MARIUS SCHEEPERS LABOUR LAW ATTORNEY
LABOURATTORNEY

Labour Law cases decided in the South African Courts (Highlights and updated 1997 to 12 2025 [Copyright: Marius Scheepers /16.11.1]) Unfair Labour Practice: Acting allowance Dispute of interest JA39/99 Hospersa Benefit The LAC in the HOSPERSA case, considered that a benefit, contemplated by a residual unfair labour practice was situated on the pole occupied by an antecedent right to a benefit. This right arises ex contractu, ex lege or through a collective agreement JR1619/01 Eskom v Marshall & Others Benefit Legitimate expectation of provision of benefit Noted that the LAC decision in HOSPERSA was binding but expressed the view that where an employee has a legitimate expectation to the provision of a benefit, although not a legal or contractual right, the failure to provide that benefit might amount to an unfair labour practice. Held that the benefit concerned must be an ascertainable advantage or privilege which has been created by the employer concerned; or one which the employer has declared it will consider conferring upon employees. Held that, for example, where an employee aspires to a promotion, he or she may have a legitimate expectation that if he or she meets the requirements of the post and beats the competitors, he or she will be promoted (at [20] - [23], referring inter alia to Administrator, Transvaal v Traub & Others 1989 (4) SA 731 (A) and Public Servants Association on behalf of Geustyn v Provincial Administration: Western Cape (2000) 21 ILJ 700 (CCMA) JR1619/01 Eskom v Marshall & Others Demotion Employer reducing status of employee but leaving salary unchanged the transfer from regional manager to branch manager constituted a demotion (at [15] - [19] and [24], referring to Taylor v Edgars Retail Trading (1992) 13 ILJ 1239 (IC) and Matheyse v Acting Provincial Commissioner, Correctional Services & others (2001) 22 ILJ 1653 (LC JR1658/01 Van Wyk v Albany Bakeries Ltd & Others Severance pay that a dispute about the composition and amount of severance pay was a dispute of interest. Held further that the rate and formula were agreed, D1676/02 Telkom (Pty) Ltd v CCMA; Cowling, MG & Cross, D Demotion demotion was when something to which the employee was entitled was withdrawn and that this could include status as well as a condition of employment J1099/01 Minister of Justice & The Department of Justice v Bosch, D N.O.; Wepener, C & General Public Service Bargaining Council Discrimination when Ms Burger complained to her superior, a Ms van Zyl, about being placed close to black employees in the office. This was overheard by a fellow employee; at the disciplinary hearing she was found guilty and dismissed. She appealed and the sanction of dismissal was set aside on the basis that she had been issued a verbal warning, which had been confirmed in writing, as well as having apologised and had her apologies accepted by the aggrieved employees; held that the company’s failure to protect him amounted to direct discrimination; Held that Old Mutual had discriminated against Mr Finca by failing to take the necessary steps to protect him against racism in the workplace and therefore were liable to pay him compensation. C198/04 SATAWU obo Finca, X v Old Mutual Life Assurance Co (SA) Limited & Burger, J Promotion there were limited grounds on which an arbitrator, or a Court, could interfere with an employer’s discretionary powers, such as that of promotion. C 172/04 Arries, L E v CCMA; Van Staden, P & Southern Sun Hotel Interests (Pty) Ltd & Others t/a Beacon Isle Timeshare Resort Demotion Compensation criteria set out in the decision of the LAC in Ferodo (Pty) Ltd v De Ruiter (1993) 14 ILJ 1974, i.e. there must be evidence of actual financial loss; proof that the loss was caused by the unfair labour practice; the loss must be foreseeable; the award must endeavour to place the applicant in monetary terms in the position he would have been in, had the unfair labour practice not been committed; and the award must be fair and reasonable in the circumstances. The applicant must also take steps to limit his loss, e.g. take reasonable steps to find alternative employment. JR987/05 Solidarity obo Kern v Mudau & Others Promotion No employment equity plan Award difference remuneration had he been employed JR593/07 City of Tshwane Metropolitan Council v SA Local Government Bargaining Council and Others Promotion Not ito Equity Plan Exhaust provisions Chapter V EEA first JS164/03 Minister of Safety and Security & Another v Govender ULP Commissioner should have joined successful candidate of own accord JR2222/05 Minister of Safety & Security v De Vos & Others Dispute one of interest Upgrading of position and payment of acting allowance; re-evaluation of job; grading of post JR 1843/05 Polokwane Local Municipality v South African Local Government Bargaining Council & Others promotion statutory regime regulating promotion JR53/05 National Commissioner South African Police Service & Another v Cohen N.O. & Others Suspension without pay breach of the disciplinary code disciplinary committee and the appeal committee were bound by the same limitations on the issue of the suspension without pay. JR 197/08 UNISA v Solidarity obo Marshall & Others Unfair suspension Unfair suspension; right to be heard before suspension confirmed J2632/09 Baloyi v Department of Communications & Others Unfair suspension Reasons for and supporting information regarding suspension to be provided opportunity to respond J2632/09 Baloyi v Department of Communications & Others Promotion Not automatic right Ee show arbitrariness or other unfairness P54/09 South African Police Services v Safety and Security Sectoral Bargaining Council & Others Benefit not = acting allowance Other occasions granted not demand for future payment D644/09 Independent Municipal and Allied Trade Union obo Verster v Umhlathuze Municipality Suspension precautionary suspension cases the audi rule did apply. all suspensions should be procedurally fair however required some qualification: fairness was a flexible concept that depended in each case an opportunity to make written representations would ordinarily suffice. JA58/10 MEC for Education, North West v Gradwell Suspension other case law cited Chirwa v Transnet Ltd [2008] 2 BLLR 97 (CC). the audi alteram partem rule applied was no longer authoritative since JA58/10 MEC for Education, North West v Gradwell right to fair labour practices in s 23 of the Constitution; was obliged to base her case on the applicable labour legislation that had been enacted under the Constitution 187(1)(d); was sufficiently persuasive not to prevent the applicant from pursuing her claim in those terms C620/2011 De Klerk v Cape Union Mart International (Pty) Ltd Suspension Munisipal authority C431/12 Nothnagel v Karoo Hoogland Municipality and Others Demotion C467/05 PSA & Other v Public Health & Welfare Sectoral Bargaining Council & Others Demotion Other case law cited Sidumo judgment, the scope for reviewing commissioners awards had been highly limited. In essence, the function of the court would be to affirm commissioners decisions unless the evaluation of fairness by the commissioner was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the established principles of law. C467/05 PSA & Other v Public Health & Welfare Sectoral Bargaining Council & Others Suspension without pay only if so agreed 186(2)(b) D813/06 SAPPI Forests (Pty) Ltd v CCMA & Others ULP 7 years to refer, ongoing repeat itself every month JA36/07 South African Broadcasting Corporation Ltd v CCMA & Others Promotion selection and appointment of an employee as akin to administrative decision-making, needed to be re-evaluated in the light of the constitutional recognition of the distinct labour rights to fair labour practices in s 23 of the Constitution and just administrative action in s 33. C1148/2010 City of Cape Town v SAMWU and Others Promotion Not having a legitimate expectation. Failed to establish that any representation was made to him in clear, unambiguous terms devoid of any qualification. Failed to establish that the representation on which he relied was either competent or lawful for the decision maker to make (JR1904/12) [2013] ZALCJHB 162 Mokoaledi v Minister of Health and Others Performance bonus Performance bonus not part of remuneration and dispute clearly an unfair labour practice dispute Nature of dispute before court to be decided by court and not bound by a party’s description of it (JS 884/2011) [2013] ZALCJHB 266 Aucamp v SARS Meaning of term benefit A benefit for the purposes of s 186(2)(a) was not limited to an entitlement that arose out of a contract or by operation of law. Apollo Tyres (Pty) Ltd v CCMA [2013] 5 BLLR 434 (LAC) (JR 2209/13) [2014] ZALCCT 64 Thiso and Others v Moodley NO and Others section 186(2)(b): any other unfair disciplinary action short of dismissal in respect of an employee JR509/2014 Special Investigating Unit v Commission for Conciliation, Mediation and Arbitration and Others (JR509/2014) [2017] ZALCJHB 127 (21 April 2017) [14]John Grogan: Employment Rights 1st ed (Juta & Co, Cape Town 2013) at 135-6. To fall within the terms of section 186 (2) (b), disciplinary action against an employee short of a dismissal must be disciplinary both in nature and in intent. Action is disciplinary if it is aimed at correcting errant behaviour for which the employee is responsible. So, for example, a counselling session or a warning for incapacity does not fall within the scope of the definition. The definition is also concerned with disciplinary action. The decision to hold a disciplinary enquiry does not fall within the definition of an unfair labour practice- the action must have been instituted before an employee can refer a dispute relating to disciplinary action short of dismissal. The word action also suggests that employees may not refer a dispute over the content of an employers disciplinary policy. A dispute may be entertained only if the employer actually takes action. Only the Labour Court or, perhaps, the High Court, has the power to interdict a disciplinary hearing. according to the Commissioner, had failed to comply with its own disciplinary code and procedure and therefore its actions were tantamount to an unfair labour practice by an employer on an employee. ... the Commissioner equally had no jurisdiction over the matter as there was no dispute between the parties. demotion JR2016/14 Sibanye Gold Limited v Solidarity obo Bezuidenhout and Others (JR2016/14) [2017] ZALCJHB 382 (12 October 2017) unfair labour practice in relation to demotion and ordered the applicant to reinstate The Policy was central to the first respondents case at arbitration and was documentary evidence before the Commissioner. The interpretation of the Policy was something the Commissioner was enjoined to apply his mind to. It was not reasonable for a decision-maker to accept Wagners understanding of one clause without applying his mind to the legal submissions before him, and the clause itself read in context. Benefits JR2498/13 Pretorius v G4S Secure Solutions (SA) (Pty) Ltd and Others (JR2498/13) [2015] ZALCJHB 414 (24 November 2015) Apollo Tyres transfer may in itself constitute a demotion Dispute of right not excluded to ULP JR2498/13 Pretorius v G4S Secure Solutions (SA) (Pty) Ltd and Others (JR2498/13) [2015] ZALCJHB 414 (24 November 2015) MITUSA v Transnet Ltd (2002) 23 ILJ 2213 (LAC) held that a dispute of right is not excluded from the ambit of an unfair labour practice. Finding an accommodation and proving it to be reasonable is an onus resting on the employer. So is the onus of proving that a reasonable accommodation is unjustifiable. For her part, an employee with disabilities must prove that an accommodation that she proposes is reasonable on the face of it. She must also accept a reasonable accommodation and facilitate its implementation, even if it is a less than perfect or preferred solution. Stocks Civil Engineering (Pty) Ltd v Rip NO & another [2002] 3 BLLR 189 (LAC) Benefit PA24/14 Mawethu Civils (Pty) Ltd and Another v National Union of Mineworkers and Others (PA24/14) [2016] ZALAC 13; [2016] 7 BLLR 661 (LAC); (2016) 37 ILJ 1851 (LAC) (20 April 2016) The practice of giving employees a full days paid leave in exchange for overtime for a lesser period in the preceding week undoubtedly falls within the concept of a benefit. The dispute about payment for the leave day is indeed a dispute of right. Promotion JR2245/16 Solidarity obo Kriek v Sasol Synfuels (Pty) Ltd and Others (JR2245/16) [2016] ZALCJHB 190 (13 May 2016) [5] It must also be mentioned that the arbitrators reliance on the principle that an employee may only raise an unfair labour practice dispute on the basis that they are claiming a right ex contractu or ex lege was misplaced in light of the LAC decision in Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others(2013) 34 ILJ 1120 (LAC) , which confirmed the principle recognized in Gauteng Provinsiale Administrasie v Scheepers & others [2000] 7 BLLR 756 (LAC) that this was not a pre-requisite for establishing an unfair labour practice claim, albeit that those cases dealt with benefits : The court [in Scheepers] clearly recognized that the unfair labour practice dispensation does create rights. This is a significant shift from the notion espoused in HOSPERSA that the right to a benefit must be derived from statute, contract or a collective agreement. demotion J1038/16 Mangcu v City of Johannesburg (J1038/16) [2017] ZALCJHB 351; [2017] 10 BLLR 1055 (LC) (22 February 2017) Ndlela v SA Stevedores Ltd(1992) 13 ILJ 663 (IC). demotion is not a word which has some special meaning in labour law. It bears its ordinary meaning, namely to 'reduce to a lower rank or category'[5]. The converse of demotion is promotion. Demotion in the ordinary sense means a reduction or diminution of importance, responsibility, status and salary. lowering in salary JR951/16 Tshifhango and Another v Minister of Justice and Correctional Services and Others (JR951/16) [2017] ZALCJHB 97; (2017) 38 ILJ 2131 (LC) (23 March 2017) 30]In casu the condition is the existence of an incorrect salary, salary level, salary scale being awarded to an employee. If the condition exists, the consequence is that the relevant executing authority shall be obliged to correct it. The executing authority exercises no discretion as the said consequence that flows from the existence of the condition arises by operation of law and not by the exercise of any discretion. jurisdiction JR634/1 Public Service Association of South Africa obo Members v MEC for Agricultural and Rural Development ( North West Province) (JR634/13) [2017] ZALCJHB 480 (12 October 2017) unfair labour practice jurisdiction: performance management and development system and consequent payment of bonuses: constitutes a benefit under the unfair labour practice jurisdiction: dispute should be dealt with by bargaining council under normal dispute resolution processes under Chapter VIII of the LRA: review under Section 158(1)(h) not appropriate [31] There is no doubt that as a general proposition, the Labour Court has the jurisdiction, in terms of Section 158(1)(h) of the LRA, to consider the applicants application to review and set aside the decision of the department relating to the payment of performance bonuses to employees, on the basis of the test as summarized above. Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296 (CC) at para 74 Merafong City Local Municipality v SA Municipal Workers Union and Another (2016) 37 ILJ 1857 (LAC) at para 36. Section 158(1)(h) of the LRA refers to a jurisdictional power of the Labour Court. It specifically provides that the Labour Court 'may review any decision taken or any act performed by the State'. The only way the Labour Court is able to review is by hearing and determining an application for review of the acts and/or decisions contemplated in s 158(1)(h). That section should be read as not only conferring a power, but also jurisdiction upon the Labour Court. 32]But it is not as easy as that. The fact that the Labour Court has jurisdiction / power does not mean that the Court should exercise this power. In other words, and even thought the Court may have jurisdiction to consider such a review under Section 158(1)(h), it does not mean that it is appropriate for it to exercise such power, especially where there are other specifically prescribed means by way of which the issue can be resolved. Hendricks v Overstrand Municipality and Another (2015) 36 ILJ 163 (LAC) at paras 10 12. These dicta of the Constitutional Court support the general proposition that public sector employees aggrieved by dismissal or unfair labour practices (unfair conduct relating to promotion, demotion, training, the provision of benefits and disciplinary action short of dismissal) should ordinarily pursue the remedies available in ss 191 and 193 of the LRA, as mandated and circumscribed by s 23 of the Constitution. Public Servants Association of SA on behalf of de Bruyn v Minister of Safety and Security and Another (2012) 33 ILJ 1822 (LAC) at para 32. See also the conclusion reached by the Court at para 34 of the judgment. Therefore, the court a quo (although of the opinion that the application before it was in terms of s 158(1)(g) of the LRA) correctly proceeded to consider whether the LRA required the kind of dispute which existed between the appellant and the respondent to be resolved through arbitration. The court concluded that leave, including incapacity leave and temporary incapacity leave at the respondent's organization, is governed by the provisions of Resolution 5 of 2001 of the PSCBC, which is a binding collective bargaining agreement. This means that the dispute between the parties was required to be submitted to arbitration as it concerned the application and/or interpretation of the provisions of the PSCBC resolution [43] It is useful to refer to some examples where such exceptional circumstances were found to exist. One of these is in fact the judgment in Minister of Labour[36] itself which dealt with the revocation of an employee’s designation of Registrar of Labour Relations in terms of the LRA,[37] and his resultant removal from that position, for reasons that were entirely irrational and invalid and where there in reality was no alternative remedy. A further example is Hlabangwane v MEC for Public Works, Roads and Transport, Mpumalanga Provincial Government and Others[38] which concerned a case where the right to discipline the employee had been specifically removed by statute (the Public Service Act) as a result of a transfer of the employee. A final example is by now the well-known matter of Solidarity and Others v SA Broadcasting Corporation[39] which concerned the dismissal and victimization of reporters for being critical of policy decisions by the SABC as public broadcaster, which conduct violated the Constitutional duties of the employees, and even infringed on the right of the public to be properly informed. 