Case Law Updates March 2014

SASLAW SEMINAR
27 March 2014
Name of presenter: Professor Alan Rycroft
Title of Presentation: Case Law Update March 2014
Toyota S.A. Motors (Pty) Ltd v CCMA and
Others (D 317/10, D276/10) [2012] ZALCD 7)
It will be fair for an employer to conduct a second enquiry
where a line manager, without authorisation, deviates from
the ordinary sanction and deprives the employer of the
opportunity to act consistently.
Tubatse Chrome (Pty) Ltd v Metal and
Engineering Industries Bargaining Council and
Others (JR 2679/10) [2013] ZALCJHB 16 (8
February 2013)
It is not unfair if an employer’s disciplinary code provides for
termination at the end of the fifth day of absence.
This represents a rational response by an employer to an
extended period of unexplained unauthorised absence by an
employee, provided the employer provides the employee with
a fair opportunity to explain her unauthorised absence should
she return to work, enabling the dismissal to be reversed
where an acceptable explanation for absence is provided.
NUM & others v Martin & East (Pty) Ltd (2013)
34 ILJ 978 (LC)
If there is no statutory or contractual prohibition, fair
suspension without pay may be considered as an alternative
to dismissal of an employee.
Suspension without pay as a form of disciplinary penalty is not
impermissible and does not contravene the BCEA. The
provision prohibiting deductions from remuneration without
consent is premised on remuneration or wages becoming due
after a tender of services or actual performance by an
employee.
Farmers Meat Supply v Mgwenya NO and
Others (JR 248/2011) [2013] ZALCJHB 28 (12
March 2013)
If an employer relies on one lawful reason for dismissal, the
adjudicator is not entitled to decide unilaterally that the
employer ought to have relied on a different lawful ground for
dismissal and then evaluate the fairness of the dismissal as if
the employer had chosen that alternative justification.
An arbitrator must evaluate the fairness of a dismissal with
reference to the actual ground relied on by the employer.
Banda v General Public Service Sectoral Bargaining
Council and Others (JR3273/2009) [2014] ZALCJHB 46
(26 February 2014)
An employee carries the evidentiary burden to at least
establish a prima facie case of inconsistency before the
employer is compelled to supply an answer of a
defense.
An inconsistency challenge will fail where the employer
is able to differentiate between employees who have
committed similar transgressions on the basis of
differences in personal circumstances, the severity of
the misconduct or on the basis of other material
factors.
An employer is not required in the name of consistency
to repeat a previous decision made in error or one
which is patently wrong.
National Union of Public Service and Allied Workers
obo Mani and others v National Lotteries Board
(576/12) (2013) ZASCA 63
A threat to wilfully defy an employer and its CEO
constitutes insubordination. Neither the Constitution
nor the LRA protects employees from dismissal for
insubordination. Trade union activities which constitute
unlawful acts of insubordination are not protected.
There is no inconsistency in giving, on the one hand,
written warnings to those who acknowledged their
wrongdoing and, on the other, dismissing those who
did not.
Palace Engineering (Pty) Ltd v Ngcobo and Others
(JA20/2012) [2014] LAC (date of judgment 5 February)
Even though less onerous reasons can be accepted for
dismissing a probationary employee, the fairness of
such reasons still needs to be tested against the
stipulations of item 8(1)(a)-(h) of the Code of Good
Practice. The onus rests on the employer to prove that
the dismissal is substantively fair.
Although a senior employee is expected to be able to
assess whether s/he is performing according to
standard, an employer is not absolved from providing
such an employee with resources that are essential for
the achievement of the required standard or set
targets.
Protech Khuthele (Pty) Ltd and Another v
Wabile NO and Others (JR 179/11) [2012]
ZALCJHB 168 (12 October 2012)
It is inevitable that commissioners (in the CCMA or
bargaining councils) who have the necessary
knowledge and experience of labour law to qualify for
appointment as commissioners would have their
foundational experiences informed either from a trade
union or a management perspective.
Prior association with an institution cannot form the
basis of a reasonable apprehension of bias unless the
subject matter of the litigation arises from the prior
association or activities.
Sisonke Partnership t/a International Healthcare
Distribution v National Bargaining Council for the
Chemical Industry and Others (JA 51/10) [2013] ZALAC
16 (9 July 2013)
There is no absolute prohibition against the admission
of hearsay evidence by a Commissioner in arbitration
proceedings, which are meant to be swift and informal.
BUT
Shoprite Checkers v Commission for Conciliation
Mediation and Arbitration and Others (JR2259/11)
[2014] ZALCJHB 36 (13 February 2014)
For hearsay evidence to be admitted an employer must
explain and provide a reasonable justification for the
absence of a relevant witness
Where the employee denies guilt, the employer should
provide any corroborating evidence on which the
hearsay evidence was premised.
NUMSA and Another v GFD Motors (Pty) Ltd
and Others (C 358/07) [2013] ZALCCT 25 (24
July 2013)
An arbitrator is not obliged to order either
reinstatement or compensation even though unfair
dismissal is found, as long as there is evidence that a
continued employment relationship would be
intolerable.
