Conditions of Employment

Agreement

Labour Law cases decided in the South African Courts (Highlights and updated 1997 to 12 2025 [copyright: Marius Scheepers/16.2.1]).

Employment and Conditions: Agreement, Conditions of employment, Contract, Constructive dismissal, Contract of employment, Employee, Employment, Labour Broker, Legal persona

Agreement

include grounds ito section 145

NOT

PA10/09

Volkswagen v Koorts

Settlement

JS644/15

Food and Allied Workers Union and Others v Amalgated Beverage Industries (Pty) Ltd (JS644/15) [2017] ZALCJHB 492 (20 April 2017)

unreasonably refusing with prejudice settlement offer equivalent to maximum compensation...applicants therefore not entitled to costs

Settlement

JR249/2015

A C and C South Africa (Pty) Ltd t/a African Camp and Catering v Nkadimeng NO and Others (JR249/2015) [2017] ZALCJHB 283 (8 August 2017)

Universal Church of the Kingdom of God v Myeni and Others (2015) 36 ILJ 2832 (LAC); [2015] 9 BLLR 918 (LAC); [2015] JOL 33521 (LAC); at para 44

It is settled law that the intention of the parties in any agreement - express or tacit - is determined from the language used by the parties in the agreement or from their conduct in relation thereto. Further, that not every agreement constitutes a contract. For a valid contract to exist, each party needs to have a serious and deliberate intention to contract or to be legally bound by the agreement, theanimus contrahendi. The parties must also be ad idem (or have the meeting of the minds) as to the terms of the agreement. Obviously, absent theanimus contrahendibetween the parties or from either of them, no contractual obligations can be said to exist and be capable of legal enforcement.

Turquand rule: Ostensible authority

JA112/2013

City of Johannesburg Metropolitan Municipality and Others v Independent Municipal and Allied Trade Union and Others (JA112/2013) [2017] ZALAC 43; (2017) 38 ILJ 2695 (LAC) (28 June 2017)

This is a principle that was developed in Royal British Bank v Turquand [1856] EngR 470; (1856) 6 E & B 327; 1843-60 ALL ER 435, which provides that persons contracting with a company and dealing in good faith may assume that acts within its constitution and powers have been properly and duly performed and are not bound to enquire whether acts of internal management had been regular- per Lord Simons in Morris v Kanssen 1946 AC 459 at 474; (1946) 1 ALL ER 586 (HL) at 592 approving the formulation of the rule in Halsburys Laws of England 2ed vol 5 432 para 698.

See NBS Bank Ltd v Cape Produce Co (Pty) Ltd and Others 2002 (1) SA 396 (SCA) para 2; Northern Metropolitan Local Council v Company Unique Finance (Pty) Ltd and Others 2012 (5) SA 323 (SCA) para 28.

ostensible authority to bind SALGA in concluding the settlement agreement it was incumbent upon IMATU to prove the following: (a) a representation in words of conduct; (b) made by SALGA that either, or any, or all of those persons had the authority in respect of the settlement, to act as they, respectively, or jointly, did; (c) a representation in a form such that SALGA should have reasonably expected that outsiders would act on the strength of it; (d) reliance by IMATU on such representation; (e) the reasonableness of such reliance; and (f) the consequent prejudice to IMATU.

[71] ...the Turquand rule finds no application.[20] The rule does not entitle a third party to assume that SALGA has in fact entered into the settlement agreement. The respondents did not show that Messrs Dlamini and/or Van Zyl had actual authority in terms of SALGAs constitution to enter into the settlement agreement.

Settlement: section 158(1A) of the LRA.

J846/2017

Imatu obo Nathan v Polokwane Local Municipality (J846/2017) [2019] ZALCJHB 290; (2020) 41 ILJ 937 (LC) (18 October 2019)

[77]       As emphasised in Fleet Africa, section 158(1A) does not require that a dispute should have been referred to a council/the CCMA or the Labour Court.

[75]       In the circumstances, the agreement reached on 24 January 2017 complied with the common law requirements of a valid contract, and I now turn to the statutory requirements to make a settlement agreement an order of this Court.