47] How do the applicants then seek to avoid their dispute being considered to be one of an unfair labour practice? The answer is simple. It is all about labelling. The applicants initiated this dispute before this Court under Section 158|(1)(h) of the LRA, by way of, in my view, an act of deliberate labelling. The applicants in essence labelled the dispute as an infringement of their Constitutional right to legality, as evidenced by a number of causes of complaint specifically dealt with hereunder, and they specifically steer away from relying on unfairness. But, and as I have dealt with above, the Court should not be bamboozled by this kind of labelling. [61]In summary therefore: The dispute of the applicants is quintessentially an unfair labour practice dispute, and as a matter of principle it should not be decided on the basis of a legality review in this Court Promotion CA07/2017 Public Servants Association obo Thorne v Department of Community Safety (Western Cape) and Others (CA07/2017) [2018] ZALAC 24; [2018] 12 BLLR 1173 (LAC) (8 June 2018) Ncane v Lyster NO and Others(2017) 38 ILJ 907 (LAC) at para 25. [16] When evaluating the suitability of a candidate for promotion an employer must act fairly. A promotion decision is however not a mechanical process and there is a justifiable element of subjectivity or discretion involved. Thus an arbitrator typically will interfere only where the decision is starkly unreasonable, improperly motivated or mala fide.[3] The employee bears the onus to prove the alleged unfairness. Demotion JR1493/16 Xoli v Commission for Conciliation, Mediation and Arbitration and Others (JR1493/16) [2018] ZALCJHB 156 (19 April 2018) remunerated at a lower level I do not see why such a complaint cannot be construed as a complaint about a demotion, whatever other implications it might have. Accordingly, I am satisfied that the arbitrator did indeed have jurisdiction to deal with the dispute unfair conduct relating to benefits by unilaterally terminating a longstanding practice or right of granting employees special leave for the closure of the municipal offices during the festive season J2769/2016 IMATU obo Members v City of Tshwane Metropolitan Municipality (J2769/2016) [2018] ZALCJHB 254 (3 May 2018) reinstatement of special leave during festive season. The ruling is quite simply that the City must reinstate the applicants members special leave days during the festive period. That ruling stands and the City has not taken it on review Benefit CA4/2018 National Union of Mineworkers obo Coetzee and Others v Eskom Holdings SOC Ltc and Others (CA4/2018) [2019] ZALAC 62; [2020] 2 BLLR 125 (LAC); (2020) 41 ILJ 391 (LAC) (4 October 2019) A dispute about an unfair incorrect grading is thus an unfair labour practice dispute relating to the provision of benefits over which the CCMA will normally have jurisdiction. not competent relief where the employee was dismissed JR 917/16 Fidelity Security Service (Pty) Ltd v Socrawu obo Knoxwell Nengwekhulu and Others (JR 917/16) [2019] ZALCJHB 32 (25 February 2019) Unfair labour practice. Reinstatement of suspended employee not competent relief where it turned out during arbitration that the employee was dismissed prior to commencement of arbitration proceedings. The award reviewed and set aside in so far as the relief of reinstatement awarded by the arbitrator. policy relating to motor vehicle and fuel allowance constitutes benefit regulated by terms of policy JR 2160/15 Skhosana v Commission for Conciliation, Mediation and Arbitration and Others (JR 2160/15) [2019] ZALCJHB 39 (5 March 2019) benefit: scarcity allowance JR1148/2014 Maile v FOSKOR (Pty) Ltd (JR1148/2014) [2019] ZALCJHB 71 (2 April 2019) [18] In this case, once it was accepted that the scarcity skills allowance was a benefit payable at the discretion of the employer, and that all the trainers except for Maile were paid such an allowance, the next enquiry was whether Foskor acted fairly[4] in exercising that discretion in depriving Maile of the allowance[5]. [41]...categorised as an unfair labour practice dispute in terms of section 186(2)(a) of the Labour Relations Act[1] (the LRA), being one allegedly involving unfair conduct relating to the provision of benefits to an employee in that should the job be upgraded, the employees will receive better benefits, being an advantage or privilege to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employers discretion.[Thiso v Moodley NO [2015] 5 BLLR 543 (LC); and Apollo Tyres South Africa (Pty) Ltd v CCMA [2013] 5 BLLR (LAC) at para 50] promotion : policy JR369/1 Ekurhuleni Metropolitan Municipality and Another v SALGBC and Others (JR369/15) [2019] ZALCJHB 91 (10 May 2019 [8] In these circumstances, Mr Pieterse submitted, the municipality’s failure to short-list him was grossly unfair. More significantly, the municipality’s decision to appoint the successful candidate further contravened its own policy in that it failed to adhere to the minimum requirements for the post. 2. The award granting Mr Pieterse protected promotion is reviewed and set aside, and substituted by an award that the applicant must re-do the appointment process from the shortlisting stage. demotion JR803/18 MTN (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR803/18) [2019] ZALCJHB 152 (14 June 2019) The second respondent found that the transfer of the third respondent amounted to a demotion despite the fact that he retained his title and his conditions of employment. The reason for this finding is that the transfer constituted a diminution in status, importance, prestige and responsibility of the applicant as the store in Rosebank was a lot smaller than the store in Morningside. (Although the second respondent did not refer to it, the reduction in the third respondents remuneration.) He also found that the transfer was not preceded by consultation. Higher salary not benefit JR 316/18 City of Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (JR 316/18) [2020] ZALCJHB 221 (15 May 2020) [11] The head and tail of this dispute lies in the letter of 12 November 2010. It is apparent that Matee mistook this letter to be a contractual basis to pay Machete an increased salary. It is not. With reference to the Labour Appeal Court (LAC) judgment of Apollo Tyres SA v CCMA and others[[2013] 34 ILJ 1120 (LAC)], he mistook the claim of Machete to be one relating to benefits. A claim for a higher salary is not a claim relating to provision of benefits. [12] Clearly, even if Apollo, supra may be applied, which in the Courts view is not applicable, the letter does not give rise to a contractual right nor a legitimate expectation. respondents decision to cap the employers contribution to their post-retirement medical aid benefits (PRMA) was not in breach of contract or an unfair labour practice, unfair labour practice as contemplated in section 186(2)(a) JA95/19 Skinner and Others v Nampak Products Limited and Others (JA95/19) [2020] ZALAC 43 (24 November 2020) [16] In excess of 70% of the relevant employees accepted the offer at a cost of R236 million to Nampak. An offer in respect of the PRMA liability was also made to the retired employees, pensioners, who remained members of the scheme. About 75% of the pensioners accepted the offer at a cost of about R500 million to Nampak. The appellants did not accept the offer. They instead opted for the default option and sought to challenge the decision to cap the PRMA benefit. [21] The appellants argued that a term purporting to afford Nampak a sole discretion to determine its own performance is void. They relied in this regard on NBS Boland Bank Ltd v One Berg River Drive CC and Others[3] to submit that no promise can be valid if it lies wholly within the choice of the promissor. A careful reading of the judgment discloses that it is not authority for the proposition advanced by the appellants...It is thus doubtful that courts should continue to follow the principle. The SCA considered it unnecessary to decide the point because the rule does not apply to a contractual power to fix a prestation other than a price or rental. It held there was no reason to extend the common law rule to other types of contractual discretions. [23] Hence, generally, a stipulation conferring upon a contractual party the right to determine a prestation is unobjectionable. There is accordingly no basis to hold clause 4.1 of the policy invalid and the Labour Court did not err in making that finding. This does not mean, as the Labour Court correctly understood, that an exercise of such a contractual discretion is necessarily unassailable. In terms of our common law, unless a contractual discretionary power was clearly intended to be completely unfettered, an exercise of a contractual discretion to alter a prestation must be made arbitrio bono viri (reasonably).[Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700 (A) 707 A-B; Moe Bros v White 1925 AD 71,77; Holmes v Goodall and Williams Ltd 1936 CPD 35,40; Belville-Inry (Edms) Bpk v Continental China (Pty) Ltd 1976 (3) SA 583 (C) 591 G-H; and Remini v Basson 1993 (3) SA 204 (N) 210 I-J] The essential question in this case, therefore, is whether Nampak exercised its discretion under clause 4.1 of the policy reasonably. [25]...Clause 4.1 of the policy reflects a clear intention to permit adjustment (on legitimate or reasonable grounds) of the PRMA benefit of employees still in employment prior to their retirement. [26] The requirement that a contractual discretion should be exercised reasonably, arbitrio bono viri, means that the relevant party must not act in bad faith, arbitrarily or capriciously and should endeavour proportionally to balance the adverse and beneficial effects of the proposed decision or action. A court reviewing the justifiability of such an exercise of discretion should permit the holder of discretion a margin of appreciation in balancing the relevant interests and considerations and avoid substituting the discretion with its own merely because it might have exercised it differently. [40]...The contractual entitlement of the appellants is restricted by clause 4.1 of the policy which permitted Nampak at its discretion to alter the entitlement prior to its vesting on retirement. The claim of the appellants, in the light of clause 4.1 of the policy, is essentially a claim for an entitlement they did not have as future pensioners. Accepting that they have no entitlement under clauses 3.3.3 and 3.3.5 of the policy, their dispute amounts to a claim for new rights and is thus akin to a dispute of interest, in the final analysis a matter for collective bargaining. [41] There can only be a breach of contract or unfair labour practice if Nampak is shown to have exercised its discretion in terms of clause 4.1 of the policy unreasonably or unfairly. [42] The issue of affordability is not decisive. When assessing whether the employer has acted reasonably or fairly in exercising its discretion to alter its prestation, its operational requirements are undoubtedly a relevant consideration. An intention to increase profitability is an entirely legitimate commercial rationale. The unfair labour practice jurisdiction is not meant to restrict the proper pursuit of profit by the employer. The point was made by Zondo JP (as he then was) in Frys Metals (Pty) Ltd v National Union Metal Workers of SA & others[(2003) 2 ILJ 140 (LAC) at para 33] when he said in relation to the commercial rationale for operational requirements dismissals:[A]ll the Act refers to, and recognises, in this regard is an employers right to dismiss for a reason based on operational requirements without making any distinction between operational requirements in the context of a business the survival of which is under threat and a business which is making profit and wants to make more profit.[See also General Food Industries v Food and Allied Workers Union (2004) ILJ 1260 (LAC) para 52...[43] These are matters falling within executive and managerial prerogative.]...[44] There is no evidence of any illegitimate or ulterior motive or caprice. The process was transparent and sought fairly to balance proportionally the competing interests at stake. Section 188A of the LRA inquiry constitutes disciplinary action short of a dismissal JR 2236/17 Laubscher v General Public Service Sectoral Bargaining Council (GPSSBC) and Others (JR 2236/17) [2020] ZALCJHB 103; [2020] 10 BLLR 1053 (LC) (15 June 2020) [40] The dispute referred by the Applicant was not disciplinary sanction short of dismissal but rather disciplinary action short of dismissal. This disciplinary action short of a dismissal constitutes an unfair labour practice and may be only brought by an employee against an employer as it arises out of an employment or a "live relationship". The elements will be unfairness, arising from a disciplinary action, which action must have commenced; and such a disciplinary action must have the end results of falling short of a dismissal; example of it being withdrawn. Every employee enjoys a constitutional right to fair labour practice and our courts need to define and/or expand on these rights as provided for in the LRA. Benefit: commission JR 1356/18 Oracle Corporation South Africa (Pty) Ltd v Malgas and Others (JR 1356/18) [2020] ZALCJHB 136 (17 August 2020) [45] The fact that the negotiations between the South African team and Multichoice in South Africa collapsed when Naspers opted for a global contract with Myriad ought to have been the end of the matter, as Malagas efforts did not bear any fruit. Thus, in the absence of evidence to point to the influence of Malagas or the applicants efforts being utilised to seal the deal, which evidence was not placed before the Commissioner, it follows that her conclusions that Malagas played a role in the deal are indeed not supported by any evidence, and are at best speculative. Thus, reliance by the Commissioner on unsupported evidence, speculation, and/or evidence insufficiently reasonable to justify a conclusion rendered her award reviewable[9]. [46] Once it was concluded that Malagas played no role in the ultimate deal, that ought to have been the end of the matter. The Commissioner nonetheless proceeded to find that commission was payable albeit subject to the discretion of the applicant, and that the applicant did not exercise its discretion fairly. This finding is equally without a basis in the absence of conclusions that Malagas played a role or the in the absence of the teaming agreement. The applicant cannot be accused of having applied its discretion unfairly, or acted arbitrarily, capriciously or inconsistently in not paying commission, in circumstances where the basis for such payment was not demonstrated. [52] I therefore agree with the submissions made on behalf of the applicant that a finding of unfair labour practice on the part of the applicant cannot be one that a reasonable commissioner could have come to in the light of the material that was served before her. Benefit: PRMB JA03/2020 Total SA (Pty) Ltd v Meyer and Others (JA03/2020) [2021] ZALAC 12 (2 June 2021) [25] Turning to the first respondents cause of action, it was predicated on the definition of unfair labour practice as set out in s 186 (2) (a) of the LRA, which includes any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the provisions of benefits to an employee. In Apollo Tyres South Africa (Pty) Ltd v CCMA [2013] 5 BLLR 434 (LAC) this Court gave content to the phrase the provisions of benefits to an employee as follows: In my view, the better approach would be to interpret the term benefit to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employers discretion. (my emphasis) [33]...This it failed to do, in that there was no evidence put up to gainsay the first respondents case of differentiated treatment. The only conclusion that can be drawn is that reached by the court a quo, namely, that the appellants decision was arbitrary, capricious and inconsistent, and thus amounted to an unfair labour practice in terms of s 186 (2) (a) of the LRA. Benefit: Definition and (1.1) The applicant succeeded to prove that the first respondent committed an unfair labour practice relating to non-payment of its members acting allowance JR 932/19 Independent Municipal and Allied Trade Union obo Dhlamini v Moqhaka Municipality and Others (JR 932/19) [2021] ZALCJHB 60 (24 May 2021) [12] Regarding the first issue, the arbitrator relied on the Concise Dictionary, the judgments in Schoeman and another v Samsung Electronics SA (Pty) Ltd; Sithole v Nogwaza NO and others and Northern Cape Provincial Administration v Hambridge NO and others in reaching the following conclusion:27. Although opinions as to what constitutes a benefit (as opposed to remuneration) differ, the common thread running through all the positions and academic writings is that a benefit constitutes a material benefit such as pensions medical aid, housing subsidies, insurance, social security or membership of a club or society. 