & Others [2003] 1 BLLR 12 (LC) at par 22 the Court held that when

an employer frustrates an employee‟s legitimate expectation of receiving training in terms of an established training program presented by the employer or on behalf of the employer it may constitute an unfair labour practice.

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22. BENEFITS 22.1 In Apollo Tyres South Africa (Pty) Ltd v CCMA & Others (2013) 34 ILJ 1120 (LAC) an

early retirement scheme was set up for employees. Membership to the scheme was dependent on age and on management‟s discretion. An employee who fell within the age group and who had 24 years‟ service was refused entry. Where after she claimed that she was subjected to an unfair labour practice relating to benefits.

The Court held the definition of benefit, as contemplated in section 186(2)(a) of the LRA

was not confined to rights arising ex contractu or ex lege, but included rights judicially created as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer‟s discretion and that in this instance the early retirement scheme constituted a benefit.

22.2 In Protekon (Pty) Ltd v CCMA & others [2005] 7 BLLR 703 (LC) a travel concession

scheme was turned into a salary increase based on average annual cost formula. The applicant felt unfairly treated because he did not benefit from the formula and he was not properly consulted. The Court held an employee need not establish a contractual right before a fining may be made that an unfair labour practice in relation to benefits had occurred.

Disputes over the provision of benefits may fall into two clearly identifiable categories: the first is where the issue in dispute concerns a demand by employees that

certain benefits be granted (or reinstated) irrespective whether the employer‟s conduct in not agreeing to grant the benefit (or in removing it) is considered to be unfair;

the second is where the issue in dispute is the fairness of the employer‟s conduct. No party has a right to refer disputes in the first category to arbitration, and there is consequently no barrier to industrial action at the point of impasse. The converse is true of disputes in the second category.

22.3 In South African Post Office Ltd v Commission for Conciliation, Mediation and

Arbitration and others [2012] 11 BLLR 1183 (LC) the court confirmed the approach later adopted in the Apollo Tyres judgment (above).

22.4 In IMATU obo Vorster v Umhlatuze Municipality [2011] 9 BLLR 882 (LC) it was held that

acting allowances may in certain circumstances be dealt with as unfair labour practices if the employee is not attempting to create a new right.

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23. UNFAIR SUSPENSION 23.1 PENDING A DISCIPLINARY ENQUIRY 23.1.1 In Koka v Director-General: Provincial Administration North West Government (1997)

7 BLLR 874 (LC) the Court distinguished between two kinds of suspension. The first being a “holding operation”, where the purpose of suspension is not to impose discipline but is imposed for reasons of good administration. The second being suspension as a form of a disciplinary penalty. The court concluded that the definition of “unfair labour practice” was sufficiently broad to cover both forms of suspension.

23.1.2 In SAPU & another v National Commissioner of the South African Police Service & another (2006) 1 BLLR 42 (LC) the Labour Court held that suspensions are employment or labour relations matters, and not administrative acts. This view is supported by the Constitutional Court in Chirwa v Transnet and Others (2008) 2 BLLR 97 (CC).

23.1.3 In Sappi Forests (Pty) Ltd v CCMA & others [2009] 3 BLLR 254 (LC) the court held that

it is normally unlawful and unfair to suspend an employee without pay pending a disciplinary enquiry. A collective agreement or legislation may authorize unpaid suspension in which event it would not be unlawful or unfair. An employee may also agree to a suspension without pay.

See also Ndlovu v Transnet Ltd t/a Portnet [1997] 7 BLLR 887 (LC), Ngwenya v Premier of Kwazulu-Natal [2001] 8 BLLR 924 (LC); Minister of Labour v GPSSBC & others [2007] 5 BLLR 467(LC)

23.1.4 In MEC for Education: North West Provincial Government v Errol Randal Gradwell (2012) 8 BLLR 747 (LAC) the Labour Appeal Court held that an opportunity to make written representations to show why a precautionary suspension should not be implemented is sufficient compliance with the requirement of procedural fairness.

23.1.5 The Labour Appeal Court in the Gradwell matter (above) held that the justifiability of a

suspension rests on the existence of a prima facie reason to believe that the employee committed serious misconduct.

23.1.6 In POPCRU obo Masemola & others v Minister of Correctional Services (2010) 31 ILJ

412 (LC) the court held, relying on Mogothle v Premier of the Northwest Province & another (2009) ILJ 605 (LC) that -

Fairness requires the following before suspending an employee pending an investigation or disciplinary action:

first that the employer has a justifiable reason to believe, prima facie at least, that the employee has engaged in serious misconduct;

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secondly, that there is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interests of the affected parties in jeopardy; and

thirdly, that the employee is given the opportunity to state a case before the employer

makes a final decision to suspend the employee.

See also Lebu v Maquassi Hills Local Municipality (2012) 4 BLLR 411 (LC

23.1.7 It was held in SAPO Ltd v Jansen Van Vuuren NO & others (2008) 8 BLLR 798 (LC), that a suspension, even whilst investigations are underway, amount to an unfair labour practice, if the period of suspension exceeds the period stipulated in a disciplinary code, collective agreement, regulations, or contract of employment (See also Minister of Labour v General Public Service Sectoral Bargaining Council and others (2007) 5 BLLR 461 (LC)).

23.1.8 In County Fair v CCMA & Others [1998] 6 BLLR 577 (LC) it was held that suspension without pay is a permissible disciplinary penalty where appropriate, and for a reasonable period (see also South African Breweries Ltd (Beer Division) v Woolfrey & Others (1999) 5 BLLR 525 (LC)).

23.1.9 In Mayaba v Commission for Conciliation Mediation And Arbitration and Another (J2204/2014) [2014] ZALCJHB 364 (19 September 2014) the Labour Court held that it does have jurisdiction to consider urgent applications to uplift suspension. However, the issue is whether it is competent for the Labour Court to do so and found that only in exceptional and if compelling reasons are advanced, should it intervene. The court did not grant the urgent relief as the right to fairness applies only in processes under the LRA and an applicant cannot rely on an implied term in his contract.

There is no general right to be heard or to be provided with reasons or information prior to suspension if the suspension is a precautionary measure and not discipline

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24. OCCUPATIONAL DETRIMENT AND RELEVANT CONSIDERATIONS IN DETERMINING COMPENSATION

24.1 PROVISIONS OF THE PROTECTED DISCLOSURE ACT 24.1.1 What constitutes disclosure?

Section 1(i)(d) defines a disclosure as being “any disclosure of information regarding any conduct of an employer, or an employee of that employer, made by any employee who has reason to believe that information concerned shows or tends to show, into alia, that the health or safety of an individual has been, is being or is likely to be endangered.”

24.1.2 Protection

Section 3 of the Protected Disclosure Act, 26 of 2000 provides that “no employee may be subjected to any occupational detriment by his or her employer on account, or partly on account, of having made a protected disclosure.” The following constitutes occupational detriment: “(a) being subjected to any disciplinary action;

(b) being dismissed, suspended, demoted, harassed or intimidated; (c) being transferred against his or her will; (d) being refused transfer or promotion; (e) being subjected to a term or condition of employment or retirement which is

altered or kept altered to his or her disadvantage; (f) being refused a reference, or being provided with an adverse reference,

from his or her employer; (g) being denied appointment to any employment , profession or office; (h) being threatened with any actions referred to paragraphs in (a) to (g) above;

or (i) being otherwise adversely affected in respect of his or her employment,

profession or office, including employment opportunities and work security;”

24.1.3 In The Minister of Justice and Constitutional Development & another v Tshishonga

[2009] 9 BLLR 862 (LAC) the employee was suspended for making media comments criticizing the Minister. The employee claimed his statements were made under the Protected Disclosure Act. The chairperson at his disciplinary enquiry agreed and the suspension was lifted. The employee thereafter instituted action in the Labour Court for damages and was initially awarded 24 Months, which was later reduced on appeal.

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The Court held that once it has been established that there has been occupational detriment, save in the case of a dismissal, section 4(2) (b) of the PDA provides the remedy: Any other occupational detriment in breach of section 3 is deemed to be an unfair labour practice. The dispute about such an unfair labour practice must follow the procedure set out provided that if conciliation fails, the matter must be referred to the Labour Court for adjudication.

24.1.4 In Xakaza v Ekurhuleni Metro Municipality and others [2013] 7 BLLR 731 (LC) an

employee (Municipal Town Planner) was disciplined for refusing to register a scheme. It was held that disciplinary action does not constitute occupational detriment as the employee was repeatedly advised that his allegations about the scheme were factually and legally wrong but he persisted in his allegation.

24.1.5 In Van Alphen v Rheinmetall Denel Munition (Pty) Ltd (2013) 34 ILJ 3314 (LC) the Court held that the legislature could not have intended that complaints about the under- performance of a quality systems department should be afforded protection under the Act.

24.1.6 In Johannes Izak Beaurain v Martin and others (C16/2012) ZALC (delivered 10-14

March 2014). The Court considered whether a publication on Facebook could be regarded as a protected disclosure in the employee‟s claim for automatic unfair dismissal. In making its finding the Court considered

1. Was there a disclosure of an impropriety? 2. Notorious information cannot be subjected to disclosure 3. Did the employee make the disclose in a responsible manner and with good faith 4. Was it reasonable in all the circumstances to make the disclosure

It was held that the purpose of the act was to facilitate disclosure of information by employees relating to criminal and other irregular conduct in the workplace in a reasonable manner.

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25. MISCONDUCT – SPECIFIC OFFENCES (VIOLATIONS) 25.1 ABSENCE WITHOUT LEAVE (AWOL)

Desertion take place where an employee leaves the workplace with the intent of terminating the employment relationship.

25.1.1 In Khulani Fidelity Services Group v CCMA and Others [2009] 7 BLLR 664 (LC) the

Court held that unauthorized leave would only constitute desertion if the employee has fixed intention never to resume work. The Court further held that it was unreasonable for the employer to have concluded that the employee had deserted as the employee had sent his medical certificate to work.

25.1.2 In SACWU v Dyasi [2001] 7 BLLR 731 (LAC) the Court held that desertion amounts to

repudiation of the contract and that the employer was entitled to accept or reject it. The acceptance thereof results in dismissal.

25.1.3 In SA Broadcasting Corporation v CCMA & others (2002) 23 ILJ 1549 (LAC) Court

confirmed the principle that termination occurs once the employer accepts the repudiation. The Court held further that the employer was obliged to give effect to the principle of the audi alteram partem rule before the employer could take the decision to dismiss an employee.

25.1.4 In Mofokeng v KSB Pump (2003) 24 ILJ 1756 (BCA) it was held that the employer was

entitled to terminate the employment contract, based on the uncertainty about the length of the employee‟s absence. It was however stated that the dismissal had to be effected in accordance with a fair procedure and that the employer had a duty where possible to establish whether an employee had any intention of returning. As such the employer had to invite the employee to attend a disciplinary hearing (where he could be found) and then to determine the intention of the employee.