[53]       Section 158(1)(c) of the LRA provides that this Court may make a settlement agreement an order of court if certain requirements are met. These requirements are set out in section 158(1A), namely, there should be a) a written agreement, b) in settlement of a dispute, c) that a party has the right to refer to arbitration or to the Labour Court, but d) excluding disputes contemplated in sections 22(4), 74(4) or 75(7) of the LRA. Sections 22(4), 74(4) and 75(7) of the LRA deal with organizational rights disputes, disputes in essential services, and disputes in maintenance services respectively. The applicants dispute does not concern any of these categories of dispute.

Fleet Africa (Pty) Ltd v Nijs (2017) 38 1059 (LAC) at para 20.

Fleet Africa referred with approval to its decision in Universal Church of the Kingdom of God v Myeni and Others (2015) 36 ILJ 2832 (LAC) at para 44.

It is settled law that the intention of the parties in any agreement  express or tacit  is determined from the language used by the parties in the agreement or from their conduct in relation thereto. Further, not every agreement constitutes a contract. For a valid contract to exist, each party needs to have a serious and deliberate intention to contract or to be legally bound by the agreement, the animus contrahendi. The parties must also be ad idem (or have a meeting of minds) as to the terms of the agreement. Obviously, absent the animus contrahendi between the parties or from either of them, no contractual obligations can be said to exist and be capable of legal enforcement.

[56]       The statutory requirements are that the agreement a) must be in writing, b) must settle a dispute and c) this dispute must be one which a party has the right to refer to arbitration or the Labour Court (excluding organizational rights, essential services and maintenance services disputes). The requirement is not that the dispute has been referred to arbitration or the Labour Court  simply that the nature of the dispute is one which a party could refer to arbitration or to the Labour Court.

De Wet & Van Wyk Kontraktereg & Handelsreg Vyfde Uitgawe, p170.

[73]       A repudiation does not dissolve the contract. It grants the innocent party two options, namely to either accept the breach and sue for damages, or to hold the repudiator to the contract. If the innocent party rejects the repudiation and holds the repudiator to the contract, the contract and the obligations created by it remain intact.

Condition of employment

Condition of employment

free transport

were told would be provided

JS55/06

South African Municipal Workers Union v Matjhabeng Local Municipality

had been dismissed for refusing to accept the change to his terms and conditions of employment and that his dismissal was automatically unfair

J1107/00

Long v HR Connect (Pty) Ltd

Change

Such changes are justified if they are made in the course of a bona fide retrenchment exercise and as an alternative to retrenchment

D426/02

Media Workers Association of SA & Others v Independent

Change

Case law sited

SA Democratic Teachers Union v Minister of Education & others (2001) 22 ILJ 2325 (LC) and referring to ECCAWUSA & others v Shoprite Checkers t/a OK Krugersdorp (2000) 21 ILJ 1347 (LC),

D426/02

Media Workers Association of SA & Others v Independent

Unilateral change

Retrenchment

If the reason for a dismissal is to compel employees to accept a demand in respect of a matter of mutual interest between the employer and employees, such a dismissal is deemed to be automatically unfair [32] Having regard to the facts, and the circumstances, of this case, it appears that the [employer] dismissed the unions 58 members for the reason that it wanted to compel them to accept its demand for a reduction in wage levels. In the Courts view, the [employer] fell foul of s187(1)(c) of the [LRA]. Held that the employer had used outsourcing as a device, for undermining the status of the union as the exclusive recognised collective bargaining agent of its members, the dismissed employees. Concluded that the dismissal of the employees was automatically unfair

C716/00

FAWU v General Food Industries Ltd

Change

where an employer takes away a company car from an employee, which car the employee is entitled to in terms of the contract of employment, that act constitutes a repudiation of the employment contract and therefore a dispute of right. Held that the dispute in casu manifestly related to training and the employees conditions of service and was a dispute of right. Held further: There can be no doubt that, where there is a dispute of right that relates to training, it is possible to have conduct by an employer that can be described as unfair conduct or as an unfair labour practice as contemplated by item 2(1)(b). Such a dispute would be arbitrable in terms of item 3(4) of schedule 7 and the CCMA would have jurisdiction to arbitrate it if there was no council with jurisdiction to arbitrate it.