28. In other words, the benefit must have some monetary value for the recipient and be a cost to the employer. It is also something which arises out of a contract of employment. 29. According to Northern Cape Provincial Administration v Hambridge NO [1999] 7 BLLR 698 (LC) benefit is a supplementary advantage conferred on an employee for which no work is required. About the letter in hand, the acting position is not available to all employees. 30. The difference is that benefits are available to all employees, but an acting position is only available to employees that qualify or meet the minimum requirements and who are to undertake extra work. [13] It is apparent from the reading of the award that the arbitrator did not consider the later developments in law, particularly in relation to the notion that an employee has to prove a pre-existing right prior to bringing a benefit claim. In Independent Municipal and Allied Workers Union obo Vester v Umhlahhuze Municipality,[2] this Court dealt with a review of an award in terms of which an arbitrator had found that an acting allowance did not constitute a benefit in term of section 186(2)(a). Having reviewed the case law and the academic writings, the Court found, inter alia, that: an unfair labour practice dispute over an acting allowance, in which an employee is making the claim on the basis that it was granted to him or others in similar circumstances on other occasions, is a claim that the employer has unfairly refused to confer the benefit on the occasion in question Something extra JR2267/15 Office of the Premier: Limpopo Provincial Government v Phooko NO and Others (JR2267/15) [2021] ZALCJHB 106 (26 May 2021) [11]...Regard being had to the decision of Apollo Tyres South Africa (Pty) Ltd v CCMA[2] a benefit must be something extra[3] that arises from a contract, a party claiming a benefit out of a contract must prove the existence of that contract and the term that gives him or her that right to the benefit. This Court accepts that it is possible that during the benefits dispute parties may quibble around the terms of that contract, which may lead an arbitrator into a situation where the terms of the contract are interpreted using the known and accepted interpretative tools to find or not find the right. [13] It has long been held that a benefit is something extra other than remuneration which is contractually, legislatively guaranteed or legitimately expected. The Resolution does not guarantee any benefit but a translation promotion or a pay progression salary increment. The salary increment is not something extra but remuneration. This Court takes a firm view that Mokubela has nonetheless failed to show that a benefit is due to her contractually. That being the case, a conclusion that the Office of the Premier has committed an unfair labour practice in relation to the provision of benefits is not one a reasonable decision maker may reach. [14] Assuming that benefits are involved in this dispute, the question that must follow is whether Mokubela had discharged the onus that the Office of the Premier has committed an unfair labour practice. An unfair labour practice claim is akin to a contractual claim. The employee must prove (a) that a contract is extant, if reliance is placed on one, and that the other party has breached that contract. Demotion: transferred back to her previous post with the concomitant reduction of salary CA17/2020 Department of Defence v Farre and Others (CA17/2020) [2021] ZALAC 33 (11 October 2021) she was then transferred back to her previous post with the concomitant reduction of salary and obligation to repay R 178 88.98 clearly constituted the kind of practice which falls within the scope of principle of an unfair labour practice Apollo Tyre South Africa (Pty) (Ltd) v CCMA [2013] 5 BLLR 434 (LAC) this Court agreed with the minority judgment of Goldstein AJA in Department of Justice v CCMA (2004) 25 ILJ 248 (LAC) para 14 [19] Whatever the position it seems to me respectively with the view expressed in paragraph 9 that item 2(1)(b) provided only for rights which arose ex contractu ex lege was clearly wrong. If that was so, the provision would have been redundant since such rights would have been enforceable in the absence of item 2 (1)(b). It is significant that item 3 (4)(b) expressly provided for a dispute referred to inter alia in item 2 (1) (b) to be resolved in arbitration. It is significant to that the introductory words in item 2 (1) and the cardinal words in item 2 (1)(b) concerned an unfair labour practice and unfair conduct. Just as the LRA provides for disputes arising from unfair dismissals in respect of which there are no contractual remedies and remedies of common law to resolve an arbitration so was item 2 (1)(b) designed for situations when neither the contract of employment nor the common law provided an employee with a remedy.[20] In following this approach, Musi AJA in Apollo Tyres said at para 51:An employee wants to use the unfair labour practice jurisdiction in s 186 (2) (a) relating to promotional training does not have to show that he or she has a right to promotion or training and ought to have remedy when the fairness of the employers conduct relating to such promotion (or non-promotion) or training is challenged. [21] In my view, therefore the third respondent was correct to hold that the conduct of the appellant was unfair in that it was unfairness of the practice rather than the breach of a preexisting right which formed the basis of the claim. [14]... The court a quo thus held that the third respondent had reasonably concluded that this action on the part of the appellant constituted a demotion. The learned judge also found that the third respondent had correctly found that the appellant had not complied with the audi alteram partem rule before it had taken the decision effectively to demote the first respondent. Further the learned judge found that the reason for this demotion was that the employer dragged its feet in reclassifying her post. Furthermore, the functions which the first respondent had performed would have always been scientific and not administrative which was clearly evident from the description of that which she was required to perform in terms of her post. continuous JR 678/16 Harmony Gold Mining Company Limited-Kalgold Operations v Commission for Conciliation, Mediation and Arbitration and Others (JR 678/16) [2022] ZALCJHB 25 (18 January 2022) 20] Similarly, the ground that the commissioner committed an error of law in finding that the unfair labour practice was continuous is without any merit. In CCMA v CCMA[(2010) 31 ILJ 592 (LAC)], the LAC stated as follows: While an unfair labour practice/unfair discrimination may consist of a single act it may also be continuous, continuing or repetitive. For example where an employer selects an employee on the basis of race to be awarded a once off bonus this could possibly constitute a single act of unfair labour practice or unfair discrimination because like a dismissal the unfair labour practice commences and ends at a given time. But, where an employer decides to pay its employees who are similarly qualified with similar experience performing similar duties different wages based on race or any other arbitrary grounds then notwithstanding the fact that the employer implemented the differential on a particular date, the discrimination is continual and repetitive. The discrimination in the latter case has no end and is therefore ongoing and will only terminate when the employer stops implementing the different wages. Each time the employer pays one of its employees more than the other he is evincing continued discrimination. [17] The applicant further submitted that to an extent that NUM became aware of the applicants omission to include them in the 50/50 medical aid benefits scheme in March 2015, it should have referred the dispute in June 2015. Further that as the dispute was referred on 2 October 2015, it was referred more than 90 days late, which is excessive. [11]...respondents were taken over by the applicant in 2002 in terms of section 197, their employment contracts required the applicant to contribute 100% towards their medical aid contributions. However, this was not done by the applicant. Instead, the applicant deducted 100% medical aid contribution from their salaries, even though it contributed 50% for its other employees. [22] These concerns implicate the procedural fairness of her hearing and it is well established that the benchmark in matters where some form of procedural unfairness is alleged remains Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration[(2006) 27 ILJ 1644 (LC) 1651C-1652A], where the court stated that it will ordinarily hold an employer to no more than the statutory code of good practice or, if they are more favourable, the terms of the employers disciplinary code and procedure. The test to be applied is not that which applies in a criminal trial. acting allowance JR1450/17 Department of Military Veterans v Moche and Others (JR1450/17) [2022] ZALCJHB 44 (7 March 2022) [9] Although the commissioner dismissed the first respondents claim to be upgraded to level 10, he ordered the applicant to pay the first respondent the difference in salary between the level 6 and level 10 positions. 2. The matter is remitted to the second respondent for a hearing de novo before a commissioner other than the third respondent. [16] Section 186 (2) (c) of the LRA provides that it is an unfair labour practice to fail or refuse to re-instate or re-employ a former employee in terms of any agreement. JR 1534/20 Moloko v Commission for Conciliation, Mediation and Arbitration and Others (JR 1534/20) [2022] ZALCJHB 76 (9 March 2022) [16]...Other than the unfair act or omission that must arise between an employer and an employee, the essential elements for a claim under the section are; (a) failure or refusal; (b) to re-instate or re-employ a former employee; and (c) in terms of an agreement. Therefore, the right to be reinstated or reemployed must arise from an agreement. John Grogan in his work Workplace Law[2] opines that Section186 (2) (c) differs from selective dismissal in that affected employees need not prove that they were treated selectively mere breach of an agreement is sufficient. He further opines that employees alleging this form of unfair labour practice must prove the existence of an agreement that imposes an obligation on the employer to re-employ them. I plentifully agree. A claim for an unfair labour practice in relation to the failure or refusal to reinstate or re-employ is akin to a breach of contract claim. Like in any contractual claim, the former employee as a party must establish the existence of an enforceable agreement. Absent such an agreement, a former employee does not have a claim for an unfair labour practice. [14] With regard to an unfair labour practice, the legislature makes reference to (a) an existence of a dispute; (b) about an unfair labour practice; (c) and an employee alleging an unfair labour practice. As defined, a dispute includes an alleged dispute. Thus, what entitles an employee to enter the dispute resolution zone in relation to an unfair labour practice is an allegation as opposed to showing that an employee is dismissed in a dismissal situation. Section 191 (5) (b) (iv) of the LRA is explicit, the council or the Commission is obligated to arbitrate at the request of an employee if the dispute, which includes an alleged dispute, concerns an unfair labour practice. In other words the licence to arbitration is the existence of a dispute or an alleged dispute concerning; related to or about an unfair labour practice. Therefore, it cannot be said that Zwane lacked jurisdiction in an objective sense to arbitrate an allegation that Ashanti failed or refused to reinstate or re-employ Moloko as a former employee in terms of any agreement. The issue whether there was an agreement goes to the merits as opposed to jurisdiction. Concluding that non-existence of an agreement to reinstate or re-employ is a jurisdictional issue is an error, which is not material enough to affect a reasonable outcome of failure by Moloko to discharge an onus to show an unfair labour practice within the meaning of section 186 (2) (c) of the LRA. promotion J1943/2019 MEC for Gauteng Department of Infrastructure Development v Ramapepe (J1943/2019) [2022] ZALCJHB 98 (12 May 2022) [98] Rationality was defined by [C. Hoexter Administrative Law in South Africa, 2nd ed, Juta, 2012, at p 340.] as follows:[t]his means in essence that a decision must be supported by the evidence and information before the administrator as well as the reasons given for it. It must also be objectively capable of furthering the purpose for which the power was given and for which the decision was purportedly taken. [99] The Applicants case is that the Respondents appointment to the post of Deputy Director: Professional Secretariat Services is irrational and cannot survive rationality scrutiny, considering the absence of a proper relationship between the action of the functionary and the facts and information available to her and on which she purported to base the decision.[100] In my view, there is merit in the Applicants submissions. The purpose of the recruitment and selection process prescribed under the PSA and PSR is to ensure equality and fairness in the filling of posts in the public service. It is for these reasons that the PSA prescribes that the evaluation of candidates should be based on inter alia training, skills, competence, knowledge and the need to redress the imbalances of the past. The PSR provides that the selection committee shall make a recommendation on the suitability of a candidate after considering only, inter alia, information based on valid methods, criteria or instructions for selection that are free from any bias or discrimination and the training, skills, competence and knowledge necessary to meet the inherent requirements of the post.[101] In Khumalo, it was held that it is neither fair nor in compliance with the dictates of transparency and accountability for the State to mislead applicants and the public about the criteria it intends to use to fill a post. The formulation and application of requirements for a particular post is a minimum prerequisite for ensuring the objectivity of the appointment process.[Khumalo v Member of the Executive Council for Education: Kwazulu-Natal[2014 (5) SA-579 (CC).] (Khumalo)] demotion in terms of section 186(2)(a) of the LRA. JR1746/19 Capitec Bank Ltd v Commission for Conciliation, Mediation and Arbitration (JR1746/19) [2022] ZALCJHB 166 (22 June 2022) [34] It is clear from the evidentiary analysis at paragraphs 35, 36 and 40 of the Award that the Commissioner reasoned that the status of Ms Mahlangus previous Key Accounts Manager position was greater than that of her new Regional Manager position.[35] The Commissioner reached this conclusion despite evidence that the Key Accounts Manager position had no reports, slightly lower remuneration and was on the same occupational level (Lower D Level) as the Regional Manager position. In doing so, the Commissioner considered that Ms Mahlangus concern was not with her remuneration or occupational level, but rather with her alleged reduction in status in the organisation. [39] However, for the above reasons, I do not find fault with the Commissioners reasoning that Ms Mahlangus status in the organisation was reduced when she was moved from the position of Key Accounts Manager for the public service to Regional Manager for Mpumalanga. As for the significance of that finding, in Van Wyk v Albany Bakeries Ltd and others[AA1] [[2003] 12 BLLR 1274 (LC) at para 17.], the Labour Court stated that: A demotion has therefore less to do with the demoted employees salary. It would seem the reduction of salary is only a secondary factor, the primary and decisive factor being the reduction in rank, position or status of the employee concerned.[40] Similarly, in Taylor v Edgars Retail Trading[(1992) 13 ILJ 1239 (IC)] the Industrial Court referred to the concept of demotion, as formulated by Scoble[See: C. Norman-Scoble Law of Master and Servant in South Africa (Butterworth and Co (Africa), 1956).] as follows: Where a servant is employed to perform a particular class of work and contracts to perform work of a particular character, is thereafter instructed to perform work of a more menial nature, he may be said to have been degraded in his status, and as such action by his employer may in certain circumstances be regarded as tantamount to dismissal.[][41] The above dictum was cited with approval in Matheyse v Acting Provincial Commissioner, Correctional Services and others[(2001) 22 ILJ 1653 (LC) at para 27.]