25.2 DISMISSAL BASED ON SUSPICION 25.2.1 In Mbanjwa v Shoprite Checkers (Pty) Ltd and others (DA4/11) [2013] ZALAC 129 (7

November 2013) the court that:

Whilst the respondent‟s so-called zero tolerance policy may be reasonably justifiable as an operational requirement and control measure against shrinkage and pilferage in large shopping businesses such as that of the respondent, the enquiry on the sustainability of the guilty finding against an employee dismissed for misconduct, remains the primary consideration.

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25.3 SUPERVENING IMPOSSIBILITY OF PERFORMANCE 25.3.1 In Moeketsi v Spilkin Optometrist [2012] JOL (CCMA) the employee was banned from a

shopping center where her workplace was situated. She was later dismissed on account of supervening impossibility. The commissioner held that the employer should have supported the employee more as there was no evidence of wrongdoing on the side of the employee and as such her dismissal was found to be substantively unfair.

25.3.2 In Mamabolo v Protea Coin Group (Pty) Ltd [2011] 10 BALR 104 (CCMA) the CCMA

held that where an employee‟s PSIRA permit was withdrawn after he was convicted and given a 3 year prison sentence his contract could lawfully be terminated based on the permanency of the incapacity.

25.4 ABSENCE WITHOUT LEAVE – IMPRISONED EMPLOYEES 25.4.1 In Lebowa Platinum Mines Ltd v CCMA & Others[2002] 5 BLLR 429 (LC) the Court held

that desertion by an employee is a breach of contract which requires acceptance by the employer and that it was in fact the acceptance of the breach which constituted the dismissal. The Court also held that once an employee tendered his services the employer was required to hold a disciplinary inquiry.

25.4.2 In Trident Steel (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration &

others (2005) 26 ILJ 1519 (LC) the Court held that imprisonment would suspend the employer‟s obligation to pay the employee. It also upheld the commissioner‟s finding that the dismissal was unfair as the employee had a valid explanation for his absence, which the employer should have considered.

Absence due to imprisonment may constitute a supervening impossibility to tender services. If that is the case, the employer must as a matter of fairness consider alternatives to dismissal such as a temporary replacement. If that is not possible the employer must engage the employee “in consultation in terms of section 189 of the Labour Relations Act about his redundancy or about its operational requirements.”

25.4.3 In Eskom Ltd v CCMA & others [2008] JOL22274 (LC) an employee was reinstated after

he was dismissed for having absconded. During the period of his absence he was incarcerated and when he was released he reported for duty. The commissioner determining the fairness of the dismissal found that the dismissal was substantively unfair but procedurally fair. In making this finding she considered the provisions of the employee‟s employment contract, which stipulated that the contract would terminate if the employee failed to report for seven consecutive calendar days “unless he was physically prevented from doing so”. The commissioner held that this exception also applied to instances where the employee was in jail and as such the employee had a reasonable explanation for his

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absence. The review application was filed late and when the Court considered the application, the Court with reference to Sidumo & another v Rustenburg Platinum Mine Ltd & others (2007) 28 ILJ 2405 (CC) the court held that the Employer had limited prospects of success and such condonation was refused.

25.4.4 In National Union of Mineworkers & another v Samancor Ltd (Turbatse Ferrochrome)

& other (2011) 32 ILJ 1618 (SCA) the Court held the normal principles that a contract can be cancelled on the basis that the employee was no longer capable of performing is only part of the enquiry as the question still remains whether under the circumstances of the case it would be fair to dismiss the employee. The Court also held that the employer should have done more to accommodate the employee and confirmed the finding of the commissioner that the dismissal was in fact substantively unfair.

In Samancor Tubatse Ferrochrome v MEIBC & others (2010) BLLR 824 (LAC) the Court

held that the following factors should be considered in determining if the dismissal was fair:

The service The reason for the incapacity, including whether it was a lawful arrest; Whether the employee was at fault Whether he or she caused the situation; Whether the employee was in the end convicted; and Whether the employee‟s actions leading to the arrest rendered a continuation of the

employment relationship intolerable; The extent of the incapacity (permanent or temporary); Alternatives that could be considered; The size and financial position of the employer party; The importance of the position occupied by the employee; Level of skill required for the position; Does fairness require that the position be kept open; Could a temporary arrangement be made; of the employee

It was held that a larger organization with deeper monetary pockets may be expected to take a more generous approach to the particular problem

25.4.5 In NUM & another v CCMA & others [2009] 8 BLLR 777 (LC) the Court held that the

commissioner must consider whether the impossibility is permanent or for a lengthy period.

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25.5 DISMISSAL FOR INCAPACITY 25.5.1 In IMATU obo Strydom v Witzenburg Municipality and Others [2012] 7 BLLR 660

(LAC) it was held that where the assessment reveals the employee is permanently incapacitated, the inquiry does not end there. The employer must then establish whether it cannot adapt the employee‟s working circumstances so as to accommodate the incapacity, or adapt the employee‟s duties or provide him with alternative work.

25.5.2 In National Union of Mineworkers v Libanon Gold Mining co Ltd (1994) 15 ILJ 585

(LAC) the Court held that the employer had a duty to accommodate an incapacitated employee. The possible alternatives must be exhausted in consultation with the employee and his union.

25.5.3 In A-B v SA Breweries Ltd (2001) 22 ILJ 495 (CCMA) it was confirmed that demotion

might be a justifiable alternative to dismissal for incapacity. 25.6 UNDER THE INFLUENCE OF ALCOHOL / DRUGS 25.6.1 In Marko Shanya v Trojan Truck systems (Pty) Ltd [2014] (CCMA) an employee was

charged and dismissed for reporting whilst being under the influence of drug (dagga). The commissioner held that the dismissal was both procedurally and substantively fair as the applicant was aware that smoking dagga was illegal and that he was not supposed to report for duty under the influence of drugs.

25.6.2 In Tanker Services (Pty) Ltd v Magudulela [1997] 12 BLLR 1552 (LAC) it was held an

employee will only be “under the influence of alcohol” if he was not able to perform the tasks entrusted to him. In this particular case it was held that an employee would not have been able to perform his task, namely driving a 32-Ton Truck with the same skill as a sober person. It was held the real test was whether the competence to perform has been impaired. The Court also held that where a person refuses to undergo a breathalyzer test, the obvious explanation would be that he wanted to avoid the risk of incriminating himself.

25.6.3 In Tosca Labs v CCMA & others [2012] 5 BLLR 529 (LC) the employee registered

positive on the breathalyzer. However the employer failed to prove that he was under the influence of alcohol as he was performing his duties without causing an incident and as such the commissioner held the dismissal was unfair. The Court upheld the decision.

25.6.4 In Transnet Freight Rail v Transnet Bargaining Council & Others [2011] 6 BLLR 594

(LC) the Court held where there is no proof that an employee has a dependency problem the fact that an employee was under the influence of alcohol could not be treated as incapacity. The Court further held that where an employee consciously consumes alcohol before reporting for duty he was guilty of misconduct and could be fairly dismissed.

25.7 DEROGATIVE AND RACIST REMARKS

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25.7.1 In Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and others (2002) 23 ILJ (LAC) the Labour Appeal Court held that calling a person a “Kaffir” had no place in the workplace and when it happens it is a dismissible offence as it impacts on Constitutional values such as dignity, equality and freedom. “

25.7.2 The Labour Court in Custance v South African Local Government Bargaining Council

& Others (2003) 24 ILJ (LC) held that off-duty racism impacts on the workplace. 25.7.3 In Modikwa Mining Personnel Services (Pty) Ltd v CCMA & Others [2012] ZALCJHB

(Handed down 29 June 2012) it was held the plain meaning of words on their own could constitute racial slur, which could indicate racism.

See Specialized Belting & Hose (Pty) Ltd v Sello NO & Others [2009] 7 BLLR 704 (LC)

and also JAMAFO Nero v Pick ‘n Pay (2007) 28 ILJ 588 (CCMA) where the impact of derogatory and discriminatory statements on the employer‟s workplace was considered.

25.7.4 The Labour Court in Solidarity/MWU on behalf of Van Staden v Highveld Steel &

Vanadium & another (2005) 26 ILJ 2045 (LC) held that an appeal which, would amount to a rehearing, was permissible because the acquittal of the employee by the original disciplinary tribunal on charges of racial abuse was irrational. It was held that fairness was the yardstick for determining whether a rehearing should be allowed.

25.7.5 In Sedick & Another v Krisray (Pty) Ltd [2011] 8 BALR 879 (CCMA) it was held that

bringing the company name into disrepute by publishing derogative remarks about an employer on Facebook could result in a fair dismissal.

25.8 UNAUTHORISED REMOVAL OF EMPLOYER’S PROPERTY

UNAUTHORISED EATING IN A SUPERMARKET

Pilferage in supermarkets is a serious problem and employers have reason to make rules designed to eradicate the problem. This does not however mean that every breach of such rules should be visited with the sanction of dismissal. In other words commissioners should not necessarily tolerate a zero tolerance approach. Factors such as the value of the items involved, the employee’s length of service and a clean disciplinary record may move an arbitrator to find that dismissal was an unfair sanction and such a finding would not be unreasonable.

25.8.1 In Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 12 BLLR 1211 (LAC) an

employee who was a first offender with 30 years of service was captured on video for having consumed food in an area in which such activities were prohibited. The employee was thereafter dismissed for misconduct. The Court acknowledged that shrinkage was a

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real problem for employers like Shoprite. The Court held that all the relevant circumstances must be taken into account. Factors in mitigation, such as an employee‟s years of service and clean service record needed consideration when the appropriateness of the sanction had to be determined.

25.8.2 In Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 9 BLLR 838 (LAC) although the

commissioner found the employee (who was seen on video footage on 3 occasions eating pap and bread belonging to the employer) was not guilty of theft, on appeal the legal representatives of the employee conceded that he was guilty thereof. The LAC therefore only had to consider the issue of sanction. The Court considered in aggravation the shrinkage the respondent suffered at the time of the offence and that employees were aware of the losses suffered by its employer. The Court also considered that the employee was dishonest even in his conduct before the Court and that there was clear evidence that the trust relationship was irretrievably broken down. The Court held that the dismissal was fair.

CONCEALMENT & DISHONESTY 25.8.3 In Rainbow Farms (Pty) Ltd v CCMA & Others [2011] 5 BLLR 451 (LAC) an employee

was dismissed for taking a litre of milk without authorization. The employee was entitled to drink the milk for free but only whilst at work. He was caught with the milk after he had passed through the first security gate. The Court held that he had a clear intention to remove the milk which was sufficient to constitute unauthorized removal of milk, which was deemed a dishonest act for which dismissal was an appropriate sanction.