PA5/01

Maritime Industries Trade Union of South Africa & Others v Transnet Ltd & Others

Change

only one time period in s64(1)(a), namely the period of 30 days mentioned in s64(1)(a)(ii). The LC held that the issuing of a certificate is not a reference to a time period but to the happening of an event, and concluded that it was competent to order the employer to refrain from implementing the change for 30 days from the date of referral of the dispute, notwithstanding that conciliation had taken place and a certificate of outcome issued.

JA6/02

Eskom v NUMSA & Others

Leave payment

employer was not entitled to treat the employee as having forfeited his right to leave in excess of 40 days

the employer had a contractual obligation to pay the excess because in terms of the contract of employment it bore an obligation to ensure that the employee took leave as and when it became due and because it had dismissed the employee (for misconduct), thus depriving the employee of taking any leave prior to the termination of his contract

in respect of the accumulation of leave the provisions of the BCEA were more favorable to the employee than those in his contract of employment; It does not impose an obligation on the employee to take leave within six months after the end of the annual leave cycle. Leave not taken within six months is not automatically forfeited. Held further, however, that an employer can require an employee contractually to take leave in terms of s20(4) .

D849/02

Jardine v Tongaat-Hulett Sugar Ltd

Working hours

that operational requirements could not provide valid justification for effecting a reduction in working hours without the agreement of all parties. Held further that without agreement being obtained this constituted a repudiation of their terms of employment and was unlawful

JA 24/02

Magnum Security (Pty) Ltd v The Professional Transport Workers Union; Nkosi, Elphas Mlondolozi & 108 Others

Remuneration

NEMISA was in breach of the employment contract by not paying him for services duly tendered

JA 19/03

National Electronic Media Institute of South Africa v Buthelezi, Nkanyiso

Public Holidays

Sunday was public holiday. It remained a public holiday, and that the Monday succeeding was added to the list of public holidays

J1218/05

Randfontein Estates Ltd v NUM

Benefits

Transport allowance not wage increase

P206/07

Gillet Exhaust Technologie (Pty) Ltd t/a Tenneco v NUMSA & Others

Change of vested rights

No, only work practices

No strike

J2276/10

Johannesburg Metropolitan Bus Services (Pty) Ltd v SAMWU, IMATU & Others

Sick leave notice period

C9682/2010

Oasis Group Holdings (Pty) Ltd v Bardien

77(3) of the BCEA

could not be interpreted so widely as to include any matter concerning a contract of employment, which was already regulated in the LRA

J2283/07

Mohlaka v Minister of Finance & Others

77(3) of the BCEA

Other case law cited

Chirwa v Transnet Ltd and Others (2008) 2 BLLR 97 (CC)

J2283/07

Mohlaka v Minister of Finance & Others

unilaterally changed her conditions of employment.

Other case law cited

National Union of Mineworkers v Commission for Conciliation, Mediation and Arbitration and Others (2007) 28 ILJ 1614 (LC)

An inference from circumstantial evidence could be drawn only if there existed objective facts from which to infer other facts which was sought to be established; did not apply to the situation where a party brought a claim that fell under the jurisdiction of the court, lost and then wanted to rely on an alternative claim that should have been referred to the CCMA or bargaining council

D352/06

Adcan Marine v CCMA & Others

Deductions benefit

BCEA applies where no Collective agreement

C472/08

SAMWU v City of Cape Town & Others

Breach of contract; claim for damages

7 days notice- short notice.

employer as such had failed to show that the alleged loss

J1086/08

Labournet Payment Solutions (Pty) Ltd v Vosloo

change working hours

only through collective agreement

JS958/09

Lencoane & 75 Others v Vector Logistics (Pty) Ltd

s 77(3) BCEA

ordered to restore and comply with the terms

unilateral change to terms and conditions of employment

determination of their shift patterns remained within the applicants prerogative as a work practice

D68/12

Apollo Tyres SA (Pty) Ltd v NUMSA and Others

change the shift patterns, it was clear that they fell squarely within the definition of operational requirements

Severance pay

s 41 of the BCEA,

Set-off could not be equated to a prohibited deduction in terms of s 34 of the BCEA under those circumstances.