CCMA v Law Society, Northern Provinces
(005/13) [2013] ZASCA 118 (20 September 2013)
There is no unqualified constitutional right to legal
representation before administrative tribunals. The
CCMA rules and other provisions of the LRA are
sufficiently flexible to allow for legal representation in
deserving cases.
Van Alphen v Rheinmetall Denel Munition (Pty)
Ltd (C 418/2013) [2013] ZALCCT 21 (21 June
2013)
For a disclosure to qualify as a protected disclosure in terms
of the Protected Disclosures Act,
(1) the disclosure must be more than an expression of a
subjectively held opinion or an accusation; it must be a
disclosure of information;
(2) The disclosure must clearly indicate a breach of legal
obligations and possibly criminal conduct on the part of the
employer;
(3) Disclosure about disagreement with the employer’s policy
is not disclosure of an impropriety.
PE Pack 4100 CC v Sanders and Others (PA
08/10) [2013] ZALAC 1 (22 January 2013)
Upon the termination of a franchise agreement, the
joint venture between franchisor and franchisee
dissolves, with the franchisor retaining the assets. The
franchisee’s right to carry on the franchise business
comes to an end.
The granting of a fresh franchise to another party is not
a transfer in terms of s 197 of the LRA but a new joint
venture business between the franchisor and the new
franchisee.
Pikitup (Soc) Ltd v SAMWU obo Members and
Others (J164/13) [2013] ZALCJHB 192 (13 August
2013)
A matter of mutual interest is one in respect of which
both employer and employee, in their capacities as
such, have an interest. Whether an employer and
employee have such an interest in a given case is a
matter of fact to be determined with reference to all
the evidence.
Where an employer intends to introducing a new
system to provide a safe working environment for the
employees this is a matter in which the employees have
an interest.
Valuline & others v Minister of Labour & others
HC (KZN) case no. 5642/2011 Date of judgment
13/3/2013
If a request is made to the Minister of Labour to extend
a bargaining council agreement to cover non parties to
the council under section 32(2) of the LRA, the Minister
has no discretion and must extend the agreement, if
satisfied:
that a majority of employees who fall within the scope
of the agreement are members of the trade unions that
are parties to the council;
and are employed by employers that are members of
employers' organizations that are parties to the council.
SAMWU and Others v City of Johannesburg
Metropolitan Municipality (JA 48/10) [2013] ZALAC 4
(21 February 2013)
A written agreement that is clear and unambiguous
stands as an agreement cast in stone which can neither
be moved nor can any inroads made into it.
If one party wants a settlement agreement to be
rectified it has a duty to satisfy the Court by presenting
evidence that can demonstrate in clear and satisfactory
manner the contentions made by them to support their
entitlement to rectification.
Numsa and Others v CBI Electric African Cables
(JA 51/11) [2013] ZALAC 25 (11 October 2013)
In the context of an unprotected strike, it will
constitute procedural unfairness if an employer issues
an ultimatum prior to discussion with the trade union
and / or does not afford the affected employees an
opportunity to be heard before a decision to dismiss
them is taken.
SACTWU and Others v Yarntex (Pty) Ltd t/a
Bertrand Group (PA07/10) [2013] ZALAC 6 (28
February 2013)
Where dismissal of strikers follows ultimatums which
provide strikers with sufficient time to reflect on their
conduct and are ignored, the dismissals will be
procedurally fair even though the employees did not
make representations before their dismissals.
UTATU SARHWHU and Others v Autopax
Passenger Services (Soc) Ltd and Another (J
1931/2013) [2013] ZALCJHB 223 (17 September
2013)
An employer is entitled to lock-out all employees, even
those who are not in dispute with the employer, where
the dispute is about the conditions of employment of all
employees.
During the lock-out there is no obligation to pay
employees who tender their services.
In2FOOD (Pty) Ltd v FAWU, Madisha, RS and
470 others (LC Case Number: J350/13, 1 March
2013)
LC fined FAWU half a million rand for contempt of court
for not doing more to curtail a violent, unprotected
strike by its members.
‘The time has come in our labour relations history that
trade unions should be held accountable for the actions
of their members. For too long trade unions have glibly
washed their hands of the violent actions of their
members. These actions undermine the very essence of
disciplined collective bargaining and the very
substructure of our labour relations regime’.
FAWU v Ngcobo N.O. and Another (CCT 50/13)
[2013] ZACC 36 (9 October 2013)
A contract of mandate obliges a trade union to perform
its functions faithfully, honestly and with care and
diligence.
Whilst a union has the Constitutional right to determine
its own administration, this does not exempt it from
liability for responsibilities it had agreed to undertake
and then failed to honour.
The Union’s failure to lodge a Labour Court application
timeously breached its mandate with its members, and
for that breach they are entitled to compensation.
Apollo Tyres South Africa (Pty) Limited v CCMA &
Others (DA1/11) [2013] ZALAC (21 February 2013)
“Benefit” in terms of s 186 (2) means existing
advantages or privileges to which an employee is
entitled as a right (ex contractu or ex lege) or granted in
terms of a policy or practice subject to the employer’s
discretion.