25.8.4 In Woolworths (Pty) Ltd v CCMA & Others [2011] 10 BLLR 936 (LAC) the LAC held that

where an employee had concealed items underneath her clothes that she had committed an act of gross dishonesty which resulted in an irreparable breakdown of the employment relationship. The Court with approval referred to Toyota SA Motors (Pty) Ltd v Radebe & others (2000) 21 ILJ 340 (LAC) where it was held that long service cannot save an employee who is guilty of having committed serious misconduct.

25.8.5 In Miyambo v CCMA & others (2010) 31 ILJ 2031 (LAC) an employee was found in

possession of scrap metal in a random security check. He was not authorized to have it and was aware the employer was going to sell it for its own benefit. The Commissioner found that the employee committed theft but the sanction was too severe. The Labour Court overturned the finding. On appeal the legal representative of the employee conceded that he committed theft but argued the employee had 25 years of service and a clean disciplinary record. In its finding the Court emphasized the requirement of the trust relationship in relation to the employer‟s operational requirements.

The Court then with approval referred to the matter of De Beer Consolidated Mines Ltd v CCMA & Others [2000] 9 BLLR 995 (LAC) and to Shoprite Checkers (Pty) Ltd v CCMA & Others [2008] 9 BLLR 838 (LAC) which justified a strict approach to dishonest conduct in the workplace on the basis of the employer‟s operational requirements.

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With regard to long service as a mitigating factor, the Court with approval referred to Toyota South Africa Motors (Pty) Ltd v Radebe & Others [2000] 3 BLLR 243 (LAC) and Hulett Aluminum (Pty) Ltd v MEIBC & Others [2008] 3 BLLR 241 (LC) where it was held that serious acts of misconduct, such as gross dishonesty would render factors such as length of service and a clean disciplinary record irrelevant in determining the appropriate sanction to be applied and came to the conclusion that the Court places a high premium on honesty in the workplace.

25.9 SLEEPING WHILE WORKING IMPERMISSIBLE HOURS AND DISHONESTLY

RECEIVING PAYMENT FOR SUCH HOURS 25.9.1 In Boardman Brothers (Natal) (Pty) Ltd v CWIU [1998] 7 BLLR 655 (A) The Court held

that it would be unfair for an employer to dismiss employees if they were confronted with working hours with which they could not physically cope. The Court further held whilst the employees were at fault in not informing management that they were incapable of working the agreed hours and by claiming payment for the hours, which they had not worked, dismissal under these circumstances was not the appropriate sanction.

25.10 DERIVATIVE MISCONDUCT

In a situation where an employee has information that would enable an employer to identify wrongdoers and then fails to come forward when asked to do so, his actions may violate the trust relationship upon which the employment relationship is founded.

25.10.1 In Foschini Group v Maidi & others (2010) 31 ILJ 1787 (LAC) the Court held that a

group employees can be dismissed for “team misconduct”, after the employer recorded a shrinkage of 28% at one of its stores. It was held that as individual components of the group each employee has culpably failed to ensure that the group complies with a rule or attained a performance standard set by the employer.

25.10.2 In FAWU obo Kapesi & others v Premier Foods t/a Blue Ribbon Salt River [2010] 9

BLLR 903 (LC) the Court held with reference to the Pep Store matter that section 189 procedures could be followed on the principle of economic viability of the employer. It however held that the emphasis would then not be on the misconduct but on the requirements set out in section 189 of the LRA. The Court was also more ready to accept hearsay evidence especially in the situation where witnesses were too scared to give evidence.

25.10.3 In SAGAWU obo Cingo & another v Pep SA Ltd t/a Pep Stores [2004] 10 BALR 1262

(LC) the Labour Court accepted the dismissal of employees of two stores where the stock losses amounted to 81% of the total value of the stock in the store, on the ground of operational requirements.

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25.10.4 In Chauke & others v Lee Service Centre t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) the Court held that the dismissal of a group of employees on the grounds of operational requirements may be permitted in circumstances where acts of misconduct were committed by one or more member of a group of employees but where it cannot be ascertained which of the members of the group actually committed the acts of misconduct.

25.10.5 In FEDCRAW v Snip Trading (Pty) Ltd [2001] BALR 669 (P) employees were held

collectively liable if the stock losses in a store exceeded one per cent of turnover and if the stock losses exceeded the limit it was regarded as a breach of their employment contract. The commissioner held that an employee could only be held accountable for acts of misconduct committed by members of a group in three circumstances.

The first was where he was one of the persons in the group who actually committed

the acts of misconduct The second is where the employee may not actually have committed the acts of

misconduct but associated himself with these acts of misconduct or associated himself with the common goal of the group (herewith the doctrine of “common purpose”); and

Thirdly where he is guilty of derivative misconduct – reference was made to Chauke & others v Lee Service Centre t/a Leeson Motors (1998) 19 ILJ 1441 (LAC), where an employee‟s guilt was based on the fact that the employee did not co-operate with the employer by, for example, failing to identify the employee(s) who were guilty of the „primary misconduct‟, in circumstances where he or she was able to do so.

25.11 FAILURE TO UNDERGO POLYGRAPH TEST 25.11.1 In DHL Supply Chain (Pty) Ltd v NBCRFLI and others [2014] 9 BLLR 860 (LAC) (13

May 2014) it was held that the inference to be drawn from the failure of the test is useful as material to determine probabilities. In the absence of expert evidence to explain what that inference is, either generically, or within the bounds of the specific instance itself, and also to justify the explanation of what that is, there is nothing usable at all that might contribute to the probabilities.

The Court held that the reliability of polygraph evidence, at best, remains an open

question, and any litigant seeking to invoke it for legitimate purposes, must adduce expert evidence of its conceptual cogency and the accuracy of this application in every given case.

25.11.2 In FAWU obo Kapesi and Others v Premier Foods t/a Blue Ribbon Salt River (2012)

33 ILJ 1779 (LAC) it was stated that at best a polygraph could be used as part of the investigative process to determine whether or not a further investigation into the conduct of a particular individual is warranted.

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25.11.3 In SATAWU and Others v Khulani Fidelity Security Services (Pty) Ltd (2011) 32 130 (LAC) employees were removed off site if they failed quarterly polygraph tests, at the instance of the Airports Company and thereafter retrenched. This occurred in terms of a collective agreement and it was held that the practice did not result in a violation of any right. The Court held that the purpose of the polygraph test was not to determine who committed theft but rather to test the integrity of the employees involved.

25.11.4 In Truworths Ltd v CCMA (2009) 30 ILJ 677 (LC) the award was set aside as the

commissioner had not properly considered the evidence, amongst which was evidence of polygraph tests. It was held that a polygraph test results can be considered as corroboration of other evidence.

25.11.5 In National Union of Mineworkers & others v Coin Security Group (Pty) Ltd t/a Protea

Coin Group (2011) 32 ILJ137 (LC) in terms of the employees‟ employment contract they could be required to successfully undergo a polygraph test if the employer, or its client asked them to. Employees were forced to go and when they failed they were dismissed or operational requirements and the court held that it was bound by the decision of Khulani but was reluctant to find that the dismissal could constituted a dismissal for operational requirements. See also Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and others [2008] 3 BLLR 197 (LAC)

25.12 INSUBORDINATION

25.12.1 In Wasteman Group v South African Municipal Workers’ Union [2012] 8 BLLR 778 (LAC) the Court considered the difference between insubordination per se and insubordination which must give rise to the ultimate sanction of dismissal. It was held that the difference between insubordination and gross insubordination is a question of degree. It was held that there is a difference between an employee that partially defies an instruction but later completely complies with it and an employee that deliberately refused to obey and instruction, expressly defying an instruction and challenging the authority of the employer, especially in the presence of other employees.

25.13 FAILURE TO DISCLOSE PREVIOUS DISMISSAL 25.13.1 In ESKOM Holdings Ltd v Fipzaz & others (2013) 34 ILJ 549 (LAC) The employee‟s

contract was terminated with Eskom in 2006 for misconduct. Two years later she again applied for a job at Eskom and she did not mention in either her CV or in her interview that Eskom previously dismissed her. The panel did also not enquire about this. She was thereafter offered the position and accepted it. Before she however commenced with her employment Eskom withdrew the offer on the ground that she had not disclosed this material fact.

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The Court held there was no duty either ex contractu or ex lege on the employee to disclose that she was previously dismissed from Eskom. All the information she provided was true and there was no evidence of fraudulent misrepresentation made by the employee. An employer can only rely on non-disclosure if there is an obligation on the employee to disclose the information.

25.13.2 In ABSA Bank Ltd v Fouche 2003 (1) SA 176 (SCA) the Court held the test for

unlawfulness of non-disclosure in a contractual context related to the following principles:

It is not the norm that one contracting party needs to tell the other all he knows about everything that is material.

A party is expected to speak when the information he has to impart falls within his exclusive knowledge so that in a practical sense the other party has him as his only source.

The information must be such that the other party‟s right that it be communicated to him would be mutually recognised by honest men in the circumstances.

25.14 FAILURE TO ATTEND A DISCIPLINARY ENQUIRY

There are very few circumstances where an employer can justify failure to allow the employee a hearing but it would be possible under the following circumstances: Where the employee has absconded and the employer, despite all its

reasonable efforts, were unable to secure the employee‟s attendance; The employee refuses to attend the disciplinary hearing thus waiving his

right to be heard; The employee fails to attend the hearing without an acceptable

explanation.

25.14.1 In Old Mutual Life Assurance Co SA Ltd v Gumbi [2007] 4 ALL SA 866 (SCA) (17 May

2007) the Court held that an employee‟s deliberate absence from a disciplinary enquiry does not affect the validity of such dismissal.

25.14.2 In Fidelity Cash Management Service v CCMA & others [2008] 3 BLLR 197 (LAC) it

was held that failure to attend a disciplinary hearing would not constitute misconduct since employee did not commit an offence if they decide not to rely on their right to state a case. The Court further held that the fairness of the dismissal must be based on the reasons relied on by the employer at the time of the dismissal.

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26. TAX DEDUCTIONS FROM AMOUNTS DUE IN TERMS OF SETTLEMENT AGREEMENTS AND AWARDS.

26.1 In Eckhard v Filpro Industrial Filters (Pty) Ltd (1999) 20 ILJ 2043 (LC) the Court held

that where the settlement agreement is silent with regard to tax, then the party on who the tax burden would normally fall, namely the employee, is obliged to pay the tax.

26.2 In Shellard Media (Pty) Ltd v Barnard [2002] 11 BLLR 1359 (LC) it was held that where

an employer deducts PAYE from a settlement agreement and pay the balance to the applicant that employer, has complied with the settlement agreement.

26.3 In Motor Industry Staff Association & Another v Club Motors, a Division of Barlow

Motor Investments (Pty) Ltd (2003) 24 ILJ 421 (LC) the Court held that neither an express nor an implied term in a settlement agreement can override the statutory obligation to deduct tax from a gross settlement figure.