. In Matheyse (supra) the Labour Court further elaborated on the issue of demotion and stated: In a series of decisions (which predated the LRA) the civil courts have gone further and applied a wider definition to the concept of demotion in the labour relations context, holding that it applies even where employees retain their salaries, attendant benefits, and rank, but have suffered a reduction or diminution in their dignity, importance and responsibility or in their power or status. Capitec Bank Limited is ordered to pay compensation to Ms Mahlangu equal to three months remuneration calculated according to the total cost-to-company monthly remuneration received by Ms Mahlangu in the position of Key Accounts Manager. Benefit: Travelling allowance JR 1724/2020 Polokwane Municipality v South African Local Government Bargaining Council and Others (JR 1724/2020) [2022] ZALCJHB 197 (29 July 2022) [6] In the present instance, the subject of a travelling allowance is not the subject of any contractual term. Both municipalities regulate the payment of the allowance in terms of a policy. The difference in the policies, as I have indicated, is that the Aganang policy permits payment of a travel allowance for business travel both inside and outside of the municipal boundary; in the case of the applicant, payment is limited to travel outside municipal boundaries. [5] In general terms, a benefit must arise ex contractu or ex lege. The courts have always defined benefit narrowly, so as to avoid the consequence of a limitation on the right to strike in support of improved conditions of employment. In Protekon (Pty) Ltd v CCMA & others [2005] 7 BLLR 703 (LC), this court observed that in terms of many employee benefit schemes, employers enjoy a range of discretionary powers in terms of their policies and rules, and held that the primary purpose of the unfair labour practice protection in relation to employee benefits was to permit scrutiny of employer discretion. That conclusion was upheld in Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration [2013] 5 BLLR 434 (LAC), where the Labour Appeal Court held that a benefit could arise from a contract of employment, or a policy or practice some advantage or privilege arising from a policy or practice where the employer is afforded a discretion in relation to the subject of that policy or procedure (at paragraph 50). What unfairness in this context requires is some failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct (at paragraph 52). [7] I am not persuaded that the provisions of the respective policies on travelling allowances constitute a benefit for the purposes of section 186 (2)(a) of the LRA. The policies provide for the reimbursement of costs incurred while travelling on the employers behalf, rather than a benefit. Further, there is no exercise of any discretion by the employer in this instance the terms of the policy are fixed and apply to all employees covered by it. Suspension: 182(2)(b) of the LRA, alleging that the Applicant had not furnished him with enough detail and reasons for his suspension JR1254/16 Wholesale & Retail Sector Education and Training Authority (W&RSETA) v Commission for Conciliation, Mediation and Arbitration and Others (JR1254/16) [2022] ZALCJHB 209 (4 August 2022) [16] The answer to the first supplementary question depends on the legal standard applicable to the particularity of suspension notices. It is trite that the law imposes a duty of fair dealing on employers whenever they make decisions affecting their employees, and that when contemplating suspensions, this duty obliges employers to, at a minimum, have a justifiable prima facie reason to believe that the employee has engaged in serious misconduct; has an objectively justifiable reason to deny the employee access to the workplace; and afford the employee an opportunity to state a case before the employer makes a final decision on the suspension.[Mogothle v Premier of the North West Province and Another [2009] 4 BLLR 331 (LC) at para 39.] [18] The Applicant referred this Court to Mere v Tswaing Local Municipality and Another,[(2015) 36 ILJ 3094 (LC) (7 July 2015)] where this Court, per Snyman AJ, held that an employee who had been furnished with an admittedly unspecific notice of intention to suspend but had been invited to a meeting where the reasons for his suspension were verbally explained, was lawfully suspended. This case, however, differs from the present, in that it dealt not with an unfair labour practice but concerned itself with whether the suspension was lawful in terms of the Local Government: Disciplinary Regulations for Senior Managers. Although the case itself does not assist much, it does raise the question whether, in suspension proceedings, the employee must be furnished with all specific reasons in writing, or whether it is sufficient for the employee to simply be made aware of the reasons thereof, verbally or otherwise. [19] In Sol Plaatje Municipality v SA Local Government Bargaining Council and others[(2022) 43 ILJ 145 (LAC).] the Labour Appeal Court cautioned courts and tribunals against an unduly strict and technical approach to the framing and consideration of disciplinary charge sheets and postured that a disciplinary charge may be broad, as long as a reasonable inference may be drawn that the accused's conduct fell within that scope.[20] Although Sol Plaatjie was in the context of actual disciplinary proceedings, it is worth noting that the standard in precautionary suspensions is lower than in disciplinary proceedings. It bears repeating that "[w]here the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations."[Long v South African Breweries (Pty) Ltd and Others; Long v South African Breweries (Pty) Ltd and Others [2019] 6 BLLR 515 (CC) at para 24.] Where no legal requirement for a hearing exists, it cannot be that nothing but written reasons for the contemplated suspension shall suffice. [22] The legal standard in precautionary suspensions, as we have seen, is not strict specificity in writing; it is sufficient for an employee to be informed (whether in writing or verbally) of the reasons for his or her suspension. Disciplinary action short of dismissal J 2024/19 Maloisane v Judge President of the Labour Court and Others (J 2024/19) [2022] ZALCJHB 219 (11 August 2022) [85] From the record, the facts establish that the Applicant was subjected to a disciplinary hearing on the following allegations _(1) threatening supervisor and foreman that you will go to HR because you don’t agree with the company rules, (2) threatening supervisor and informing him that you already went to your union instead of following the correct procedure.[86] The disciplinary process resulted in the issue of a final written warning on 12 April 2019.[87] Subsequent to the filing an unfair labour practice dispute with the CCMA, the union was informed in writing on 17 May 2019 that the final written warning had been cancelled.[88] The commissioner was called upon to determine whether the alleged unfair labour practice had been committed and if so, he was required to determine the appropriate relief.[89] The fact that the final written warning had been cancelled does not detract from the fact that Applicant was subjected to a disciplinary process which resulted in the issue of a final written warning. The commissioner was required to look into this process and make a determination on whether it was fair or not.[90] Accordingly, the commissioner`s ruling that the CCMA does not have jurisdiction is reviewed and set aside. Promotion JR 590/20 Nomtshongwana v Commission for Conciliation, Mediation and Arbitration and Others (JR 590/20) [2022] ZALCJHB 254 (12 September 2022) [16] In Ncane v R Lyster NO,[[2017] 4 BLLR 350 (LAC) at paras 25 and 26.] the court outlined an approach to be taken by the commissioner when arbitrating disputes concerning unfair labour practice as defined in section 186(2)(a) and stated as follows:[25] When it comes to evaluating the suitability of a candidate for promotion, good labour relations expect an employer to act fairly but it also acknowledges that this is not a mechanical process and that there is a justifiable element of subjectivity or discretion involved. It is for this reason that the discretion of an arbitrator to interfere with an employer’s substantive decision to promote a certain person is limited and an arbitrator may only interfere where the decision is irrational, grossly unreasonable or mala fides. See on this Goliath v Medscheme (supra).[26] But where an employer provides that certain rules apply as regards the decision to promote or to recommend a candidate for promotion, e.g. as in this case, the candidate who scores the most points must be recommended by the panel, good labour relations requires an employer to be held to this. A failure to comply with the rules may result in substantive unfairness.[27] In the case where another person has been promoted to the post then the unsuccessful candidate must show that this is unfair. And as Wallis AJ (as he then was) said in Ndlovu v Commissioner for Conciliation, Mediation and Arbitration and Others: That will almost invariably involve comparing the qualities of the two candidates. Provided the decision by the employer is rational it seems to me that no question of unfairness arises [Footnotes omitted] [28] The employee challenged the commissioners finding that his assertion that he performed better in the psychometric assessment was misleading and a simplistic approach to the complexities involved in the psychometric assessment. The basis for this challenge was that it was not supported by evidence and was not preceded by proper evaluation and analysis of the psychometric assessment results, especially when he failed to state what complexities of the results were. Promotion JA 140/2021 Mashaba v University of Johannesburg and Others (JA 140/2021) [2022] ZALAC 116 (18 October 2022) [14]...The employer has a discretion to choose which one will be appointed. The court cannot interfere with that discretion unless it can be demonstrated that it was exercised capriciously or is vitiated by malice or fraud.[Department of Rural Development and Agrarian Reform v General Public Service Sectoral Bargaining Council and others [2020] 4 BLLR 353 (LAC) at para [23]. See also SAPS v Safety and Security Sectoral Bargaining Council and others unreported judgment case no P426/08 delivered on 27 October 2010 at para [41]. [15] The appointment and promotion of employees falls squarely within the domain of the employer, who has to effect the promotion in accordance with its requirements for the post. It is the employer who must select the best suitable candidate particularly where there is more than one candidate qualifying for the position.[SAPS v Safety & Security Sectoral Bargaining Council & others [2010] 8 BLLR 892 (LC) at paras [15] and [19] [20]; and Ndlovu v Commission for Conciliation, Mediation & Arbitration & others (2000) 21 ILJ 1653 (LC) at paras [11] [13]. [18] A promotion is a process commencing with the advertisement of the post followed by shortlisting and interviews. The interviewing panel makes recommendations to the employer to appoint a candidate they found to be suitable. In my view, it is highly improper and unfair for a candidate to let the process go to its finality without challenging it and only afterwards argue that the process was irregular. [59] It is now settled law that the payment of a performance bonus constitutes a “benefit” as contemplated by section 186(2)(a) of the LRA. JR701/2019 Adapt (Pty) Ltd v Maseko and Others (JR701/2019) [2023] ZALCJHB 5 (13 January 2023) "[60] It is furthermore trite that in employment law terms, and under the auspices of the unfair labour practice jurisdiction, there is no such thing as an unfettered discretion. The exercise of the discretion must always be subject to being tested against basic tenets of fairness[ Solidarity obo Oelofse v Armscor (SOC) Ltd and others, unreported judgment under case no JR 2004/15 delivered on 21 February 2018 at para 28.]. In Aucamp[(2014) 35 ILJ 1217 (LC) at paras 29 – 30.] it was stated: “Even if a benefit is subject to conditions and the exercise of a discretion, an employee could still, as part of the unfair labour practice proceedings, seek to have instances where the employee then did not receive such benefit adjudicated. So therefore, even if the benefit is not a guaranteed contractual right per se, the employee could still claim same on the basis of an unfair labour practice if the employee could show that the employee was unfairly deprived of same. An example would be where an employer must exercise a discretion to decide if such benefit accrues to an employee, and exercises such discretion unfairly.”" "[62] In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(2013) 34 ILJ 1120 (LAC) at para 28.] , the Court stated the following in relation to fairness: “... unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.”" [63] It follows that in those instances where an aggrieved employee wishes to challenge the exercise of an employer’s discretion in relation to the payment or calculation of a bonus, the employee would bear the onus of showing that the employer, in exercising such discretion, acted irrationally, capriciously, grossly unreasonably or mala fide. In those instances, where an employer is found to have exercised its discretion inconsistently in respect of different employees, or with a clear intention of favouring or prejudicing one employee over another, this would in all likelihood assist the aggrieved employee in the discharge of their onus. [65] Based on the above, I find that the applicant should have gone through the process of assessing the first respondent and explaining to her formally why she did not qualify for a salary increase and a bonus. Even if the first respondent would not have qualified for a salary increase and a bonus, the applicant’s failure to go through this process properly was unfair. Accordingly, I find that the applicant in exercising such discretion, acted irrationally and / or capriciously. [73] The first respondent’s salary increase and bonus are contractual claims. The CCMA did not have jurisdiction to have adjudicated the first respondent’s contractual claims as the first respondent’s earnings were above the threshold and thus the first respondent’s claims were precluded by section 73A (2) of the BCEA. [77]The second respondent in awarding the applicant compensation in respect of the unfair labour practice is reasonable but the amount was too much considering that the first respondent was dismissed for poor performance. The compensation amount in the award stands to be reviewed and set aside. The amounts awarded to the first respondent in respect of her salary increase and bonus stand to be reviewed and set aside as the CCMA lacked jurisdiction to determine these claims. instead of dismissing him for operational requirements, he be laid-off for a short duration, not same as suspension JR 790/22 Aminto Precast and Civil Engineering CC v CCMA and Others (JR 790/22) [2023] ZALCJHB 55; [2023] 6 BLLR 521 (LC) (17 March 2023) [5]...lacked jurisdiction over the matter since there was no suspension within the contemplation of section 186 (2) (b) of the LRA. "[6]...The LRA does not define the word suspension, an unfortunate situation in my view. It only defines what a dismissal is. Therefore, the word suspension must be given its ordinary grammatical meaning. Grammatically suspension means a temporary cessation or prevention. In an employment context, a suspension must mean temporary cessation of work or prevention from performing work. When an employee is placed on a suspension, such an employee would be without work for the duration of the suspension. [7] The term lay-off grammatically means discontinue; discharge (an employee) permanently or temporarily, especially owing to shortage of work. Indeed, there are some similarities between a suspension and a lay-off. In both, an employee becomes without work for a duration. However, what sets a lay-off apart is that it only happens in situations where there is a shortage of work. A suspension happens even in instances where there is no shortage of work." [8]...There are a number of alternatives that an employer may consider. One of the alternatives is that of a lay-off. [9]...They say an employee may be suspended as a holding operation pending a disciplinary hearing or may be suspended as a disciplinary sanction[3]. To my mind this two forms punted for by the authors is not contemplated by the legislature, in particular the second form. [10] In the same subsection the legislature refers to “or any other unfair disciplinary action short of dismissal in respect of an employee”. A suspension imposed as a disciplinary action is a disciplinary action short of dismissal. That being the case, it shall be tautologous, in my view, for the legislature to use the phrase “unfair suspension” together with “any other unfair disciplinary action”. Particularly where the word “or” is employed. The word ‘or’ is used to link alternatives and it can be used to introduce a synonym or explanation of a preceding word or phrase. It cannot be correct, in my view, to suggest that the phrase any other unfair disciplinary action seeks to explain the phrase unfair suspension. Amongst disciplinary actions short of dismissal lay, to my mind, demotion, transfer, warnings, lay-off, docking of a salary, depriving one of increment, bonuses, denial of breaks and many other work benefits. As long as those are effected in the stead of being dismissed. suspension (dismissal): relief sought has been overtaken by events and is now entirely academic JR 2827/2019 (B) Presidency of the Republic of South Africa and Another v Masete and Another (JR 2827/2019 (B)) [2023] ZALCJHB 188 (15 June 2023) [15]...given the fact of his subsequent dismissal, Mrwebi does not seek to have his suspension lifted, the primary relief that he originally sought. In these circumstances, there cannot be said to be a live controversy in relation to the arbitration proceedings that are the subject of review. Put another way, the relief sought has been overtaken by events and is now entirely academic. The application stands to be dismissed on that basis. 