C143/2012

Rank Sharp SA (Pty) Ltd v Kleinman

due and enforceable; much less that it was liquidated in the sense that it was capable of speedy and easy proof

C143/2012

Rank Sharp SA (Pty) Ltd v Kleinman

contractual terms

s 4, 70, 77(1) BCEA

Jurisdiction

No costs orders if value = small claims court

J2218/08

Fourie v Stanford Driving School and 34 related cases

Earnings threshold

not include overtime pay

BCEA

J1523/05

Mondi Packaging (Pty) Ltd v Department of Labour & Others

Employment contract

Unilateral change to individuals contract

employer could not unilaterally implement a change to terms and conditions of employment

C1105/10

Abrahams v Drake & Scull Facilities Management (SA) (Pty) Ltd and Another

termination of service

subsequently attempting to change notice

showing no prima facie right

J905/10

De Villiers v Premier, Eastern Cape and Others

Earnings threshold

excludes overtime

JA49/08

Mondi Packaging (Pty) Ltd v Director-General: Labour & Others

deductions from his salary, in contravention of s 23 of the BasicConditions of Employment Act 75 of 1997 which allowed a maximum of 25% of an employees remuneration to be deducted. Debt had prescribed three years after it became due, s 11(d) of the Prescription Act 68 of 1969.

J1926/12

POPCRU obo Moyo v Minister of Correctional Services and Another

Benefit

S 186(2)(a) , employee, she would in accordance with Schoeman v Samsung not have the right tostrike. The notion that the benefit had to be based on an ex contractu or ex lege entitlementwould, in a case like the present, render the unfair labour practice jurisdiction sterile. Thebenefit in s 186(2)(a) of the Act meant existing advantages or privileges to which anemployee was entitled as a right or granted in terms of a policy or practice subject to theemployers discretion. In as far as Hospersa, GS4 Security and Scheepers postulated adifferent approach, they were wrong.

DA1/11

Apollo Tyres South Africa (Pty) Ltd v CCMA and Others

Transfer to new post, Impermissible to place employee in new postwithout meaningful consultation.

CA18/12

Minister for Public Service and Administration and another v Kaylor

no longer provide transport to employees and that it would no longer allow employees to leave at midday on the last Friday, not conditions of employment: they were not provided for in any contract of employment or in thecollective agreement and they were nothing more than long-standing practices.

J 920/2013

Pikitup Johannesburg (SOC) Ltd v South African Municipal Workers Union and Others

Benefit, Travel allowance falling withinextended definition of benefit.

C 546/12

South African Revenue Services v Ntshintshi

Restraint of trade

He refused to sign the restraint of trade agreement. Amounted to a fundamental change to the terms and conditions of his employment that were clearly less favourable. Dismissal was procedurally unfair and the applicant was to be paid an amount equal to 12 months.

(JS 574/2011) [2013] ZALCJHB 160

Suraci v Master Business Associates Holdings (Pty) Ltd

Transfer of employee

Minister had the power to transfer the employee in terms of s 14 of the Public Service Act and, as the executive authority, also had the power to direct the employee temporarily to perform other functions in terms of s 32 of that Act. She had suffered no reduction in salary and had not been demoted.

(J1296/13) [2013] ZALCJHB 165

Sekwele v Minister of Communications and Another

Change of

the duties of the new manager was similar to the employees duties and that by taking away duties it amounted to taking away her responsibilities which resulted in the diminution of her status.

(JR 991/12) [2013] ZALCJHB 218

Moqhaka Local Municipality v South African Local Government Bargaining Council and Others

Remuneration. Leave pay. Contrary to provisions of the BCEA that an employee entitled to accumulate leave pay for more than one leave cycle.

Jardine v Tongaat-Hulett Sugar Ltd [2003] at 7 BLLR 717 (LC) which had held that leave not taken within the six months after the end of a leave cycle was not automatically forfeited nor was any rights to payment in respect of that leave forfeited.

Jooste v Kohler Packaging Ltd (2004) 25 ILJ 121 (LC) where the court held that the pro-rated payment in respect of a current leave cycle aside, s 40 of the BCEA contemplated payment only in respect of leave immediately preceding that during which the termination took place.

(JS 633/07) [2013] ZALCJHB 291

Ludick v Rural Maintenance (Pty) Ltd

Salary deduction

Salary deductions, not entitled to rely on s 34(1)(b) and ignore s 34(1)(a) and 34(2). Purpose of provision and formalities clearly to protect employees against arbitrary conduct and to provide employers with simple and quick method of obtaining relief without resorting to litigation.