(See also LSRC & Associates v Blom (2011) 32 ILJ 2685 (LC)) 26.4 In Penny v 600 SA Holdings (Pty) Ltd (2003) 24 ILJ 967 (LC) the Court held that the

CCMA is not competent to determine tax owing on compensation. This is an issue for the South African Revenue Service to determine. Further to this the Court held that an employer could set off proven liquidated amounts owing by the employee to the employer against the compensation amount.

26.5 In Naidoo v The Careways (Pty) Ltd and Another [2014] 1 BLLR 69 (LC) the Court held

that and employer was not entitled to retain the whole of an employee‟s salary as a set-off against tax owed by the employee to SARS. Any deduction by the employer from the employee‟s salary had to comply with the provisions of section 32(3) and section 34(1)(a) of the Basic Conditions of Employment Act.

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27 STATUTORY MONIES 27.1 CONSOLIDATION OF DISPUTES 27.1.1 In terms of the amendments to Section 74 of the BCEA of 2013 the jurisdiction of the

Labour Court and CCMA to deal with claims in the course of hearing an unfair dismissal case are to be broadened to cover any claim by the employee under the BCEA that has not prescribed.

27.2 CALCULATION: FOR PURPOSES OF DETERMINING IF AN EMPLOYEE IS EARNING

BELOW THE THRESHOLD (SECTION 6(3) OF THE BCEA) 27.2.1 In Mondi Packaging (Pty) Ltd v Department of Labour & Others (2008) 29 ILJ 371 (LC)

the employees wanted to be paid overtime however the employer argued they were not entitled to the benefit as they were earning above the threshold. In determining their annual income the employer used the overtime the employees had worked.

The Court held that because of the nature of overtime it could not have been the Minister‟s intention to include overtime payments in the calculation of annual earning, when a determination had to be made whether or not the employee was earning below or above the threshold.

27.3 CALCULATION FOR SEVERANCE PAY

27.3.1 In Zietsman & others v Transnet Ltd (2008) 29 ILJ 779 (LC) the employees were party

to a dealer bonus scheme. When they were retrenched they wanted the employer to include the bonuses in the calculation of the severance pay. The employees were paid severance pay in excess of the formula provided for in section 41 of the BCEA. The Court held that the schedule does not apply when calculation severance pay that is more than the minimum prescribed in section 41, unless the parties agree that the calculation is in terms of section 35 (5).

27.4 CALCULATION OF OUTSTANDING STATUTORY AMOUNTS

(See Item 1 of Schedule to Section 35 (5) Notice published in Government Notice number GN 691 of 23 May 2003 published in GG 24889 of 23 May 2003).

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27.4.1 WHAT AMOUNTS TO INCLUDE

Calculating severance pay, leave pay and notice pay “The following payments are included in an employee's remuneration for the purposes of calculating pay for annual leave in terms of section 21, payment instead of notice in terms of section 38 and severance pay in terms of section 41:

(a) Housing or accommodation allowance or subsidy or housing or accommodation received as a benefit in kind;

(b) car allowance of provision of a car, except to the extent that the car is provided to enable the employee to work;

(c) any cash payments made to an employee, except those listed as exclusions in terms of this schedule;

(d) any other payment in kind received by an employee, except those listed as exclusions in terms of this schedule;

(e) employer's contributions to medical aid, pension, provident fund or similar schemes;

(f) employer's contributions to funeral or death benefit schemes.”

27.4.2 WHAT AMOUNT IS EXCLUDED

“The following items do not form part of remuneration for the purpose of these calculations:

(a) Any cash payment or payment in kind provided to enable the employee to work (for example, an equipment, tool or similar allowance or the provision of transport or the payment of a transport allowance to enable the employee to travel to and from work);

(b) a relocation allowance; (c) gratuities (for example, tips received from customers) and gifts from the

employer; (d) share incentive schemes; (e) discretionary payments not related to an employee's hours of work or

performance (for example, a discretionary profit-sharing scheme); (f) an entertainment allowance; (g) an education or schooling allowance.”

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27.4.3 VALUE OF PAYMENT IN KIND (SCHEDULE TO SECTION 35(5))

Item 2 of Schedule to Section 35 (5) notice. The value of payments in kind must be determined as follows:

(a) A value agreed to in either a contract of employment or collective agreement, provided that the agreed value may not be less than the cost to the employer of providing the payment in kind; or

(b) the cost to the employer of providing the payment in kind. Item 3 of Schedule to Section 35 (5) notice referred to above. “An employee is not entitled to a payment or the cash value of a payment in kind as part of remuneration if-

(a) the employee received the payment or enjoyed, or was entitled to enjoy,

the payment in kind during the relevant period; or

(b) in the case of a contribution to a fund or scheme that forms part of remuneration, the employer paid the contribution in respect of the relevant period.”

Item 4 of Schedule to Section 35 (5) notice referred to above. “If a payment fluctuates, it must be calculated over a period of 13 weeks or, if the employee has been in employment for a shorter period, that period.” Item 6 of Schedule to Section 35 (5) notice referred to above. “This Schedule only applies to the minimum payments that an employer is required to make in terms of the Basic Conditions of Employment Act, 1997.”

27.5 CALCULATING LEAVE PAY LEAVE PAY-WHEN PAYABLE AND LIMIT 27.5.1 In Jooste v Kohler Packaging Ltd (2004) 25 ILJ 121 (LC) the employee had 141

accrued leave days at the time of his dismissal. He was entitled to 25 days leave per

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annum. The employer only paid him for 50 days on termination. He felt aggrieved and demanded payment for the 91 remaining days.

The Court held that the BCEA constitutes social legislation to establish minimum terms and

conditions of employment. 1. Parties are forbidden to contract out of its main provisions. 2. In terms of the BCEA the employer grants to the employee the stipulated minimum

period of annual leave on full remuneration. 3. Upon termination of the employment contract the employer must pay to him his full

remuneration in respect of leave accrued, and for the pro rata portion of the current leave cycle.

4. The employer is however only liable for payment in respect of the leave accrued in the cycle immediately preceding that during which termination takes place (apart from the pro rata entitlement from the current cycle).

5. The employee must insist on the rights and benefits to which he is entitled.

LEAVE PAY – AGREEMENT TO PAY LEAVE PAY ON A MONTHLY BASIS AND NOT AT THE TIME LEAVE IS TAKEN

27.5.2 In Minny & another v Smart Plan CC (2010) 31 ILJ 675 (LC) employees resigned during

the leave cycle and then claimed leave pay. The employer contended no leave pay was owed as the employees were already paid their leave pay as part of the fixed hourly rate they already received.

The Court held that section 4 of the Act read with s21, 1. requires an employer to pay an employee leave pay equivalent to the

remuneration that the employee would have received for working the period of annual leave either before the beginning of the period of annual leave period or, by agreement, on the employee‟s usual pay day.

2. The court found that in the case of employees earning more than the section 6(3) threshold, receiving leave pay in advance did not constitute a breach of the BCEA:

27.6 CALCULATING NOTICE PAY 27.6.1 In SABC v CCMA & Others [2002] 8 BLLR 693 (LAC) it was held that notice pay should

not be included in compensation as compensation is payable in addition to, and not a substitute for, any amount due in terms of any law, Collective Agreement or Contract of employment.

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27.6.2 When is there no obligation to pay notice pay?

……The law in regard to notice pay is clear. It is that an employer only has an obligation to pay notice pay to an employee on termination of employment if the termination is not due to misconduct on the employee of a sufficiently serious nature to justify the termination.”

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28 ORGANISATIONAL RIGHTS 28.1 JURISDICTIONAL REQUIREMENTS 28.1.1 In SA Commercial Catering and Allied Workers Union v Specialty Stores Ltd (1998)

19 ILJ 557 (LAC); [1998] 4 BLLR 352 (LAC) it was held that the CCMA may decide on existence of jurisdictional preconditions for the exercise of statutory powers by CCMA. These preconditions must be adhered to before the CCMA can validly exercise its functions.

The substantive preconditions for the exercise of the commission‟s functions of conciliation and arbitration in terms of s 21(6) and s 21(7) of the Act are those set out in s21(1), viz that it can exercise those functions only –

in respect of organizational rights conferred by Part A of Chapter III of the Act; and

in respect of the exercise of the rights in a “workplace” as defined by s 213 of the Act.

Procedurally, the following facts must exist:

a written notice must have been sent by a registered trade union to an employer (s 21(1));

the notice must have been accompanied by a certified copy of the trade union‟s certificate of registration (21(2));

the notice must contain specific particulars (s 21(2)(a)-(c)); the employer must have received the notice (s 21(3)); no collective agreement must have been concluded as to the manner in which

the trade union will exercise the rights in respect of a particular workplace either because no meeting was held in terms of s 21(3), or because no agreement was reached at such a meeting;

a dispute or alleged dispute must exist (s 21(4)); the dispute must have been referred to the commission by one of the parties (s

21(4)); a copy of the referral must have been served on the other party (s 21(5)); the commission must have appointed a commissioner to resolve the dispute by

conciliation (s 21(6)); in the case of arbitration, further, that the attempt at conciliation must have

failed and one of the parties must have requested arbitration (s 21(7)).

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PEREMPTORY REQUIREMENTS

28.1.2 In Health & Hygiene Services v Seedat NO & others [1999] 11 BLLR 1153 (LC) the Labour Court confirmed that the effect of the LAC‟s finding in the Speciality Stores case was found to be binding. See the discussion on Speciality Stores case above.

28.2 WHAT CONSTITUTES A WORKPLACE 28.2.1 In SA Commercial Catering and Allied Workers Union v Specialty Stores Ltd (1998)

19 ILJ 557 (LAC) it was held that the CCMA is competent to determine what constitute a workplace.

28.2.2 Definition of workplace in section 213 of the LRA

The meaning of “workplace” outside of the Public Service appears from paragraph (c) of the definition of “workplace” contained in s 213: Workplace: (a) … (b) … (c) “in all other instances, means the place or places where the employees of an

employer work. If an employer carries on or conducts two or more operations that are independent of each other by reason of their size, function or organization, the place or places where the employees work in connection with each independent operation, constitutes the workplace for that operation.

28.3 MORE THAN ONE PLACE OF WORK

28.5.1 In Chamber of Mines of south Africa acting in its own name and obo Harmony Gold

Mining Company Ltd and another v Association of Mineworkers and Construction Union and others [2014] 3 BLLR 258 (LC) the court held that workplace as defined in the LRA referred to the entire workplace and is not limited to the bargaining unit and accordingly three mines owned and operated by a consortium of employers constituted a single workplace.

“A „workplace‟ encompasses all the different places of work of an employer (unless some of them are independent in the sense specified in the definition). On the other hand, one worksite may be fragmented into several „workplaces‟ if independent operations are identified there. Compare the Australian approach, which focuses on the individual geographical site: a workplace is “a single physical area occupied by the establishment from which it engages in productive activity on a relatively permanent basis”. (Original emphasis.)