14] Mootness is when a matter no longer presents an existing live controversy and precludes courts from the inefficient utilisation of limited judicial resources by the granting of advisory opinions or abstract, hypothetical propositions of law. Having said that, mootness is not an absolute bar to the justiciability of a matter and a court has the discretionary power to entertain issues that are admittedly moot when the interests of justice so require (see Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exportation and Exploitation SOC Limited and Others 2020 (4) SA 409 (CC) at paras 47-48)). Demotion JR1544/19 Koma and Others v Member of the Executive Council (MEC): Gauteng Department of Agriculture and Rural Development and Others (JR1544/19) [2023] ZALCJHB 315 (8 November 2023) Job evaluation conducted and implemented at department – Implementation did not change position of employees – Position remained at same grade of level 8 – Employees raised grievance against decision not to grade them at grade level 10 – Employees must have right to particular grade and employer must diminish such right – No such right shown – Employees must show decision by employer not to promote – No such decision exists – No demotion shown to exist – Arbitrator considering all evidence rationally and reasonably – Arbitration award unassailable on review – Application dismissed – Labour Relation Act 66 of 1995, ss 145 and 158(1)(h). JA53/2022 Department of Higher Education and Training v Commissioner Bheki Smiza General Public Service Sectoral and Others (JA53/2022) [2024] ZALAC 5; [2024] 5 BLLR 447 (LAC) (22 February 2024) [9] To succeed in an unfair labour practice claim related to promotion usually requires an employee to prove that they were not given a fair opportunity to compete for a post.[8] This may involve evidence that the process was unfair and that despite the employee having the necessary experience, ability and technical qualifications for the post, an unfair appointment decision was taken.[9] An arbitrator is required by section 193(4) to determine an unfair labour practice dispute on terms that are deemed reasonable and may, where it is just and equitable, in terms of section 194(4), award compensation to an employee. JR 604/23 South African Airways (SOC) Limited v South African Cabin Crew Association obo Members and Others (JR 604/23) [2024] ZALCJHB 19; (2024) 45 ILJ 887 (LC) (5 January 2024) 72. SAA argued that the CCMA does not have general unfairness jurisdiction. Applicants referring an unfair labour practice dispute must therefore demonstrate that the dispute falls within that section. The scope of the types of conduct that could give rise to an unfair labour practice are specifically limited by section 186(2) of the LRA. Therefore, in order to have a cognisable claim under the section, the conduct complained of by the unions must involve one of the practices specified in paragraphs 186(2)(a) to (d) of the definition of “unfair labour practice”. Put differently, if the unions could not bring their complaint within one of the specific categories provided for in the definition set out in section186(2), they could not pursue an unfair labour practice dispute in the CCMA. "73. An unfair labour practice has three key elements. 73.1. The first element that must be established, is an unfair act or omission, that arises between an employer and an employee. The applicant in a dispute bears the onus of establishing this unfair act or omission. 73.2. The second element that must be established is that the employer must actually have done something the employees claim it should not have done, or refrained from doing (or refused to do) something the employees claim it should have done. 73.3. The third element is unfairness by the employer relating to promotion, demotion or the provision of benefits. Unfairness in this context is evidenced by arbitrary or capricious conduct on the part of the employer." 89. It is trite that the CCMA is a creature of statute and is not a court of law, and as a general rule, cannot decide its own jurisdiction. It can only make a ruling for convenience.[SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others] 91. The unions in their 7.11 referral, locate the ULP dispute in the retrenchment process. Properly considered the complaint about promotion, demotion, training and benefits, arising from the section 189A process, is a complaint about SAAs means to avoid dismissals and to mitigate the effects of anticipated dismissals. The CCMA has no jurisdiction over such a complaint. The unions have impermissibly morphed a dispute about the retrenchment process arising from section 189A into an ULP dispute to bring their dissatisfaction within the jurisdiction of the CCMA. The commissioner should have been alive to this and should have found that he had no jurisdiction to arbitrate the alleged ULP dispute, which had at it’s core, a challenge to section 189A, and not opportunistically section 186(2)(a). In Telkom SA Ltd v CCMA[46] the Labour Court held that an employee aggrieved by restructuring must challenge that as part of the s 189 process and may not proceed by way of an ULP. The commissioner had misconceived the nature of the enquiry and had no jurisdiction to entertain the dispute. 97. According to the Labour Court decision in SA Post Office Ltd v CCMA[49] only once an employee has established a right does the commissioner have the jurisdiction to entertain the dispute. In SA Post Office the employee could not establish that he had a right to an acting allowance (as a benefit), the dispute did not therefore constitute an arbitrable dispute of right, and it followed that the CCMA had no jurisdiction to entertain the alleged unfair labour practice dispute. 101. The commissioner committed a material error of law when he found that he had no power to dismiss the union’s referral without hearing the merits in a fully fledged arbitration. He had such power. Sections 138(1) and 138(9)(b) read with section 1(d)(iv) of the LRA gives him that power. Ferreira was the precedent setting case clarifying the legal position. Noting the extensive delay in proceeding with the matter, the poor preparation by the union, and the prejudice to SAA, he should have found that SAA had laid a factual basis for the dismissal of the unions’ claim, and furthermore that he had the power to do so. suspension JR 2825/22 Galogakoe v Commission For Conciliation, Mediation and Arbitration (JR 2825/22) [2024] ZALCJHB 322 (21 August 2024) "[10] As to the procedural fairness of the suspension, and the applicant’s complaint that he was not afforded an opportunity to make representations before he was suspended, the commissioner said this: In Long v SABC (sic) and others (2019) 40 ILJ 965 (CC) the Labour Court (sic) held that “where the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations. The consideration is that the employee must be paid his salary during the period of suspension” As such, any prejudice to (sic) [that] the applicant might have suffered was mitigated by the fact that he received his full salary. The applicant was charged with misconduct in an internal hearing and was subsequently suspended. His suspension was effected on 04 July 2022 and he resumed his duties on 12 July 2022, on full pay. [(2019) 40 ILJ 965 (CC); 2019 (5) BCLR 609 (CC) ; [2019] 6 BLLR 515 (CC) (19 February 2019)]" "Commissioner: [12] He then concluded that: The applicant was suspended subsequent to an incident where a client’s property was damaged. He was called to an enquiry and suspended, but was called back to work and had resumed his duties soon thereafter. The factors as stated (supra) do not apply in the circumstances surrounding the applicant’s suspension. The applicant was called into an enquiry as is the requirement in every workplace after any incident more so where it involved a client, whose security and safe-guarding of assets rested in the hands of the respondent It cannot be said that he suffered humiliation or indignity in that occurrence. Furthermore, the applicant had alleged a witch-hunt that the respondent was intent on perpetuating against him, but did not provide any other evidence in support of that claim." "[19] Where the suspension of an employee is effected contrary to the principles espoused in Long, namely where an employee is subjected to precautionary suspension (without pay), without being afforded the opportunity to make representations, such a suspension will be unfair. It will also be unfair, where the functionary who effected the suspension lacked the authority to do so[8]. And where an employee is suspended for an inordinately long period of time for no justifiable reason, it will also render the suspension unfair, as the existence of a justifiable reason, is a peremptory requirement for any suspension. [20] In the matter before me, the applicant alleged that his suspension was procedurally unfair because he was not afforded an opportunity to make representations, before he was suspended. In addressing that complaint, the commissioner relied on the authority in Long. I cannot fault the commissioner’s application of the law, as it now stands in Long. Where precautionary suspension is with pay, there is no requirement to afford the employee an opportunity to make representations, even if a policy directs otherwise." Bonusses JR 1425/2022 Independent Communications Authority of South Africa (ICASA) v Commission for Conciliation, Mediation and Arbitration and Others (JR 1425/2022) [2025] ZALCJHB 1 (9 January 2025) 17] Thus, where the employer claims that the payment of bonuses was discretionary or not a guaranteed right, the employee could still claim an unfair labour practice. This in circumstances where it can be demonstrated that the discretion was improperly exercised, resulting in unfairness, or where the employer in exercising its discretion, failed to meet an objective standard, or acted arbitrarily, capriciously and/or inconsistently[See Apollo at para 53; National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (CCT10/99) [1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 at para 11]. 16] Against the above, the starting point is section 186(2)(a) of the LRA[6]. In Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others[(2013) 34 ILJ 1120 (LAC); DA1/11) [2013] ZALAC 23 (21 February 2013) at para 48], the Labour Appeal Court held that ‘benefits’ within the context of section 186(2)(a) of the LRA included bonuses, and that the non-payment thereof could give rise to an unfair labour practice dispute. It was further held that even where the employer enjoys a discretion in terms of a policy or practice relating to the provision of benefits, such conduct will be subject to scrutiny by the CCMA in terms of section 186(2)(a) of the LRA[8]. [40] The difficulty however is that the CEO’s correspondence explaining the reasons why the performance bonuses were not paid, and that why it was decided to pay the ‘gratuity’ or performance rewards, formed part of the record before the Commissioner. Warning sanction JR2023/22 Samson v Commission for Conciliation, Mediation and Arbitration and Others (JR2023/22) [2025] ZALCJHB 13 (14 January 2025) 4.14 It was common cause that the applicant was not given a hearing before the warning was issued to her. Instead, Kallis testified that she had several prior conversations with the applicant regarding her alleged non-performance.[10] Unfair Labour Practice Demotion JR1121/13 Supercare Services Group (Pty) Ltd v Olota N.O and Others (JR1121/13) [2025] ZALCJHB 19 (15 January 2025) "[14] It is necessary to consider the grounds of review in the context of our law on demotions and unfair labour practices. In Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services & others, the court, per Zondo JP (as he was then stated):[(2008) 29 ILJ 2708 (LAC)] “[88] I agree with counsel for the appellant that the mere fact that the appellant's rank and remuneration were not going to change does not mean that the transfer to Pollsmoor could not or did not constitute a demotion. I agree, too, that the status, prestige, and responsibilities of the position are relevant to the determination of whether or not a transfer in a particular case constitutes a demotion… [89] The appellant also did not consent to such demotion. In terms of the common law a demotion without the employee's consent is unlawful. In terms of the Labour Relations Act the demotion of an employee without his consent would be unfair…”" [15] In Builders Warehouse v Benade[9] at para 14 the appeal court stated: “The court a quo is correct that a dispute about an alleged unfair labour practice extends to “unfair conduct relating to demotion”. The fact that the parties have agreed that the aggrieved employee accepts demotion is not a complete defence because the ambit of this unfair labour practice is wider than this. The implementation of an agreement to accept demotion, may constitute an unfair labour practice.” Relying on this authority, this court held that consent itself did not imply waiver of the right to challenge the fairness of the demotion.[10] Accordingly, it is settled that consent on its own does not establish that the demotion was fair. "[16] It is well established that consultation, or negotiation, is required before a decision to demote an individual can be fairly taken. In Solidarity v Perishable Products Export Control Board & others[11] the court considered the CCMA matter between TOWU on behalf of Malan and Commuter Handling Services (Pty) Ltd[[2006] 3 BALR 327 (CCMA) ] and stated: “41] If a demotion is the sanction for misconduct, it was found that it should be preceded by a disciplinary hearing and the misconduct procedures which are normally applicable. If it is an alternative sanction to dismissal it stands to reason that the procedural standards for a hearing prior to dismissal should also be complied with where the outcome is demotion...” (own emphasis)" [17] The applicant contends that the transfer did not constitute a demotion, and the second respondent therefore had no jurisdiction to hear the dispute. The difficulty, for the applicant, is that the transfer easily meets the criteria for demotion. In brief, demotion contemplates the loss of benefits (remuneration) or status. Here, the employee was transferred to a position of lower status, and her remuneration was decreased. Both of these facts were common cause. At arbitration, the applicant conceded that her remuneration was reduced, and in this application the applicant referred to the employee’s new position (after transfer) as a “lesser position.” In the circumstances, there can be no question that the employee was demoted, and the commissioner correctly assumed jurisdiction. (Complete)