Minister of Public Service and Administration and
Another v Kaylor (CA18/12) [2013] ZALAC 11 (11 June
2013)
It is not permissible in terms of the LRA for an employer
to decide to place an employee in a new post without
any meaningful consultation.
Department of Correctional Services & another v
POPCRU and Others (107/12) [2013] ZASCA 40 (28
March 2013)
A policy is not justified if it restricts a practice of
religious or cultural belief that does not affect an
employee’s ability to perform his duties, nor jeopardise
the safety of the public or other employees, nor cause
undue hardship to the employer in a practical sense.
Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and
Others (875/12) [2013] ZASCA 189 (29 November 2013)
It is not for the employer to question the employee’s
belief that harm may be caused by ancestors if the
employee fails to heed the call.
What the employer may do is in these circumstances is:
(a) check that the employee does have a sincere belief;
(b) test whether there is an ulterior motive in
requesting leave; (c) scrutinise the supporting evidence,
such as a traditional health practitioner’s certificate, and
attempt to understand it; and (d) ask the employee to
explain its meaning.
Once satisfied on these points, an employer should
attempt to accommodate a request for leave.
Janse van Vuuren v South African Airways (Pty)
Ltd and Another (2013) 34 ILJ 1749 (LC)
A collective agreement is subject to the Constitution
and the Employment Equity Act and is not exempt from
its provisions. Parties may not contract out of the
fundamental rights and protections set out in the Bill of
Rights.
Motaung v Department of Education (JS
196/2010) [2012] ZALCJHB 122; 2013 (3) SA 44
(LC) (15 October 2012)
An employer may not discriminate against an employee
who, on grounds of conscience, refuses to disregard
instructions by the employer to disregard legal
requirements or regulations.
Rand Water v Stoop & another (2013) 34 ILJ 576
(LAC)
The word “concurrent” in s77 (3) of the BCEA places the
Labour Court in exactly the same position as the High
Court with the same powers and authority in relation to
matters concerning a contract of employment.
The Labour Court has jurisdiction over any claim as
long as it involves a contract of employment. The
words “any matter” in s 77(3) are broad and the literal
interpretation does not limit the claims, in relation to a
contract of employment, to a specific category.
Damages, both liquid and illiquid, are included.
Khumalo and Another v Member of the Executive
Council for Education: KwaZulu Natal (CCT 10/13)
[2013] ZACC 49 (18 December 2013)
Where the delay in correcting an irregularity is
unreasonable and unexplained, this will not generally be
condoned, particularly where there is no wrongdoing
on the part of a person promoted irregularly.
Ethekwini Municipality v SAMWU (442/11)
[2013] ZASCA 135 (27 September 2013)
The SCA will not interfere with a decision of the Labour
Appeal Court only because it considers it to be wrong:
what is required in addition are special circumstances
that take it out of the ordinary.
Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold
Mine) v CCMA and others - (2014) 23 LAC 11.10.1
A review court must ascertain whether the arbitrator
considered the principal issue before him/her;
evaluated the facts presented at the hearing and came
to a conclusion which was reasonable to justify the
decisions he or she arrived at.
If an arbitrator commits a process-related irregularity
this is not in itself a sufficient ground for interference by
the reviewing court, particularly where the decision
reached is one that a reasonable arbitrator could reach.
Where an arbitrator mis-classifies misconduct as poor
performance, the award will only be reviewable if the
outcome is unreasonable.
Jonsson Workerwear (Pty) Ltd v Williamson
and Another (D 426/2013) [2013] ZALCD 24 (12
August 2013)
Where an employer in motion proceedings seeks to enforce a
restraint of trade agreement, it is the facts stated by the exemployee in his/her affidavit together with the admitted or
undenied facts in the ex-employer's affidavit which provide the
factual basis for the determination.
Where the denials in the ex-employee’s version are bald,
implausible, or far-fetched the court is justified in rejecting that
version.
The Labour Court has a discretion to decide whether to refer
motion proceedings to oral evidence where there is a dispute of
fact that needs to be resolved. In exercising this discretion, a
litigant applying for a matter to be referred to oral evidence should
at least advance reasonable grounds at the beginning of the
litigation to support this discretion being exercised.
NUMSA v Abancedisi Labour Services (857/12)
[2013] ZASCA 143 (30 September 2013)
A refusal to allow an employee to do the work he was
engaged to do may constitute a wrongful repudiation
and a fundamental breach of the employment contract
which vests the employee with an election to stand by
the contract or to terminate it.
Cellucity (Pty) Ltd v CWU obo Peters [2014] 2 BLLR 172
(LC) (14 November 2013)
There is a strong case on public policy grounds to find
that prescription does not apply to unfair dismissal
claims under the LRA.
BUT
Circuit Breakers Industries Ltd v NUMSA obo Hadebe and Others (JR
1958/08) [2013] ZALCJHB 286 (1 November 2013)
Where an award of compensation has been issued by the CCMA,
the award constitutes a debt for the purposes of the Prescription
Act (subject to the 3 years prescriptive period).
Where an award of reinstatement is granted by the CCMA this
does not constitute a “debt” for the purpose of prescription.

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