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28.5.2 For the meanings attached to “workplace” see:

FAGWU obo Miya & 95 others v Capital Contracting Services (unreported); OCGAWU v Woolworths (Pty) Ltd (1997) 7 BALR 813 (CCMA); OCGWU & another v Total SA (Pty) Ltd (1999) 20 ILJ 2176 (CCMA); SABAWU v Mr Price, unreported Case No GAJB 20440-06; DICHAWU obo Members v Mr Price, unreported Case No: GAJB 20440/06.

28.4 WORKPLACE AT THE PREMISES OF A TES, CLIENT OF TES OR CLIENT

The following additions to section 21 have been proposed in terms of the workplace where organizational rights may be exercised

Section 21(12) of the LRAA of 2014 provides: If a trade union seeks to exercise the rights conferred by Part A in respect of employees of a temporary employment service, it may seek to exercise those rights in a workplace of either the temporary employment service or one or more clients of the temporary employment service, and if it exercises rights in a workplace of the temporary employment service, any reference in Chapter III to the employer‟s premises must be read as including the client’s premises.

28.5 QUALIFYING FOR ORGANISATIONAL RIGHTS

28.5.1 In Association of Mineworkers and Construction Union obo Members v Sibanye Gold Driefontein Mine [2014] 8 BALR 794 (CCMA) it was held that where parties have entered into a collective agreement, setting out a threshold for organizational rights, that the union will only be entitled to claim that right if it meets the agreed requirement. On the other hand the Employer was not obliged to withdraw the right if the union‟s membership dropped below the threshold set.

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28.5.2 SIGNIFICANT INTEREST

Amendments in terms of the LRAA of 2014

In terms of section 21(8C) of the LRAA of 2014, a commissioner may grant a trade union or trade unions acting jointly certain organizational rights (s12, 13 and 15) irrespective of the requirements of the threshold agreement and provided that such union/ unions acting jointly represent a significant interest or a substantial number of employees in the workplace.

28.5.3 In Solidarity v Mercedes Benz of SA (Pty) Ltd [2011] 11 BALR 1216 (CCMA) the

commissioner held that level of representation is determined with reference to that total numbers of employees in the workplace, and not to a number of employees in a particular bargaining unit. In terms of section 21 of the LRAA of 2014, the composition of the workforce in the workplace should take into account the non-standard employees.

28.5.4 Factors to consider in awarding organizational rights

In awarding organizational rights, once the new amendments to the LRA have been enacted, the Commissioner must consider the following factors:

Amendments to section 21(8)(b) of the LRA : In determining whether or not a trade union is a representative trade union the commissioner will be required to consider:

(i) the nature of the workplace; (ii) the nature of the right(s); (iii) nature of the sector; (iv) the organizational history; (v) the composition of the work-force, taking into account employees employed by a

TES, Fixed term employees, part-time employees or employees in other categories of non-standard employment. (inserted in terms of the LRAA of 2014)

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28.5.5 MOST REPRESENTATIVE TRADE UNION

Amendments in terms of the LRAA of 2014

Once the new amendments to the LRA have been enacted the rights traditionally reserved for Majority Trade Unions might also be awarded to be the most representative trade union under the following conditions:

Section 21(8A) of the LRAA of 2014 provides: (8A) Subject to the provisions of subsection (8), a commissioner may in an arbitration

conducted in terms of section 22(4) grant a registered trade union that does not have as members the majority of employees employed by an employer in a workplace-

(a) the right referred to in section 14, despite any provision to the contrary in that

section if- (i) the trade union is entitled to all of the rights referred to in section 12,13

and 15 in that workplace; and (ii) no other trade union has been granted the rights referred to in section 14

in that workplace.

(b) The rights referred to in section 16, despite any provision to the contrary in that section if (i) the trade union is entitled to all of the rights referred to in section

12,13,14 and 15 in that workplace; and (ii) no other trade union has been granted the rights referred to in section 16

in that workplace.

These rights will however lapse if the trade union is no longer the most representative trade union

28.5.6 In Transnet Soc Ltd v National Transport Movement and others [2014] 1 BLLR 98

(LC), the Court held with reference to the finding in National Union of Mineworkers of SA and others v Bader Bop (Pty) Ltd (2003) 24 ILJ 305 (CC), that a minority union is entitled to bargain and if necessary strike over a demand for organizational rights, even though the union‟s membership falls short of the threshold set by a collective agreement between the employer and the recognized union.

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28.6 RELEVANT CONSIDERATIONS WHEN SETTLING 28.6.1 In Transport Action Retail & General Workers Union and Blue Waters Hotel (2012) 33

ILJ 2514 (CCMA) the commissioner considered the terms of a settlement agreement whereby stop order facilities was granted. The agreement was however silent in respect of access. It was held there was nothing in the agreement that precluded the union from seeking to exercise the right to access at a later stage.

Any office bearer or official of representative trade union is entitled to enter the employer‟s premises in order to recruit members or communicate with members, or otherwise serve their interests. A representative union is entitled to hold meetings with employees outside their working hours at the employer‟s premises. These rights are however subject to any conditions as to time and place that are reasonable and necessary to safeguard life or property or to prevent the undue interruption of work. The rights exist if the union is sufficiently representative of the employees employed in the employer‟s workplace. Once it is established that the union is sufficiently representative it is only the manner in which the trade union will exercise the rights in respect of that workplace that is required to be negotiated. See section 21 (3). For this reason the LRA requires of a trade union seeking to exercise organisational rights to notify the employer of the rights that it seeks to exercise as well as the manner in which it seeks to exercise those rights. If no collective agreement is concluded the LRA requires the dispute to be resolved through conciliation and, if necessary, arbitration. Settlement agreements and arbitration awards relating to disputes about rights of access therefore normally deal with the representativeness of the trade union and, if it is sufficiently representative, with the manner in which the rights of access are to be exercised.

28.6.2 In Edgars Consolidated Stores Ltd v FEDCRAW [2004] 7 BLLR 649 (LAC) it was held

that settlement agreements regulating organizational rights are collective agreements. Therefore such settlement agreements entered into for an indefinite period may be terminated on reasonable written notice unless the agreement itself provides otherwise.

It must be borne in mind that in addition to the two categories introduced in terms of the LRAA of 2014 above, the current categories of either being the majority union or sufficiently representative remain for obtaining organizational rights remain.

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29 ENFORCEMENT OF AWARDS/ ORDERS 29.1 THE EFFECT OF CERTIFICATION OF AN AWARD 29.1.1 In Chillibush Communications (Pty) Ltd v Gericke and others (2010) 31 ILJ 1350 (LC)

after a commissioner granted an employee compensation in an arbitration award the employer sought to review the award. During this time the Director certified the award and the employer sought an undertaking from the employee not to execute. The employee was willing to do so if the employer paid the monies into a trust account, which the employer was not prepared to do. The employee sought to execute and the employer applied for a stay of a writ of execution.

The Court held that certification does not change the award into an order of the Labour Court. It is an administrative function.

Please see the discussion on the Tony Gois judgment under Chapter 9 dealing with

rescissions. 29.1.2 In MIBCO v Osborne & others [2003] 6 BLLR 573 (LC) the Bargaining Council applied to

have several awards issued after the LRA amendments of 2002 have come into operation, to be made orders of Court. The Court held that an arbitration hearing, in terms of the (MIBCO) collective agreement is regulated by the Arbitration Act 42 of 1965. A final and binding award made by an arbitrator of the DRC, acting in terms of a collective agreement referred to above, may be made an order of this Court in terms of section 31 of the Arbitration Act. The order is enforceable in the ordinary way.

The effect of the amendment of Section 51 of the LRA is that certification of an award by the director of the CCMA renders it as effective as if it were an order of the Labour Court for purposes of enforcement. The route of section 143 is now open to bargaining councils.

29.1.3 In Molaetsa v Meyer & another (2007) 28 ILJ 2600 (LC) it was held that if an employer

does comply with an arbitration award ordering reinstatement of an employee, the employee would be entitled to institute contempt proceedings against such an employer.

29.1.4 In Robor (Pty) Ltd (Tube Division) v Joubert & others (2009) 30 ILJ 2779 (LC) it was

held that the certification of an award does not constitute a ruling or award, and no new line of attack is opened up for a party aggrieved by the outcome of an arbitration proceedings when the award is certified.

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29.2 SET - OFF

29.2.1 In Rank Sharp South Africa (Pty) Ltd v Kleinman (2012) 33 ILJ 2937 (LC) the Court held that the requirements for setting off a debt were as follows:

The debts must be owing between the same parties in the same capacity.

The debts must be of the same kind.

The reciprocal debts must be due and enforceable.

Both debts must be liquidated in that they are capable of speedy and easy proof.

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30 SECTION 188A ARBITRATIONS 30.1 EFFECT OF AN AGREEMENT IN TERMS OF SECTION 188A OF THE LRA 30.2.1 In SATAWU & others v MSC Depots (Pty) Ltd & others (2013) 34 ILJ 706 (LC) the

Court held that the wording of s188A has the effect that once an employer and an employee consent to refer the determination of allegations of misconduct or incapacity to an arbitration hearing in terms of s188A, and once the CCMA accedes to the request, the employer effectively agrees to bypass the application of its internal disciplinary procedures and to accelerate the disciplinary process to the stage of the arbitration hearing, ordinarily applicable in a post-dismissal phase.

The effect of the MSC Depots judgment is that where an employer and its employee agreed on the s188A arbitration, it is not open to the employer to abandon that process and to hold an internal disciplinary enquiry relating to the same charges. The judgment does not mean that the employer may not unilaterally abandon a section 188A process by withdrawing the charges once and for all.

30.2 COMPETENT FINDING 30.2.1 In Mudau v MEIBC & others (2013) 34 ILJ 663 (LC) the Court held that the arbitrator's

mandate in terms of s 188A is to determine on a balance of probabilities whether an employee has committed an offence for which he or she has been charged and if so, whether there is a basis in fairness to terminate the employment relationship between the parties. The terms of reference for the arbitrator in terms of s188A are, unless indicated otherwise, limited to determining whether an employee has committed an offence and, if so, whether there exists a basis in fairness to terminate the employment relationship.

30.3 PROCESS LIMITED TO THE ALLEGATIONS LEVELLED 30.3.1 During section 188A arbitrations it is not open to arbitrators to find an employee guilty of

misconduct not covered by the allegation put to the employee.

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31 REVIEW TEST 31.1 REVIEW

31.1.1 The seminal case of Sidumo and another v Rustenburg Platinum Mines Ltd and

others [2007] 12 BLLR 1097 (CC), held that [at par 110]: “the better approach is that section 145 [of the LRA] is now suffused by the constitutional standard of reasonableness”. “Is the decision reached by the commissioner one that a reasonable decision maker could not reach? By applying this test, it will give effect not only to the constitutional right to fair labour practices, but also to the right to administrative action, which should be lawful, reasonable and fair”.