Labour Law cases decided in the South African Courts (Highlights and updated 6 1997 to 12 2025 [Copyright: Marius Scheepers /16.1.1]) Varied topics: Administrative action, Administrative law, Collective agreement, Common law, Constitutional Law, Definition, Information, Interest dispute, Mutual interest vs rights issue, Nature of dispute, Parity principle, Protected disclosure act, Public Holidays Act 1994, Trade Union, Transfer of Employment, Unreasonable Delay Rule. Administrative action Employment Equity Plan J879/12 Solidarity v Minister of Safety and Security and Others (J879/12) [2016] ZALCJHB 15; (2016) 37 ILJ 1012 (LC); [2016] 5 BLLR 484 (LC) (26 January 2016) Equity plan not implemented contrary to s 27(2) of SAPS Act Use of national demographics not in breach of s 195(1) of the Constitution Promotion of Administrative Justice Act, 3 of 2000. J467/17 Sekano v Tiger Brands Ltd (J467/17) [2017] ZALCJHB 188 (6 March 2017) Gcaba v Minister of Safety and Security and others(2010) 31ILJ296 (CC) the law has been settled in favour of a single system of law, i.e. that created by the LRA. section 14(2) of the Employment of Educators Act[1] (the EEA) CA10/2018 Member of the Executive Council for the Department of Education Western Cape Government v Jethro N.O and Another (CA10/2018) [2019] ZALAC 38; [2019] 10 BLLR 1110 (LAC); (2019) 40 ILJ 2318 (LAC) (13 June 2019) [32] The respondent sought a review in terms of section 158(1)(h) of the LRA read with section 6 of PAJA. Section 158(1)(h) provides that the Labour Court may review any decision taken or act performed by the State in its capacity as employer, on such grounds that are permissible in law. Section 6 of PAJA permits any person to institute proceedings in a court or tribunal for the judicial review of an administrative action on various grounds if, inter alia, the action was taken irrationally, in bad faith, arbitrarily or capriciously. The respondent relied on various grounds specified in PAJA, but most relevantly: i) section 6(2)(f)(ii) of PAJA on grounds that the action was not rationally connected to the purpose of the empowering provision, the information before the administrator and the reasons given; and ii) sections 6(2)(e)(v) and (vi) of PAJA on grounds that the action was taken in bad faith, arbitrarily and capriciously. Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2005 (6) SA 313 (SCA) the Equality Report suggests that socio-economic needs be considered within designated, vulnerable groups. In other words, affirmative action should continue to be implemented on the basis of race, gender and disability, given the persistence of current patterns of economic inequality. However, special measures should be targeted at vulnerable groups within apartheid-era classifications so as to recognise multiple forms of disadvantage that they continue to experience. In this context, the report recommends that the EEA be amended to target more nuanced groups on the basis of need, taking into account social and economic indicators. J3092/18 Solidarity v Minister of Labour and Others (J3092/18) [2019] ZALCJHB 277; [2020] 1 BLLR 79 (LC); (2020) 41 ILJ 273 (LC) (8 October 2019) the South African Human Rights Commission (SAHRC), issued a report entitled Achieving substantive economic equality through rights-based radical socio-economic transformation in South Africa (the Equality Report)...The report concludes, amongst other things, that the definition of designated groups in the EEA (broadly, the categories of persons who are beneficiaries of the affirmative action measures established by the EEA) is not in compliance with constitutional or international law obligations, and recommends that the EEA be amended to target more nuanced groups on the basis of need, and taking into account social and economic indicators. Solidarity seeks only to have the findings and recommendations of the Equality Report given legal recognition and effect, at least until any reviewing court sets them aside. That being so, the court is not concerned with a direct challenge to the constitutionality of s 42 of the EEA [27] In summary: There is no statutory or other regulatory provision that renders the Equality Report binding on government or any other party. The SAHRC itself does not intend the Report to be binding; it is a research report intended to contribute to the public discourse and to provide advice and guidance to government in fulfilling its constitutional obligations. Since the Equality Report is not binding on government or any other party, it follows that there is no basis on which this court is empowered to confirm or otherwise enforce the report’s findings and recommendations for the purpose sought by Solidarity, or for any other purpose. jurisdiction ito section 1 of PAJA JR496/17 Department of Education: Gauteng v Education Labour Relations Council and Others (JR496/17) [2021] ZALCJHB 392 (19 October 2021) [24] It is apparent from the above authority that section 6 of EEA does not only provide for the powers the employer has in relation to the appointments, promotion and transfers of educators but also for the procedure to be followed in doing so. It is further apparent that the appointments made by the Head of Department of Education were plainly the result of an 'administrative action' as defined in section 1 of PAJA. [25] The law is clear that the administrative decisions may only be subjected to judicial review in a Court or tribunal.[6] The Court is defined in section 1(iv) of PAJA as:(a) the Constitutional Court acting in terms of section 167(6)(a) of the 30 Constitution; or(b) (i) a High Court or another court of similar status; or(ii) a Magistrates Court, either generally or in respect of a specified class of administrative actions, designated by the Minister by notice in the Gazette and presided over by a magistrate designated in writing by the Minister after consultation with the Magistrates Commission.[26] Section 1(xiii) of PAJA defines the tribunal as any independent and impartial tribunal established by national legislation for the purpose of judicially reviewing an administrative action in terms of PAJA.[27] In the current matter, although the dispute was referred in terms of 186(2) of the LRA and the arbitrator described it as such, it is apparent from the reading of his award that what the arbitrator did was to review, set aside and substitute the decision of the applicant. This, is confirmed by the portion where the arbitrator states as follows: the arbitration is not the review of the process or the hearing de novo but a review of the employers decision[7][28] To an extent that the applicants decision sought to be challenged by the third respondent at the arbitration was the result of an administrative action as defined in s 1 of PAJA and further that the first respondent is not a Court or a tribunal as defined in PAJA, it follows that the arbitrator had no jurisdiction to review the applicants decision. As such, his award falls to be set-aside only on this ground. [21] The first ground on which the arbitrators award was challenged was that he failed to give due consideration to sections 6(3) and 7(1) of the EEA. It is appropriate, at this point to set out the provisions in question. labour disputes do not amount to administrative actions JR1157/20 NTEU obo Moeketsi v The CCMA and Others (JR1157/20) [2022] ZALCJHB 226 (16 August 2022) [28] It is by now settled law that labour disputes do not amount to administrative actions [Gcaba v Minister for Safety and Security and others (2010) 31 ILJ 296 (CC) and Chirwa v Transnet Limited and others 2008 (4) SA 367 (CC).]. Therefore, it is entirely inappropriate, in my view, to infuse into the LRA administrative law principles. It ought to be remembered that the dispute resolution bodies envisaged in the LRA do not function like Courts. They are not possessed with judicial review powers like the Courts do. Even section 7 (2) (a) (b) (c) of the Promotion of Administrative Justice Act (PAJA)[Act 3 of 2000.] does not deprive a Court of its review jurisdiction. A Court may direct a party to first exhaust internal remedies before it can review any administrative decision. Section 7 (1) (a) of PAJA expressly provides that the 180 days commence to run after the internal remedies are concluded. The LRA has no similar provisions. action of dismissal by State does not constitute administrative action J 1615/21 Leshabane v Minister of Human Settlements and Others (J 1615/21) [2023] ZALCJHB 341 (1 December 2023) Dismissal – principle of legality – applicant relying on principle of legality to challenge dismissal – action of dismissal by State does not constitute administrative action – employee in public service still obliged to follow dispute resolution processes under LRA – basis for relief sought by applicant not competent S 158(1)(h) of LRA – requires review application – applicant not seeking to review decision – relief under s 158(1)(h) not competent – section cannot be relied on in absence of review or where dispute resolution process under LRA available Administrative law PAJA JA103/2015 Minister of Labour and Another v Public Services Association of South Africa and Another (JA103/2015) [2017] ZALCJHB 23 (25 January 2017) Ministers reversal of designation of official as registrar of labour relations appointed in terms of S108(1) of the Labour Relations Act,no.66 of 1996 administrative action and reviewable in terms of the Promotion Of Administrative Justice Act, no.2 of 2000, Alternatively, the principle of legality in the constitution not established that registrar had duty to brief minister concerning specific matter registrar was dealing with in exercise of functions Registrar nevertheless found to have adequately briefed minister----Reversal of designation In circumstances confirmed to have been irrational and invalid Decision also confirmed to have been procedurally Reinstatement to position of registrar appropriate remedy---Appeal of Minister against judgment and order of labour court dismissed with costs. PAJA JR2395/14 Minister of Public Service and Administration and Another v Public Servants Association obo Makwela and Others (JR2395/14) [2017] ZALCJHB 414 (6 April 2017) Public Servants Association of SA on behalf of de Bruyn v Minister of Safety and Security and Another (2012) 33 ILJ 1822 (LAC) at para 26. The supposition that public servants had an extra string to their bow in the form of judicial review of administrative action, ie acts and omissions by the state vis--vis public servants, evaporated when the Constitutional Court in Chirwa v Transnet Ltd & others, held that the dismissal of a public servant was not 'an administrative act' as defined in PAJA and therefore not capable of judicial review in terms of that Act. Any uncertainty regarding the interpretation of the Chirwa judgment was removed in the subsequent decision in Gcaba v Minister for Safety & Security & others. The result is that a public servant is confined to the other remedies available to him or her. section 17 of the PSA DA9/16 Gangaram v MEC for the Department of Health, Kwazulu-Natal and Another (DA9/16) [2017] ZALAC 38; (2017) 38 ILJ 2261 (LAC); [2017] 11 BLLR 1082 (LAC) (13 June 2017) Employee deemed dismissed in terms of section 17 of the PSA employee making representations for her reinstatement employer failed to respond employee implying that the failure to take a decision amount to a decision refusing her reinstatement susceptible to be set aside Held that the point of departure is whether the employee was properly deemed to have been dismissed that employer knew employees whereabouts as employee submitted leave forms as justification for each absence that in the absence of a refusal of the leave forms, employee rightly assuming that leave forms approved that the jurisdictional requirements for the employee to be deemed dismissed because of being absent for a period exceeding one calendar month without permission have not been satisfied, and as such there was no need for her to make representations in terms of s17(3)(b) for her reinstatement. Appeal upheld and Labour Courts judgment set aside employee reinstated retrospectively. Collective agreement Strike Unions members not prohibited from striking if agreement has not yet been extended to them in terms of s 32 31, 32 J1398/08 Bravo Group Sleep Products (Pty) Ltd & Another v CCEPAAWU & Others Remuneration Unfair discrimination increase to non-union members provided not join union D104/08 SAFDU v Safcor Freight (Pty) Ltd t/a Safcor Panalpina & Others Bargaining Council Arbitration Own employment policy Private Arbitration Les favourable: no conciliation; cost order ito sect 35 Arbitration act JA 52/10 National Bargaining Council for the Road Freight Industry and Another v Carlbank Mining Contracts (Pty) Ltd Was about the fairness of the dispensation and that issue could not be the subject of arbitration proceedings. C 381/12) Public Servants Association obo Strauss v Minister of Public Works NO and Others Bargaining council: ULP referral reduced from 90 to 30 days J2264/17 Appels v Education Labour Relations and Others (J2264/17) [2017] ZALCJHB 428; (2018) 39 ILJ 816 (LC) (7 November 2017) the key to a proper interpretation of s 51 (9) of the LRA is an understanding of the role of bargaining councils in the statutory dispute resolution system. Bargaining councils are voluntary bodies and operate according to the principles of self-regulation and autonomy. Having said that, bargaining councils are creatures of statute and may act only within the confines of the empowering legislation. The question to ask is whether s 51 (9), which clearly empowers bargaining councils to establish procedures to resolve any dispute, must be read subject to a condition that any agreed procedure must replicate time periods and any other limitations as they find reflection in the LRA. There is nothing in the LRA that establishes such a condition, or which otherwise places constraints on a bargaining council that agrees to establish dispute resolution procedures. On the contrary, there is at least one authority to support the proposition that bargaining councils may establish procedures that differ from those established by the LRA. [16]...This will ensure that procedures are rational, not arbitrary and free from caprice or ulterior purpose. The reasons proffered by the bargaining council for truncating the periods within which promotion disputes must be referred are obviously rational, intended as they are to serve the legitimate ends of minimising disruptions to learning and the expeditious resolution of disputes. MIBCO v Osborne & others [2003] 6 BLLR 573 (LC) However, section 51 (9) permits a bargaining council to exclude the operation of the LRA in the circumstances contemplated in that subsection, by establishing its own procedures by means of a collective agreement, which obviously can be extended to non-parties. The collective agreement, such as those to which I have referred in this judgement, circumvent the operation of the LRA. Wanenburg v Motor Industry Bargaining Council & others (2001) 22 ILJ 242 (LC) [20] Bargaining councils may design their own dispute systems in ways that ensure efficient and cost effect (sic) resolution and prevention of disputes. From the DRC terms of reference and procedures, there is nothing inherently prejudicial to non-parties. It provides a procedure for conciliation and arbitration of disputes and for granting combinations. It is consistent with the LRA. There is therefore no reason for the court to interfere by imposing any other procedure.[21] in the circumstances the DRC terms of reference and procedures can be applied to non-parties not as a collective agreement but as a procedure developed by the bargaining council for the industry in order to give effect to its obligations in terms of ss 51 (3) and 191 (2) in order to carry out its functions in terms of s 28 (1) (c) and (d).[23] Firstly, bargaining councils must be allowed the flexibility to design their own dispute systems so that the most inexpensive and effective procedures are adopted. If that means having a condonation application followed by an internal appeal, so be it. Even if the NRA makes no express provision for such an appeal, it would be consistent with the general policy of encouraging maximum use of private and internal dispute resolution mechanisms and the settlement of disputes at the lowest possible level. collective agreement that regulates organisational rights JA87/2015 South African Correctional Services Workers Union (SACOSWU) v Police and Prisons Civil Rights Union (POPCRU) and Others (JA87/2015) [2017] ZALAC 30; [2017] 9 BLLR 905 (LAC); (2017) 38 ILJ 2009 (LAC) (31 May 2017) On appeal: the decision of the Labour Court was set aside on the basis that s 20 provides that nothing in Part A of Chapter III, which must include a s 18(1) threshold agreement, precludes the conclusion of a collective agreement that regulates organisational rights. This accords with the recognition that minority unions are entitled to have access to the workplace so as to challenge the hegemony of majority unions, at least to represent their members. On the same basis, the deduction of trade union subscriptions for a limited period was permissible. The appeal was consequently upheld with costs. Section 24(1) DA1/2015 Hospersa obo Tshambi v Department of Health, KwaZulu-Natal (DA1/2015) [2016] ZALAC 10; [2016] 7 BLLR 649 (LAC); (2016) 37 (ILJ) 1839 (LAC) (24 March 2016) NUCW v Oranje Mynbou en Vervoer Maatskappy Bpk [2000] 2 BLLR 196 (LC) at paras 8 9 Whether a dispute about the application of a collective agreement, referred to in section 24(1) of the Act, would include the enforcement of a collective agreement when it is breached, is a further question which needs to be decided. Enforcement of an agreement only becomes an issue when there is some form of non-compliance with that agreement. When a party wishes to enforce the agreement it would be, at least interalia, because it believes the agreement is applicable to the party who is in breach thereof. Therefore a dispute about the application of a collective agreement (section 24(1) of the Act) applies to the situation where there is non-compliance with a collective agreement and one of the parties wishes to enforce its terms. Consequently, the CCMA, and not the Labour Court, should entertain disputes arising from the non-compliance with collective agreements. t seems plain that the notion of enforcement articulated by Revelas J was of a step that followed up on the applicability of the collective agreement being proven, rather than a facet of the notion of application. There is accordingly no need nor any justification to understand section 24in a sense so broad that any alleged breach of a term of a collective agreement means the dispute automatically falls within section 24. Different time periods from LRA JA19/18 Appels v Education Labour Relations Council (ELRC) and Others (JA19/18) [2019] ZALAC 49; [2019] 10 BLLR 985 (LAC); (2019) 40 ILJ 2284 (LAC) (10 July 2019) [5]...collective agreements concluded in bargaining councils that regulate dispute resolution should be given primacy because section 51 of the LRA empowers bargaining councils to establish procedures to resolve disputes and in doing so, to design their own procedures that address the exigencies of the sector for which they are registered and to ensure efficient and cost-effective dispute resolution, and that these procedures may deviate from those established by the LRA. freshold imposed by collective agreement JA40/2018 Murray and Roberts (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA40/2018) [2019] ZALAC 58; [2019] 11 BLLR 1224 (LAC); (2019) 40 ILJ 2510 (LAC) (20 August 2019) SACOSWU [2017] 9 BLLR 905 (LAC) Section 18 [28] In SACOSWU on appeal the majority in the Constitutional Court held that majority trade union parties (and employers) could not, by entering into private threshold agreements contemplated in section 18 of the LRA and which were not laws of general application, limit a trade unions (and accordingly its members) right to engage in collective bargaining.