(D234-12) [2014] ZALCD 4

Padayachee v Interpak Books (Pty) Ltd

Signing of contract

Employer claiming that it had made a reasonable error in not reading the pro forma contract. The failure to check the contract also had to be seen in the context of a prior understanding. Given this context there was a duty on the applicant to mention the material amendments and the doctrine of caveat subscriptor could not assist him.

JS635/2010

Kaltwasser v Isambulela Group Administrator (Pty) Ltd

failure of an employer to comply with its disciplinary procedure

J2819/16

Motale v The Citizen 1978 (Pty) Ltd and Others (J2819/16) [2017] ZALCJHB 22; [2017] 5 BLLR 511 (LC) (27 January 2017)

[28]. There are number of judgments dealing with the failure of an employer to comply with its disciplinary procedure, specifically when the disciplinary procedures form part of the contract of employment

Ngubeni v The National Youth Development Agency and Another (2014) 35 ILJ 1356 (LC); and Solidarity and Others v South African Broadcasting Corporation 2016 (6) SA 73 (LC); (2016) 37 ILJ 2888 (LC).

the Court held that failure of an employer to comply with its disciplinary code procedure, where the disciplinary code procedure forms part of employees contract is a breach of that contract entitling the employee to relief. In both matters the court declared the decision by the employer to terminate the contract without complying with the disciplinary code to a breach of contract entitling the employees to be reinstated.

[29]. The applicants contract of employment specifically incorporates the disciplinary code and procedure and it is clear that the respondents had not complied with the disciplinary code and procedure when they terminated the applicants contract. As a result, I am satisfied that the respondents termination of the applicants contract of employment constituted a breach thereof and that the applicant is entitled to be reinstated.

[30]. Given the specific circumstances of this matter and in particular the applicants complaint regarding the failure of the respondents to conduct a disciplinary inquiry and the position he found himself in at the time of termination of his contract it is appropriate that his reinstatement be accompanied by an order directing the respondents comply with the disciplinary code and procedure, in other words in order for specific performance.

[32]. There is no reason why despite the absence of urgency and the limited relief that the applicant is entitled to that cost should not follow the result.

Deductions: Section 34 of the BCEA, procedure

JS708/14

Mpanza and Another v Minister of Justice and Constitutional Development and Correctional Services and Others (JS708/14) [2017] ZALCJHB 48; (2017) 38 ILJ 1675 (LC); [2017] 10 BLLR 1062 (LC) (31 January 2017)

In terms of section 34 (2) (b) of the BCEA the respondents had to follow a fair procedure and had to give the applicants a reasonable opportunity to show why the deductions should not be made. The applicants were given letters by Ms Phahlane who asked them to give reasons why the deductions were not to be made. They received the letters. Their testimony was that they responded to the letters. They were asked to produce proof of their submission of their responses but none was forthcoming. The probability is that the applicants failed to tender their responses.

payment of performance bonus

JS845/2014

Country Thorp v National Homebuilders Registration Council (JS845/2014) [2017] ZALCJHB 167 (6 April 2017)

Claim in contract for payment of performance bonus and golden handshake. On the facts - bonus payment discretionary, and cannot form basis of claim in contract, plaintiff failed to prove agreement in terms of which he would be paid a lump sum at termination of fixed term contract in the event of non-renewal.

fixed term: reasonable expectation

JR322/15

Rademeyer v Aveng Mining Ltd and Others (JR322/15) [2017] ZALCJHB 257 (28 June 2017)

Section 186(1)(b)

De Milander v Member of the Executive Council for the Department of Finance: Eastern Cape and Others (2013) 34 ILJ 1427 (LAC)

The test whether or not an employee has discharged the onus is objective, namely, whether a reasonable employee would, in the circumstances prevailing at the time, have expected the employer to renew his or her fixed-term contract on the same or similar conditions.... In order to assess the correctness of Mr Le Roux's contention that the appellant had a reasonable expectation that her contract would be renewed and that the MEC's failure to renew it constituted a dismissal, it is first necessary to determine whether she in fact expected her contract to be renewed, which is the subjective element. Secondly, if she did have such an expectation, whether taking into account all the facts, that expectation was reasonable, which is the objective element. Whether or not her expectation was reasonable will depend on whether it was actually and genuinely entertained