In terms of Sidumo, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would have done, but simply to decide whether what the employer did was fair or not. In arriving at a decision a commissioner is not required to defer to the decision of the employer at all, but is required to approach the dispute in an “impartial” manner, taking into consideration the “totality of circumstances”.

31.1.2 In Southern Sun Hotel Interests (Pty) ltd v CCMA (2010) 31 ILJ 452 (LC) Van Niekerk J

held that section 145 of the LRA requires that the outcome of any CCMA arbitration “falls within the band of reasonableness”. Van Niekerk J also went on to hold that if a commissioner fails to take into account material evidence, or has regard to irrelevant evidence, or the commissioner commits some other form of misconduct or a gross irregularity during the proceedings under review and a party is likely to be prejudiced as a consequence, the commissioner‟s decision is liable to be set aside regardless of the result of the proceedings or whether on the basis of the record of the proceedings, that result is nonetheless capable of justification.

31.1.3 In Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA) at paragraph 25 the SCA clarified

on what grounds a CCMA arbitration award may be reviewed. “In summary, the position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145 (2) (a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145 (2) (a) (ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable”.

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In the Herholdt case the court also held that where a commissioner fails to have regard to material facts, this will constitute a gross irregularity in the conduct of the arbitration proceedings because the commissioner would have unreasonably failed to perform his or her mandate and thereby have prevented the aggrieved party from having its case fully and fairly determined.

31.1.4 In National Union of Mineworkers & another v Samancor Ltd (Tubatse Ferrochrome)

and others 6 (2011) 32 ILJ 1618 (SCA) it was held that even if the review court believes the award to be wrong there are limited grounds upon which it is entitled to interfere. Section 145 of the LRA permits the Labour Court to set aside an award for one or other defect stated in section 145(2). In Sidumo it was recognized that an award may also be set aside if it is one that „a reasonable decision-maker could not reach.

31.1.5 In Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others[2014] 1 BLLR 20 (LAC) the Court held that the proper test for review was to ask whether a Commissioner applied his mind to the issues and granted the parties a fair hearing. If he had not, then the question to be asked is whether the outcome was one that a reasonable commissioner might have reached (the Sidumo test).

The overall test for review is “reasonableness” as enunciated in Sidumo and another v Rustenburg Platinum Mines Ltd and others [2007] 12 BLLR 1097 (CC), but awards rendered by the CCMA can still be challenged if commissioners fail to have regard to material facts. As such it was the duty of the review court to establish whether the Commissioner considered the principal issue, evaluated the facts and came to a reasonable decision. [See in this regard the finding in Derivo (Pty) Ltd v Commissioner for conciliation Mediation and Arbitration and others [2014] 10 BLLR 1000 (LC)]

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Having regard to the Goldfields case above commissioners must always ask themselves the under mentioned questions posed in that case when arbitrating – “The questions to ask are:

(i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator adopt give the parties a full opportunity to have their say in respect of the dispute?

(ii) Did the arbitrator identify the dispute he was required to arbitrate (this may in certain cases only become clear after both parties have led their evidence)?

(iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate?

(iv) Did he or she deal with the substantial merits of the dispute? (v) Is the arbitrator‟s decision one that another decision-maker could reasonably

have arrived at based on the evidence?”

31.1.6 In Matsekoleng v Shoprite Checkers (Pty) Ltd [2013] 2 BLLR 130 (LAC) the history of the review test was considered and it was held that the test for review was whether the commissioner‟s decision was rational. However, the test was later changed to the reasonableness test – as found by the Constitutional Court in Sidumo.

31.1.7 In Public Servants’ Association obo its members v National Prosecuting Authority

and another [2012] 8 BLLR 765 (LAC) the court held [at par 27] that in the review of an award issued in terms of the LRA, and in line with the Sidumo standard of reasonableness, the essential issue is not whether the award is wrong or whether the judge holds a different view to that of the arbitrator, but whether the award is reasonable and justifiable in relation to the material available to the arbitrator.

31.1.8 In Afrox Healthcare Ltd v Commission for Conciliation Mediation and Arbitration &

others [2012] 7 BLLR 649 (LAC) the Court held [at par 19] that if a commissioner does not take into account all the evidence before him/her it might lead him/her to an unreasonable award.

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32 DEMARCATIONS 32.1 RELEVANT CONSIDERATION 32.1.1 In Coin Security (Pty) Ltd v CCMA & others [2005] 7 BLLR 672 (LC) the relevant

considerations in determining whether employees and their employer are engaged in a particular industry were summarized after a commissioner made a finding that the applicant‟s assets-in-transit (“AIT”) placed it under the jurisdiction of the NBCRFLI and as such the applicant is bound by the Collective Agreements of the NBCRFLI.

FACTORS TO CONSIDER IN DEMARCATION DISPUTES

The character of an industry is determined, not by the kind of occupation of the employees engaged in the employer‟s business, but by the nature of the enterprise in which employees and their employer are associated for a common purpose. Once the character of the industry is determined, all the employees are engaged in that industry. The precise work that each employee does is not significant;

It is possible for the same employer to be engaged in two or more industries at the same time and for the employer to be an employer in each one. The question is one of fact and where it arises each of the enterprises is to be treated as separate from the other;

The two or more industries may be utterly distinct or the one may be ancillary to the other. Where the one industry is ancillary to another it is a question of degree whether a person who carries on one particular industry is also carrying on another industry. It is a question whether the activities were of sufficient dimensions to justify the conclusion that the employer carries on and is associated with its employees in more than one industry;

In resolving the question of whether operations are ancillary, it should be borne in mind that “ancillary to” has a special meaning in the context of demarcation. Ancillary business operations are business operations rendering services to existing customers or clients of the main business. Whilst what is ancillary is a question of degree that is not the only enquiry. Ancillary business is also required… to support existing business within a defined customer base.

The question whether an employer is engaged in a particular trade or industry is one of fact to be decided in the light of all the circumstances and having regard to any relevant evidence.

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The method used to determine whether a class of employers is engaged in a particular industry was summarised in Greatex Knitwear (Pty) Ltd v Viljoen and others NO 1960 (3) SA 338 (T), a decision that was quoted with approval in the Coin Security and NBCRFLI case.

32.1.2 In Food & Allied Workers Union v Ferucci t/a Rosendal Poultry Farm (1992) 13 ILJ

1271 (IC) the question to be determined was whether the employer was engaged or employed workmen in the meat processing industry at the abattoir at its principal place of business or whether the slaughtering facility provided at its abattoir fell within the general ambit of its "farming operations".

The employer conducted three income-bearing activities on three separate farms: (i) an egg production operation;

(ii) a broiler rearing operation. This operation was run by a "crop sharing" arrangement with another company which took responsibility for running the whole operation in the respondent's broiler houses; and

(iii) a chicken slaughtering operation. Here, broilers received from the other company were slaughtered at the respondent's abattoir for its own benefit and more than 50% sold directly to the public. About 55% of the respondent's employees were employed at the abattoir. This farm was zoned for industrial use, was situated close to the municipal boundary and utilized the municipal water and electricity supplies.

The Court held:

The principles in Coin Security Case was applicable. From the three facilities the abattoir operation was found not to be a true

farming operation per se and when viewed in isolation resembled the characteristics of the meat industry.

32.2 METHOD TO BE USED 32.2.1 CONSULTING NEDLAC In terms of section 62 (9) of the LRA a commissioner must consult NEDLAC before making

a demarcation award. IMPORTANCE AND RELEVANCE OF NEDLAC’S IMPUTS

32.2.2 In South African Municipal Workers Union v Syntell (Pty) Ltd & Others [2013] 2 BLLR 207 (LC) NEDLAC commented on a provisional ruling issued by a commissioner in a demarcation dispute. They did not share the commissioner‟s view and the commissioner elected to amend the award accordingly. The union thereafter took the matter on review

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and contended that the commissioner had perpetrated a gross irregularity by deferring to NEDLAC‟s view. The Court held: 1. In demarcation disputes the character of an industry (or “sector” and “area”) is

determined by the nature of the enterprise in which both employer and employees are associated for a common purpose. The precise work that each employee is involved in is not significant.

2. After consulting NEDLAC a Commissioner may change the award without giving

the parties a further hearing to deal with NEDLAC‟s views.

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33 COLLECTIVE AGREEMENTS 33.1 BINDING POWERS OF UNIONS 33.1.1 The authority of the unions to represent is set out in section 200 (1) of the LRA and

provides as follows:

“A registered trade union…may act in any one or more of the following capacities in any dispute to which any of its members is a party:-

(a) in its own interest; (b) on behalf of its members; (c) in the interest of any of its members.”

33.1.2 In terms of section 23 (1) (d) of the LRA a collective agreement is even binding on

employees who are not members of a trade union. That is the case if

the employees are identified in the agreement; the agreement expressly bind the employees; and the trade union has as its members the majority of the employees employed by the

employer in the workplace. 33.1.3 In Fakude & others v Kwikot (Pty) Ltd (2013) 34 ILJ 2024 (LC) it was held that trade

unions have the power and authority to take decisions to settle a dispute in the interest of its members. In particular to settle in the interest of the majority, although at the time, to the detriment of the minority of its members without necessarily having obtained members‟ consent.

The principle has at its base majoritarianism and freedom of association. The decision taken cannot be vitiated by the fact that the decision was taken without proper regard to the interest of the minority of members. Members affected by a decision taken by a trade union without their consent are bound by such decision and are unable as a matter of principle to withdraw from such agreement.

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34 DISCRIMINATION

34.1 WHAT IS UNFAIR DISCRIMINATION

34.1.1 In Harsken v Lane NO and Others 1997 (11) BCLR 1489 (CC) the Court held any

challenge regarding discrimination should be dealt with in two stages. The first was to determine whether the impugned provision differentiates between people or categories of people and if it does, the second was to determine if the differentiation was justified. In determining whether the discrimination provision has negatively impacted on the complainant the court held that the following factors should be looked at. The position of the complainants in the society and whether they have suffered

from the patterns of disadvantage; The nature of the provision or power and the purpose sought to be achieved by it;

and The extent to which the discrimination has affected the rights or interests of

complainants and whether it led to the impairment of their fundamental human dignity.

Once the discrimination is held to be unfair, then the court will proceed to the final leg of the enquiry to determine whether the discrimination is justified by the limitation clause of the Constitution.

34.1.2 In HOSPERSA obo Venter v SA Nursing Council (2006) 6 BLLR 558 (LC) the Court in applying Article 1 of the International Labour Organisation Convention (No 111) held that for the purpose of section 6(1) of the EEA, discrimination should be interpreted as any distinction, exclusion or preference which has an effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

34.1.3 In Prinsloo v Van der Linde and Another (1997) 3 SA 1012 (CC) it was held that given the history of this country we are of the view that “discrimination” has acquired a pejorative meaning relating to the unequal treatment of people based on attributes and characteristics attaching to them…..Unfair discrimination when used in this second form in section 8(2), in the context of section 8 as a whole, principally means treating persons differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in dignity”.