[15] Accordingly, such a private threshold agreement could also not preclude a minority trade union from bargaining with the employer about organisational rights. Section 18 of the LRA does not authorise majority unions and employers from determining which constitutional rights other unions, which were not parties to the threshold agreement, may exercise. Section 20 Section 20 of the LRA also declares expressly that nothing in part A of Chapter III (being the place in the LRA where section 18 is located) precludes the conclusion of a collective agreement that regulates organisational rights. Thus, not even a threshold agreement concluded between an employer and a majority union, or unions.[17] section 23 Although section 23 of the LRA is not located in the position of the LRA referred to in section 20, it also does not preclude a collective agreement between an employer and a minority union regulating organisational rights where there is an existing threshold agreement in place between an employer and a majority trade union regulating those rights.[18] organisational rights in section 12, 13 and 15 First, it may acquire those rights if it meets the threshold set in the collective agreement between the majority union and the employer. In that event, a minority union does not have to bargain before exercising the rights in question. Second, such a union may bargain and conclude a collective agreement with an employer in terms of which it would be permitted to exercise the relevant rights. Third, a minority union may refer the question whether it should exercise those rights to arbitration in terms of section 21 (8C) of the LRA. If the union meets the conditions stipulated in that section, the arbitrator may grant it organisational rights in the relevant provisions.[19] amendment not rectified JA11/17 Solidarity obo Members employed in motor industry v Automobile Manufacturers Employers Organisation (AMEO) and Others (JA11/17) [2019] ZALAC 63; [2020] 2 BLLR 142 (LAC); (2020) 41 ILJ 419 (LAC) (16 October 2019) agency shop agreement is a collective agreement which could be amended and not rectified - Rectification is a remedy designed to correct the failure of a written contract to reflect the true agreement between the parties to the contract. agency shop J1338/19 UASA and Others v Western Platinum Limited and Others (J1338/19) [2019] ZALCJHB 158; (2019) 40 ILJ 2405 (LC); [2019] 11 BLLR 1283 (LC) (24 June 2019) agency shop agreement invalid and unenforceable, agency shop agreement must expressly provide for matters prescribed by s 25(3) of the LRA Solidarity and Others v Minister of Public Service and Administration (J648/03) [2003] ZALC 122 (21 April 2004). In my view the agreement substantially complied with statutory requirements. However this does not make the agreement valid for reasons that the agency agreement interferes with a person’s constitutional right of freedom of association as contained in section 18 of Chapter 2 of the Bill of Rights. It therefore becomes an unfair labour practice to force the employee to join a trade union by making deductions on his salary to make him join the union. The legislature was aware of this and therefore sought to provide that the agreement should make provision for the fact that non-union members are not compelled to become members. This is a fundamental requirement necessary to make the agreement valid.[8] Solidarity and Others v Minister of Public Service and Administration jurisdiction: the Metal and Engineering Industries Bargaining Council (MEIBC) or within the jurisdiction of the Motor Industry Bargaining Council (MIBCO). PA6/19 National Union of Metalworkers of South Africa v Commission for Conciliation Mediation and Arbitration and Others (PA6/19; PR03/18 ; PR50/18) [2020] ZALAC 8; (2020) 41 ILJ 1629 (LAC) (18 February 2020) Agency fees deductible from employees identified in the collective agreement consonant with the Constitution and ILO recommendations. CA6/2019 Municipal and Allied Trade Union of South Africa (MATUSA) v Central Karoo District Municipality and Others (CA6/2019) [2020] ZALAC 20; (2020) 41 (ILJ) 1918 (LAC); [2020] 9 BLLR 896 (LAC) (28 May 2020) interpretation dispute: section 24 of the LRA is to resolve disputes where a party to an agreement is alleged to have been in breach of the provisions of that agreement by failing to interpret or apply its terms JR784/2016 Dioma and Another v Mthukwane N.O and Others (JR784/2016) [2020] ZALCJHB 138 (11 August 2020) [36] In accordance with the provisions of section 23 of the Labour Relations Act, 1995 (LRA) collective agreements are binding on the parties. The purpose of section 24 of the LRA is to resolve disputes where a party to an agreement is alleged to have been in breach of the provisions of that agreement by failing to interpret or apply its terms either correctly or at all.[20] The principles applicable to the resolution of such disputes are trite as restated in Western Cape Department of Health v Van Wyk & others.[(2014) 35 ILJ 3078 (LAC) at para 22. See also North East Cape Forests v SAAPAWU and others [1997] 6 BLLR 711 (LAC); Food and Allied Workers Union v Commission for Conciliation, Mediation and Arbitration & others (2007) 28 ILJ 382 (LC), at para 35] These are that: I. When interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of the collective agreement; ii. The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties. iii. A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement. iv. The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give to the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made;[22]v. The parol evidence rule when interpreting collective agreements is generally not permissible when the words of the memorandum are clear.vi. Collective agreements are generally concluded following upon protracted negotiations, and it is expected of the parties to those agreements to remain bound by their provisions. It therefore follows that such agreements cannot be amended unilaterally. interpreting the provisions of a collective agreement JR1619/19 City of Tshwane Metropolitan Municipality v South African Municipal Workers Union obo Members and Others (JR1619/19) [2021] ZALCJHB 307 (17 September 2021) Commercial Workers Union of SA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 90. The proper approach to the construction of a legal instrument requires consideration of the document taken as a whole. Effect must be given to every clause in the instrument and, if two clauses appear to be contradictory, the proper approach is to reconcile them so as to do justice to the intention of the framers of the document. It is not necessary to resort to extrinsic evidence if the meaning of the document can be gathered from the contents of the document.' a) When interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of the collective agreement; b) The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties. c) A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement. d) The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give to the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made; Association of Mineworkers and Construction Union and Others v Chamber of Mines of SA and Others (2017) 38 ILJ 831 (CC) at fn 28; Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) at para 18; Western Cape Department of Health v Van Wyk and Other (2014) 35 ILJ 3078 (LAC) at para 22; North East Cape Forests v SAAPAWU and Others [1997] 6 BLLR 711 (LAC); Food and Allied Workers Union v Commission for Conciliation, Mediation and Arbitration and Others (2007) 28 ILJ 382 (LC) at para 35. Section 77(3): claim for payment of salary. 77. Jurisdiction of Labour Court - (3) The Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract. JS523/19 Solidarity obo Radzilani v Eskom Holdings SOC Ltd (JS523/19) [2022] ZALCJHB 179 (6 July 2022) [81] In Rand Water v Stoop[7] the Labour Appeal Court rejected the contention that section 77(3) of the Basic Conditions of Employment Act[8] (BCEA) only permits the Labour Court to interpret the terms of an employment contract and interpret it, holding that this was unreasonable in view of the remedies the Labour Court may grant in terms of section 77A (e). Secondly, it was acknowledged that the word concerning in section 77(3)[9] conveyed cause and effect but, it was held, this does not imply that there was to be a direct or indirect link between the contract of employment and the claim. Closed shops and agency shops J 1457/2023 New Kleinfontein Goldmine (Pty) Ltd v Association of Mineworkers and Construction Union and Others (J 1457/2023) [2023] ZALCJHB 300 (24 October 2023) "[7] Closed shop agreements are defined as “agreements between an employer and a trade union requiring all employees covered by the agreement to be members of the union”.[2] [8] It is a collective agreement concluded between the majority union and the employer in which the employees covered by the agreement are obliged to become members of the majority union. [9] In Solidarity on behalf of Members Employed in the Motor Industry v Automobile Manufacturers Employers' Organisation & others[[2019] ZALAC 63; (2020) 41 ILJ 419 (LAC) at para 7.], the Labour Appeal Court (LAC) confirmed that: ‘Agency shop agreements are less intrusive than closed-shop agreements which compel employees to be members of majority trade unions. An agency shop agreement does not compel membership of the union but only requires employees who benefit from the fruits of collective bargaining achieved by the majority union to pay an agency fee.’ [10] In SA Transport & Allied Workers Union v Servest Security (Pty) Ltd—A Division of Servest Group & others[[2021] ZALCJHB 235; (2022) 43 ILJ 426 (LC) at para 26.], the court described closed shop agreements as “inherently the strongest form of union security arrangements designed to address the problem of ‘free riders’ from unduly benefiting from the efforts put into collective bargaining by a trade union which is party to the closed shop agreement”. The purpose of such an arrangement, like that of an agency shop, is to promote stable and orderly collective bargaining. The closed shop achieves this objective by stabilising union membership, limiting the proliferation of unions, removing tensions in the workplace and requiring the union to be responsible for all employees in the workplace.[5]" “contractual to the holder” and “personal to the holder” are defined. DA 22-21 Kwadukuza Municipality v Lutchman and Another (DA 22-21) [2024] ZALAC 22 (2 May 2024) ‘The terms “contractual to the holder” and “personal to the holder” are defined. They appear at least to mean that the employee will not suffer a reduction in salary or other benefits, which could happen in the case of a demotion on other grounds…’ [36] In coming to her conclusion on the definition of CTI, Rabkin-Naicker J referred to the judgment of Pretorius v Rustenburg Local Municipality And Others[ [2007] ZALAC 15; (2008) 29 ILJ 1113 LAC at para 34.] where the definition of CTI or CTH and PTH (Personal to Holder) were defined as follows: closed shop: prevent Servest Security from deducting agency fees from its members J806/21 South African Transport & Allied Workers Union v Servest Security (Pty) Ltd and Another (J806/21) [2024] ZALCJHB 120; (2024) 45 ILJ 1308 (LC) (14 March 2024) [1] What are the legal requirements for validity of a closed shop agreement? Does a contractual provision requiring membership of a trade union (as a prerequisite for the validity of the employment contract) result in a pre-entry closed shop agreement prohibited in terms of section 26(3)(c) of the Labour Relations Act (LRA)?[1] May an employer deduct agency fees from employees belonging to a trade union absent a provision in the closed shop agreement permitting such deduction? These and other interesting questions arose during the course of the present dispute. [80] This takes us from the safe harbour of a post-entry closed shop into the forbidden land of the pre-entry closed shop. The closed shop landscape at Servest (the collective agreement read with the employment contract template) may not impose any union membership restriction on the application for jobs, but it imposes it as a condition on the making of the contract of employment. It does not make it incumbent on every worker to join the trade union (within a stated period after having taken up the job), but instead makes union membership a condition for the making or conclusion of the contract of employment, not merely a term of the employment contract. This is the prohibited area identified by Kahn-Freund and the restriction on closed shops imposed by the legislature in section 26(3)(c) of the LRA. 41] Section 26(7) envisages that there may be employees who, even where they are not required to pay trade union membership fees, would remain in service of the employer despite refusing to join the trade union.[31] These employees would then have to pay an agency fee. The provisions pertaining to an agency fee are incorporated in section 26 by means of section 26(8).[32] [48] If it were correct that the terms of a Collective Agreement which was cancelled by one of the parties thereto continued to live on through the contracts of employment into which they were incorporated, this would in effect render the provisions of Section 23 (4) redundant, which could not have been intended by the Lawmaker. This would also hamper orderly collective bargaining rather than promote it. JR266/22 Public Servants Association of South Africa and Others v Commission for Conciliation Mediation and Arbitration and Others (JR266/22) [2024] ZALCJHB 255; [2024] 10 BLLR 1087 (LC) (8 July 2024) 52] In the wake of the Imperial decision referred to above, it appears to me that where a Collective Agreement is cancelled by one of the parties to such agreement, this has the effect that the terms of the cancelled / terminated Collective Agreement, do not live on through the contracts of employment into which they were incorporated. This position gives full effect to the provisions of section 23(4) of the LRA and accordingly promotes collective bargaining. (Imperial [2017] 12 BLLR 1189 (LAC).) [61] In the matter of Apollo tyres[5] the Court unanimously held that the term 'benefit' means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or privilege, subject to the employer's discretion. [18] Section 73A finds application in relation to payment related disputes, but not when the parties are also in dispute about the interpretation or application of a collective agreement. JS489/2022 Nhlapo v Department of Health Free State (JS489/2022) [2024] ZALCJHB 498 (10 December 2024) Locus Standing JR874/22 Skhosana v Commission for Conciliation, Mediation and Arbitration and Others (JR874/22) [2025] ZALCJHB 23; [2025] 6 BLLR 633 (LC); (2025) 46 ILJ 1019 (LC) (9 January 2025) [26] There is Labour Court authority which supports the view that only parties to a collective agreement may refer disputes on the interpretation or application of the collective agreement: "26.1. In Arends and others v SA Local Government Bargaining Council and others (Arends LC)[8], Moshoana AJ (as he then was) held that “party to a dispute” in sections 24(2) and (5) of the LRA meant only the parties to the collective agreement; if the Legislature intended to allow individual employees to refer disputes about collective agreements, it would have not used the word “parties”, but rather “employee/s”. He concluded that employees bound by collective agreements are not parties but beneficiaries and therefore cannot make referrals under sections 24(2) and (5) of the LRA. Moshoana AJ continued to explain how individual employees could invoke collective agreements through individual rights disputes: ‘For non-parties, a collective agreement may serve as evidence of a particular contended right. In such instance, if interpretation arises, it becomes an issue in a dispute and not the dispute.’[9] 26.2. In South African Police Services v Du Preez and Others In Re: Du Preez v South African Police Services, (Du Preez)[10] Moshoana J reaffirmed his position in Arends LC. Although Arends LC was taken on appeal and the Labour Court decision overturned, Moshoana J reasoned that: ‘On appeal, the LAC did not upset the above finding. By necessary implication, the findings were approved by the LAC.’ 26.3. This approach was followed in other cases, including recently in Minister of Justice and Constitutional Development v DS Panza and Others, which expressly relied on Du Preez.[11]" [31] Finally, I am persuaded by the text of the LRA which distinguishes in section 24 between a “party to a collective agreement” and a “party to a dispute” over the interpretation or application of the collective agreement: An individual who disputes the interpretation or application of a collective agreement therefore is entitled to refer that dispute to the CCMA, because they are the party to the dispute.