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34.2 GROUNDS FOR DISCRIMINATION

34.2.1 In Kadiaka v Amalgamated Beverage Industries (1999) 20 ILJ 373 (LC) the court distinguished the listed grounds from what is termed “the general or primary ground” of unfair discrimination, (referred to in the Employment Equity Amendment Act 47 of 2013 as arbitrary grounds). In this case the court dismissed a claim by a former employee of New Age Beverages who alleged unfair discrimination on the basis that he was refused employment on the basis that he worked for a rival company. The court found that the discrimination against the Applicant was not done on any of the specified grounds. It defined an arbitrary ground as a ground which is capricious or proceeding merely from will and not based on reason or principle. However, if there is a reason, the discrimination may be arbitrary if the reason is not a commercial reason of sufficient magnitude that it outweighs the rights of the job seeker and is not morally offensive.

34.2.2 In Zabala v Gold Reef City (2009)1 BLLR 94 (LC) the Labour Court accepted that

disapproval of extra-marital affairs is a belief and discrimination on this basis would amount to discrimination on listed grounds.

34.2.3 In Wallace v Du Toit (2006)8 BLLR 757 (LC) at par 19 it was held that the dismissal of a

pregnant employee on assumption that she would be unable to continue to fulfil her job amounted to unfair discrimination in terms of section 6(1).

34.2.4 In Association of Professional Teachers v Minister of Education 91995) 9 BLLR (IC)

at 59 the court distinguished between the two terms “sex” and “gender”. It held that sex refers to the biological differences between men and women, whereas gender encompasses social and cultural evaluation.

34.2.5 In SATAWU on behalf of Dlamini and Transnet Freight Rail (2009) 30 ILJ 1692 (LAC)

it was found that circulating an e-mail message that could be construed as being critical of affirmative action did not amount to unfair discrimination on the grounds of race against a black employee who found the message offensive.

34.2.6 In IMATU & another v City of Cape Town (20050 11 BLLR 1084 (LC) at par 92 the

Labour Court ruled that Type 1 diabetes is an “analogous” ground to the listed grounds of disability, HIV status and, given its genetic origin, perhaps even birth.

34.2.7 In Harmse v City of Cape Town (2003) 6 BLLR 557 (LC) 16-18 the court held that a

distinction between direct and indirect discrimination is not so fundamental that it is not possible for the Respondent to reply meaningfully to a claim without knowing whether direct or indirect discrimination is being relied on. Waglay J (as he then was) found that failure by an applicant to specify whether discrimination is direct or indirect does not render a claim expiable.

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34.3 EQUAL PAY FOR WORK OF EQUAL VALUE

34.3.1 In Mangena & Others v Fila South Africa (Pty) Ltd & Others (2009) 12 BLLR 1224 (LC)

the applicant referred a claim of discrimination on remuneration based on race. The court found that there was no evidence on which to establish the relative value that should be accorded to the work performed by the applicant and the comparator. It was explained that “equal work” does not necessarily mean that that the two jobs must be identical. It is sufficient that the work is similar in nature where any differences are infrequent or of negligible significance in relation to the work as a whole”. Van Niekerk J further noted that “work of equal value”, means jobs, “while different, are of equal value having regard to the required degree of skill, physical and mental effort, responsibility and other relevant factors.” It was further held that this Court has no expertise in job grading or the allocation of relative value to particular occupations of functions. An applicant claiming equal pay for work of equal value must lay a proper factual foundation that would enable the Court to make an assessment, as best as it can, on what value should be attributed to the work in question and the take associated with it. This factual foundation, as the court has indicated above include factors such as skill, effort, responsibility and the like. In the present case, in the absence of sufficient evidence to establish even remotely that the work performed by (the two employees) was of equal value, the basis of the applicant‟s alternative claim is simply non-existent.

34.3.2 In Ntai & Others v South African Breweries Ltd (2001)2 BLLR 186 (LC) it was held that a mere differentiation in pay between employees who do similar work or work of equal value does not mean, in itself, that an act of discrimination is being perpetrated. It is only when such discrimination is based on or linked to unacceptable ground that it becomes discrimination.

34.3.3 In TGWU & another v Bayete Security Holdings (1999)4 BLLR 401 (LC) the applicant

showed only that “he, a black, was earning R1 500 and that Louw, a white, was earning R4 500. The applicant did not show that work Louw performed, what his educational qualifications or experience were, for whom Louw had previously worked and for how long. The applicant conceded that Louw was a designated manager and he was not”. It was on that basis that the court found that he was not discriminated against.

34.4 Sexual Harassment

34.4.1 In Ntsabo V Real Security CC (2004) 1 BLLR 58 (LC) the Applicant referred the case to the Labour Court claiming that her superior harassed her sexually by inter alia simulating sexual intercourse with her which resulted in her superior ejaculating on her dress. She claimed patrimonial and non- patrimonial damages in terms of the EEA. Her brother reported the incident shortly thereafter but nothing was done by the employer to address

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the issue until the applicant resigned. It was held that the employer discriminated against the applicant by failing to take any action with regards to the sexual harassment complaint. It was further held that the definition of sexual harassment in the Code does not quite correspond with that in the EEA and that, while the difference is not significant, the latter definition must prevail in the event of conflict.

34.4.2 In Nicorique Francoise Bandat v De Kock and Another (JS 832/2013) [2014]

ZALACJHB 342 (2 September 2014) the court held that in order for the applicant to show that she has been discriminated against in the form of sexual harassment, she must show the kind of conduct that would be considered to be sexually harassing exists. If such kind of conduct is shown to exist, the Applicant must then show that it is unwelcome. In order to determine whether the conduct was unwelcome, the dynamic of the work and personal relationship between the applicant and the first respondent must be considered. It must also be considered whether the applicant complained of the conduct. If not, the Applicant must give reasonable and plausible explanation for not doing so. Finally, to hold the employer vicariously liable for the conduct of the perpetrator, the Applicant would also have to show that the provisions of section 60 of the EEA have been complied with.

34.4.3 In Potgieter v National Commissioner of the South African Police Service (2009) 2

BLLR 144 (LC) Ms Potgieter reported a case of sexual harassment after she was kissed by a male police officer. The offending officer was fined, but Potgieter resigned, claiming that she has suffered post-traumatic stress as a result of the incident and the manner in which it was handled. The question before the court was whether the employer had done enough to escape liability under EEA. The court noted that the offender had been disciplined and warned, and held that it was not its task to judge whether the sanction was too lenient or not. Therefore the employer could not be held liable for harassment under the circumstances.

34.4.4 In Hapwood v Spanjaard Ltd (1996) 2 BLLR 187 (IC) the court found that to ask a lady

for a drink, in absence of any details or evidence of circumstances in itself would not amount to sexual advances or harassment.

34.5 MEDICAL TESTING

34.5.1 In Hoffmann v South African Airways (2000) 12 BLLR 1365, the Constitutional Court was requested to express an opinion on SAA‟s policy of testing Applicants for employment for HIV/AIDS status and refusing employment if the infection has progressed to such stage that the person had become unsuitable for employment as a cabin attendant. The court declined to deal with the matter and the held that the Labour court had jurisdiction to deal with issues relating to testing as they fall under labour and employment issues.

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34.5.2 In Irvin v Johnson Ltd v Trawler & Line Fishing Union & Others (2008) 4 BLLR 379 (LC) Rodgers AJ held that the purpose of section 7 is to prevent unfair discrimination against an employee by reason of the latter‟s medical condition. It was further held that the purpose of medical testing is to ascertain whether an employee has any medical condition.

34.5.3 In Joy Mining Machinery a division of Harnischfeger (South Africa) (Pty) Limited v

National Union of Metal Workers of South Africa (NUMSA) and Others (J 158/02) [2002] ZALC 7 (31 January 2002) the Labour Court considered the requirements for an employee to be tested for HIV/AIDS. It was held that the Guidelines contained in the Code of Good Practice are not binding on the court, the HIV testing was authorized in the employer‟s workforce on the basis, inter alia, that it be voluntary, anonymous and is intended solely to establish the incidence of HIV in order to develop an HIV/AIDS prevention strategy.

34.6 WHEN TO REFER THE DISPUTE 34.6.1 In SATAWU obo Members v South African Airways (Pty) Ltd and Others (JA 54/13)

[2014] ZALAC 40 (14 August 2014) the trade union had referred a case of unfair discrimination to the Commission for conciliation which was dismissed by Commissioner due to non-appearance of the appellant. Soon thereafter, the appellant successfully instituted rescission proceedings against the dismissal of the referral and referred the matter to arbitration. In arbitration, an out of jurisdiction ruling was issued. The appellant referred the dispute to the Labour Court and applied for condonation which was dismissed by the court. On appeal the appellant contended that sec 10 of EEA does not prescribe a time period and that, accordingly, referrals of such claims to the Labour Court are to be done within a reasonable time. The Labour Appeal court however confirmed the judgment of NEHAWU obo Mofokeng v Charlotte Theron Children’s Home and reiterated that 90 day time limit applies. See the Nehawu obo Mofokeng judgment below.

34.6.2 In Siegelaar v Minister of Safety & Security (2004) 11 BLLR 1155 (LC) the court wrongly found that the referral must take place within a reasonable period. Supported by Masango v Liberty Group Limited (2012) 3 BLLR 3003 (LC).

34.6.3 In NEHAWU obo Mofokeng v Charlotte Theron Children’s Home (2004) 10 BLLR 979

(LAC) the court accepted that, in terms of section 10(7), the 90 day time limit applicable to arbitration referrals laid down by section 136(1) of the LRA is also applicable to the referral of disputes in terms of section10 of the EEA.

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34.7 UNFAIR DISCRIMINATION DEFENSES

Affirmative Action Measures 34.7.1 In South African Police Service v Solidarity obo Barnard and another [2014] JOL

32236 (CC) Captain Barnard referred a case of unfair discrimination based on race. She applied for a position of superintendent twice and on both occasions, despite being recommended as the best candidate each time, she was not appointed based on the reason that she belongs to a designated group that is over represented at the level she applied for in terms of the employment equity plan. The Supreme Court of Appeal had upheld the judgment in favour of Barnard which ordered her promotion to Lieutenant-Colonel rank. All eleven judges of the Constitutional Court agreed that the judgment of the court a quo was wrong for different reasons. Moseneke J held that the Constitution has a transformative mission which enjoys us to take active steps to achieve substantive equality particularly for those who were disadvantaged by past discrimination. The equity plan of SAPS was viewed as a restitutionary measure envisaged by the Constitution and the EEA. To be fair, restitutionary measure must pass a threefold test; It must target a class of people that has been susceptible to unfair discrimination; It must be designed to protect or advance those classes of people; and It must promote the achievement of equality

34.7.2 In Minister of Finance v & another v Van Heerden (2004) 12 BLLR 1181 (CC) at par 30

the Constitutional Court ruled that affirmative action does not constitute and exception to the prohibition of unfair discrimination but is “integral to reach of our equality protection” in that it “both contribute to the constitutional goal of achieving equality to ensure “equal enjoyment of all rights”.

34.7.3 In Abbot v Bargaining Council for the Motor Industry (Western Cape) (1999) 2 BLLR

115 (LC) it was held that affirmative action is a “shield” or defense for an employer rather than a “sword for a disadvantaged person”. It does not confer any right to be employed on an applicant for employment who has no existing contractual relationship with the employer.

34.7.4 In Department of Finance v CCMA & others (2003) 9 BLLR 865 (LC) the applicant alleged that the respondent had breached its own transformation policy by failing to appoint her. The court found that the dispute essentially related to promotion and, even if questions of race and gender arose “peripherally”, the CCMA had jurisdiction to arbitrate it as an unfair labour practice dispute.

Inherent requirements of a job

34.7.5 In Woolworths (Pty) Ltd v Whitehead (2000) 6 BLLR 6402 (LAC) Ms Whitehead had

applied for a permanent position which she was not offered on the basis of her pregnancy. She was instead offered another fixed term contract position. The Labour Court had found that the employer committed an unfair labour practice which constituted unfair

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discrimination on grounds of sex. In making its decision Waglay J (as he then was) found that “an inherent requirement of the particular job” implies that the job must have “some indispensable attribute” which is “so inherent that if not met an applicant would simply not qualify for the post. Uninterrupted job continuity, it was held, cannot be an inherent requirement because it can never be guaranteed. The Labour Appeal Court arrived at the similar conclusion where the question arose whether uninterrupted continuity of employment was an “inherent requirement” of the job in question, justifying refusal to employ the candidate as a result of her pregnancy. Conradie JA held that the employer failed to demonstrate that the continuity requirement was operationally so important that it would have been unreasonable to expect of the employer to employ the employee. Zondo JP found that the appellant‟s absence on maternity leave “would cause the applicant no more than some inconvenience and some disruption” which was itself insufficient to justify not appointing the appellant.

34.7.6 In Association of Professional Teachers v Minister of Education (1995) BLLR 29 (IC)

at 60 it was held that in the case of sex, “differentiation based on inherent requirements of a particular job should only be allowed in very limited circumstances and should not be allowed in circumstances where the decision to differentiate is based on subconscious (or worse a conscious) perception that one sex is superior to the other” nor where it is based on stereotyped notion about women.

34.7.7 In Lagadien v University of Cape Town (2001) 1 BLLR 76 (IC) at pars 17-19 Jammy AJ

considered that the ability to work with the academic sector and support departments to allow students and staff with disabilities to reach their full potential could legitimately be described as an “indispensable requirement” of the job in question provided as a basis for justifiable discrimination within the ambit of section 6(2) (b) of the Employment Equity Act.

34.7.8 In IMATU v City of Cape Town (2005) 11 BLLR 1084 (LC) Murphy AJ found that insulin

dependent diabetes did not justify the absolute exclusion of employees from the position of firefighter by reason of the inherent requirement of a job. Given the degree of the risk involved, it was held, a policy of individual assessment rather than a blanket ban was justified.

34.7.9 In Matjabeng Municipality v Mothupi NO (2011) 32 ILJ 2154 (LC) it was held that where

the employer raises the defense of an inherent requirement of a job in response to a claim of unfair discrimination on an unlisted ground, this does not give rise to an onus to prove that such an inherent requirement of a job is unfair. The onus lies with the complainant to show that the said discrimination on the basis of lack of experience is unfair and not the other way.

34.8 Burden of proof

34.8.1 In Prinsloo v Van der Linde and Another (1997) 3 SA 1012 (CC) the Constitutional Court held that there are two categories of discrimination. The first category consists of fourteen specified grounds and the second category is based on unspecified grounds. If

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the differentiation was on the basis specified grounds, there is a presumption in favour of unfairness.

34.8.2 In Ntai & Others v South African Breweries Ltd (2001)2 BLLR 186 (LC), the court

acknowledged the difficulties facing a claimant in these circumstances and expressed the view that a claimant was required only to establish a prima face case of discrimination, calling on the alleged perpetrator then to justify its actions. The court reaffirmed that a mere allegation of discrimination will not suffice to establish a prima facie case.

34.9 Remedies 34.9.1 In South African Airways (Pty) Ltd v V and another (CA9/13, CA420/2006) [2014]

ZALAC 27; [2014] 8 BLLR 748 (LAC) the court made a distinction between damages and compensation. The union brought a claim of unfair discrimination based on age on behalf of the employee. The unfairness of the discrimination was based on a collective agreement reducing the employees‟ salary over the age of 60. The court a quo had awarded R 50 000 for solatium and compensation over R 1.4 million contrary to the Applicant‟s claim of R 100 000.00. The court noted that the judge as in other decisions used the terms compensation and damages interchangeably which created a confusion. It deviated from the literal meaning of both terms and followed the Roman law application of the terms. In the present case the court interpreted the terms purposefully and held that compensation refers to the award for non-patrimonial loss such as injured feelings on the basis that the monetary award under this head cannot restore the victim to the position he or she was in before discrimination, but it was a solatium. Damages on the other hand was viewed as an actual or potential monetary loss or patrimonial loss with a purpose of placing the claimant in the financial position he or she would have been had the unfair discrimination not occurred. The court found that the compensation ordered by the court a quo was grossly excessive based on three reasons: It exceeded what the Respondent claimed, It beard no reasonable relationship at the injury and humiliation that the employee

testified that he felt and other factors the court a quo mentioned; and It was also inconsistent and far in excess of amounts awarded in similar cases.

34.9.2 In Bedderson v Sparrow Schools Education Trust (2010) 4 BLLR 363 (LC) the court

ordered an elderly teacher who was dismissed after the employer unilaterally introduced a new retirement age compensation to the amount of R42 000.00(six months‟ salary). The court was sympathetic with the employer as it was a non-profit making organisation that was involved with children from deprived backgrounds and who had learning problems and the fact the discrimination was found not to be mala fide. No order for damages was done as the employee did not prove any claim for damages.

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34.9.3 In Hoffmann v South African Airways (2000) 12 BLLR 1365 the Constitutional Court defined “appropriate relief” as that would be “just and equitable”. It was held that there should be a balancing process setting out “first to address the wrong occasioned by the infringement of the constitutional right, secondly to deter future violations, thirdly, to make an order that can be complied with; and fourthly of fairness to all who might be affected by the relief. Given that the Applicant had been wrongly denied employment purely on the basis of the HIV status, it was held that an order of “instatement” (i.e. requiring the employer to employ the employee) was appropriate. Ngcobo J held that instatement “should be denied only in circumstances where considerations of fairness and justice, for example, dictate otherwise” or “where it will not be practical to give effect to it”. The argument that instatement would open the floodgates for similar claims was rejected. He further what an appropriate relief would be in this case and held that it “cannot depend on other cases that may or may not be instituted. What constitutes an appropriate relief depends on the fact of each case. The relief to be granted will have to be determined in the light of their facts.”

34.10 Retrospective application of the law

34.10.1 In Nicorique Francoise Bandat v De Kock and another (JS 832/2013) [2014]

ZALACJHB 342 (2 September 2014) the Applicant pursued two disputes regarding automatically unfair dismissal and discrimination, respectively at the Labour Court. The Applicant‟s second claim related to the allegations of sexual harassment and she sought damages of R100 000 in terms of Section 50 of the Employment Equity Act. The case was heard after the amendments came into operation, on 13, 14 and 15 August 2014. The court found that the Employment Equity Amendment Act cannot apply retrospectively.

34.10.2 In Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National Transport Commission and Others 1999(4) SA 1(SCA) held as follows:

“In this first type of case, it has usually been held that the new procedure applies to any action instituted or application initiated after the date on which the amending statute takes effect unless a contrary intention appears from legislation. The ratio of this rule is understandable. By the time the action is instituted or application initiated, the old procedure is not part of the law any more… What is the correct approach in cases such as the present, where action was instituted or the application was initiated before amending legislation came to being? The rule is that unless the contrary intention appears from the amending legislation, the existing (old) procedure remains intact.”

34.10.3 In Bellais v Hodnett and another 1978 (1) SA 1109 (A) at 1148F the court held that:

“There is a general presumption against the statute being construed as having retroactive effect and even where a statutory provision is expressly stated to be retrospective in its operation it is accepted rule that, in the absence of a contrary intention appearing from the

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statute, it is not treated as affecting completed transactions and matters which are subject of pending litigation”

34.10.4 In Fouldien and Others v House of Trucks (Pty) Ltd (2002) 23 ILJ 2259 (LC) at para 9

where it was held that: “The rules of interpretation of statutes regarding the operation, i.e. retrospectively or prospectively of amendments of statutes, have been crystalized. The rules which are of particular importance to this matter, may be summarized as follows: 1. No statute is to be construed as having retrospective operation. 2. The presumption against retrospectively addresses „elementary considerations of

fairness which dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly‟.

3. Even a statute, which is expressly stated to be retrospective, is not to be treated as affecting matters which are subject to pending litigation, save in the clear indication to the contrary.

4. A distinction is made between true retrospectively, i.e. where an Act provides that from the past date, the new Act or amendment is deemed to have been in operation and cases where the question is merely whether the new statute or an amendment of a statute interferes with or is applicable to existing rights…

5. Where the courts left in doubt it should favour the approach to the law which is conservative.

6. The distinction between the amending statutes affecting substantive rights and those affecting procedural is no longer regarded as decisive.

7. Where the existing procedure is altered after the action or claim was instituted, unless a contrary intention appears, the old procedure appears.

8. Considerations of fairness and equity are to be taken into account in considering whether amending legislation is applicable to pending actions.

34.11 CONCURRENT CLAIMS

34.11.1 In Ditsamai v Gauteng Shared Services Centre (2004) 5 BLLR 456 (LC) it was held that an employee who had already brought a successful claim of unfair dismissal in terms of the LRA was not precluded from bringing a claim of unfair discrimination in terms of the Employment Equity Act based on the same facts.

34.11.2 Similarly in Orr v University of South Africa (2004) 9 BLLR 954 (LC) it was held that the

employer has a case to answer in terms of section 6 of the EEA despite the fact that the Applicant had already recovered damages in the High Court based on indecent assault, injuiria and defamation which she suffered at the chairperson of the Respondent‟s Council. A special plea of res judicata could therefore not succeed and was found to be expiable.

CASE LAW FOR COMMISSIONERS · December 2010) and Communication Workers Union obo Segakweng v South...

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Transcript of CASE LAW FOR COMMISSIONERS · December 2010) and Communication Workers Union obo Segakweng v South...