[19] 32] I therefore find that the commissioner erred in finding that Mr Skhosana lacked standing to refer a dispute over the interpretation or application of a collective agreement because he was an individual: an individual is not automatically precluded from referring such a dispute. (Even if Arends LC and Du Preez were correct, they hold that only parties to a collective agreement may refer a dispute about the interpretation or application of a collective agreement. The commissioner did not give effect to this position in simply asking each party, “What do you understand by collective?” and ending his inquiry when they both responded that it is a group. [34] The Constitutional Court has held that “in determining a litigant’s standing, a court must, as a matter of logic, assume that the challenge the litigant seeks to bring is justified”.[20] Assuming then that Mr Skhosana’s interpretation of the Recognition Agreement has merit, it cannot be denied that he was adversely impacted by Eskom’s interpretation of it. This gives him standing. interpretation and application of JR239/20 Mantsopa Local Municipality v Samwy obo Tsekoe and Others (JR239/20) [2025] ZALCJHB 34 (30 January 2025) "[17] Our Courts have laid down the principles and considerations applicable to the resolution of disputes concerning the interpretation and application of collective agreements. This Court, per Tlhotlhalemaje J, in BIFAWU obo Members v Commission for Conciliation, Mediation and Arbitration and Others[7] (BIFAWU) aptly summarised the applicable principles as follows - ‘[15] In accordance with the provisions of section 23 of the LRA, collective agreements are binding on the parties. The purpose of section 24 of the LRA is to resolve disputes where a party to an agreement is alleged to have been in breach of the provisions of that agreement by failing to interpret or apply its terms either correctly or at all. The principles applicable to the resolution of such disputes are trite as restated in Western Cape Department of Health v Van Wyk and Others. These are that; i. When interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of the collective agreement; ii. The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties. iii. A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement. iv. The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made; v. The “parole evidence” rule when interpreting collective agreements is generally not permissible when the words of the memorandum are clear. vi. Collective agreements are generally concluded following upon protracted negotiations, and it is expected of the parties to those agreements to remain bound by their provisions. It therefore follows that such agreements cannot be amended unilaterally.’" 16.1.1 interpretation CA20/24 Sugar Berry CC t/a Horison Staff Solutions v Motor Industry Bargaining Council and Others (CA20/24) [2025] ZALAC 48 (2 October 2025) [33] More than a decade ago this Court has held that a collective agreement concluded in terms of the LRA is not an ordinary contract. Therefore, the context within which such an agreement operates is different from that of a commercial contract. Collective agreements operate within the framework established by the LRA and the interpretation thereof ought to be approached with the objects and purpose of the LRA in mind.[22] "37] In eThekwini Municipality (Health Department) v Independent Municipal & Allied Trade Union on behalf of Foster & others,[(2012) 33 ILJ 152 (LAC).] this Court held that a collective agreement must be interpreted “in such a manner as to ensure effective and sound industrial relations”.[26] Further, in Western Cape Department of Health v Van Wyk and others,[[2014] 11 BLLR 1122 (LAC); (2014) 35 ILJ 3078 at para 22.] this Court held: ‘In interpreting the collective agreement the arbitrator is required to consider the aim, purpose and all the terms of the collective agreement. Furthermore, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract. Since the arbitrator derives his/her powers from the Act he/she must at all times take into account the primary objects of the Act. The primary objects of the Act are better served by an approach that is practical to the interpretation and application of such agreements, namely, to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to all the parties.’ " [38] It must be emphasised that when interpreting a collective agreement, one must bear in mind that it is not like a commercial contract where a degree of primacy is placed on contractual autonomy, in the form particularly of the intention of the parties. When a collective agreement is interpreted, values based on the social character of the agreement are relevant. To this end, the emphasis is always on the objects and purposes of the LRA. Common law Buthelezi relied on his common law rights and not on an alleged unfair dismissal and therefore the Labour Court had jurisdiction to hear the matter and grant relief. JA 19/03 National Electronic Media Institute of South Africa v Buthelezi, Nkanyiso Contract of employment; No need common law since LRA; Apply common law save where conditions about unfairness dismissal Only claim for reasonable notice C657/09 Moloto v City of Cape Town Probation procedure: hearing JR628/13 Frank v Commission for Conciliation, Mediation and Arbitration and Others (JR628/13) [2017] ZALCJHB 9 (17 January 2017) A hearing in the circumstances does not entail a disciplinary hearing as one will expect in a case of misconduct, which the applicant contends his was the case, which contention has no merit in law or fact. s 158(1B) of the LRA J2055/19 South African Broadcasting Corporation (SOC) Limited v Commission for Conciliation Mediation and Arbitration and Others (J2055/19) [2019] ZALCJHB 318; (2020) 41 ILJ 493 (LC) (18 October 2019) [12] ... The definition of dismissal in s 186 of the LRA expressly includes circumstances where the employer has terminated employment with or without notice. Whether the employer casts the termination in the contractual language of acceptance of the repudiation of a contract of employment and an election to cancel the contract, this is no more or no less than a termination of employment, with or without notice (i.e. a summary termination), which in turn, by definition, constitutes a dismissal for the purposes of s 186. "[11] To the extent that Mr. van As, who represented the SABC, urged me at least to issue a directive in any ruling that I make that commissioner Du Plessis hear evidence on the jurisdictional point, something that the SABC says that he has refused to do. I fail to appreciate how such an order can be made in the context of what amounts to an application to stay an arbitration hearing pending a review of a jurisdictional ruling made by another commissioner. Control over arbitration proceedings (and the basis on which evidence is led) is best left to the presiding commissioner. It is not the function of this court to micro-manage arbitration hearings and issue directions to commissioners as to how they should conduct a hearing. In any event, as I have observed, some jurisdictional points (particularly those concerned with whether the referring party is an employee as defined in the LRA or whether any termination of employment constituted a dismissal) are best determined once all the evidence is in they need not be the subject of a discrete enquiry." [11] To the extent that Mr. van As, who represented the SABC, urged me at least to issue a directive in any ruling that I make that commissioner Du Plessis hear evidence on the jurisdictional point, something that the SABC says that he has refused to do. I fail to appreciate how such an order can be made in the context of what amounts to an application to stay an arbitration hearing pending a review of a jurisdictional ruling made by another commissioner. Control over arbitration proceedings (and the basis on which evidence is led) is best left to the presiding commissioner. It is not the function of this court to micro-manage arbitration hearings and issue directions to commissioners as to how they should conduct a hearing. In any event, as I have observed, some jurisdictional points (particularly those concerned with whether the referring party is an employee as defined in the LRA or whether any termination of employment constituted a dismissal) are best determined once all the evidence is in they need not be the subject of a discrete enquiry. if a litigants cause of action is a breach of an obligation provided for in the LRA, the litigant as a general rule, should seek a remedy in the LRA; Jurisdiction Labour Court J1849/2019 DEMAWUSA and Others v City of Johannesburg (J1849/2019) [2019] ZALCJHB 368; (2020) 41 ILJ 912 (LC); [2020] 6 BLLR 574 (LC) (7 November 2019) Steenkamp & others v Edcon Ltd (National Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC). [137] The second basis for my conclusion is that the applicants appeal should be dismissed is a principle that, for convenience, I call LRA remedy for an LRA breach. The principle is that, if a litigants cause of action is a breach of an obligation provided for in the LRA, the litigant as a general rule, should seek a remedy in the LRA. It cannot go outside of the LRA and invoke the common law for a remedy. A cause of action based on a breach of an LRA obligation obliges the litigant to utilise the dispute resolution mechanisms of the LRA to obtain a remedy provided for in the LRA. They clearly frame their claim on the basis of what they allege to be an unlawful suspension, and an unlawful deduction from remuneration, on the basis respectively of the breach of the collective agreement and s 34 of the BCEA. [7] The effect of this judgment is that when an applicant alleges that a dismissal is unlawful (as opposed to unfair), that applicant has no remedy under the LRA and this court has no jurisdiction to make any determination of unlawfulness. If a remedy is sought under the LRA, the applicant must categorise the alleged unlawfulness as unfairness. Mayo v Bull Brand Food (Pty) Ltd (2010) 31 ILJ 951 (LC) and Indwe Risk Services (Pty) Ltd v Hester Petronella van Zyl (2010) 31 ILJ 956 (LC) [15] Turning next to the applicants claim of unlawful deductions, that claim must suffer a similar fate. The applicants base their claim on a breach of s 34 of the BCEA. That Act establishes its own mechanism for enforcement, one that requires (in most instances) that a complaint be lodged with a labour inspector. This court exercises a supervisory jurisdiction in respect of appeals form decision made ultimately by the director-general, or arbitration award issued by the CCMA. Absent a claim in contract, this court lacks jurisdiction to enforce the provisions of the BCEA as a court of first instance. [16] In summary: the applicants claim of an unlawful suspension is not a claim contemplated by the LRA, and neither that Act nor any other statute confers jurisdiction on this court to make a determination of the lawfulness or validity of a suspension. In any event, the true nature of the suspension dispute is one that concerns the application of a collective agreement, a dispute that must be arbitrated. The claim of unlawful deductions from remuneration is one that must be pursued in terms of the enforcement mechanisms of the BCEA. Given my conclusion that in respect of both legs of the applicants claim this court lacks jurisdiction, it is not necessary for me to consider whether the applicants have been the requirements for final interdictory relief. a remedy against unfair dismissal was to supplement common law rights of an employee whose employment might be lawfully terminated and that there could be no suggestion that either the new constitutional dispensation or the LRA deprived employees of the common law rights to enforce the terms of a fixed term contract of employment. J 571/2021 Tsekedi v Masilonyana Local Municipality (J 571/2021) [2021] ZALCJHB 96 (4 June 2021) Fedlife Assurance Ltd v Wolfaardt (2001) 22 ILJ 2407 (SCA), the Supreme Court of Appeal held that the clear purpose of the introduction of a remedy against unfair dismissal was to supplement common law rights of an employee whose employment might be lawfully terminated and that there could be no suggestion that either the new constitutional dispensation or the LRA deprived employees of the common law rights to enforce the terms of a fixed term contract of employment. At paragraph 17 of the judgment, the court concluded as follows: The 1995 Act does not expressly abrogate employees common law entitlement to enforce contractual rights and nor do I think that it does so by necessary implication. On the contrary there are clear indications in the 1995 Act that the legislature had no intention of doing so. And further, at paragraph 22:In my view chapter VIII of the 1995 Act is not exhaustive of the rights and remedies that accrue to an employee upon the termination of a contract of employment. Whether approached from the perspective of the constitutional dispensation and the common law or merely from a construction of the 1995 Act itself I do not think the respondent has been deprived of the common law rights that he now seeks to enforce. A contract of employment for a fixed term is enforceable in accordance with its terms and an employer is liable for damages if it is breached on ordinary principles of common law. [22] Fedlife concerned a claim for contractual damages but the above claim is no less valid in respect of an election to enforce the terms of an employment contract. This court has made clear on many occasions that subject to its discretion, the remedy of specific performance is available to an aggrieved party in the event of a material breach of an employment contract. (See also Makhanya v University of Zululand 2010 (1) SA 62 (SCA) and more recently, Archer v Public School-Pinelands High School & others (2020) 41 ILJ 610 (LAC) where the court affirmed, at paragraph 22 of the judgment, that the impact of section 77 (3) of the BCEA is that employees are free, in addition to pursuing the rights in terms of the LRA, to pursue claims in the High Court on this court arising from their contracts of employment.) wrongful termination: The limited damages rule JS1037/2019 Maseko v South African Post Office (JS1037/2019) [2021] ZALCJHB 385 (20 October 2021) [12] The Labour Appeal Court in dealing with the limited damages rule summarise the common law position in National Entitled Workers Union v CCMA:[(2007) 28 ILJ 1223 (LAC) para 15] ."Under common law the employer's position was very strong as against an employee. If an employee was dismissed lawfully, egg if he was given proper notice of termination of his contract of employment or if he was paid notice pay in lieu of notice, the employee had no remedy in law even if the employer had no reason to terminate the contract of employment or if the dismissal was very unfair. The courts could also not provide any remedy in that situation. If the contract of employment was terminated unlawfully, generally speaking, the only relief that the courts could provide such employee was to award the employee damages which would be equivalent to the notice pay he would have been paid in lieu of notice." (Own emphasis) [13] This is authority for the proposition that as long as the employer gives contractual notice of termination, or pays wages in lieu of notice, there is no recognised claim in law. It goes further to say that even if the employment contract is unlawfully terminated as alleged by the applicant, the employee's remedy is limited to damages equal to what he would have earned during the contractual notice period. [14] The Labour Court followed this reasoning in S A Music Rights Organisation Ltd v Mphatso:[(2009) 30 ILJ 2482 (LC) at para 17]" This approach reflects the conclusion that the purpose of damages for wrongful dismissal is only to protect the worker's interest in remuneration and benefits for the denied period of notice or the unexpired fixed term, and that its quantification is to be conducted on the assumption that the worker's pecuniary losses are limited to that remuneration and those benefits." [15] However, in Harper v Morgan Guarantee Trust Co of New York, Johannesburg[2003 JOL 11932 (W) at para 5.2] the Court per Flemming DJP held as follows:"5.2.1 The principles are part also of our law. In Mustapha v Receiver of Revenue 1958 (3) SA 343 (A) at 358F it was said that in the case of a contract, a party's "reasons or motives for exercising an admitted right of cancellation of that contract are normally irrelevant". The result that the employee ends up with what he would have had if the employer had stayed within his legal right to terminate by notice was stated in Grundlingh v Beyers 1967 (2) SA 131 (W) at 142; Langeni v Minister of Health and Welfare 1988 (4) SA 93 (W) at 101C.5.2.2 If in a specific case the right to give notice may only be exercised within some limitation, it would be for the plaintiff to prove and therefore to plead such a term (Carr v Jockey Club of South Africa 1976 (2) SA 717 (W) at 728, 729). Plaintiff has not pleaded that her employer's "discretion" a misguiding word was a fettered one". [16] Flemming DJP also cited with approval the decision of the House of Lords in Johnson v Unisys Ltd[(2001) UKHL 13] where Lord Hoffman concluded that: “The action for wrongful dismissal could therefore yield no more than the salary which should have been paid during the contractual period of notice."[17] Flemming ADJP also cited with approval Wallace v United Grain Growers Ltd[(1997) 152 DLR (4th) 1] where the Court held that: “The action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the relationship (or pay in lieu thereof) in the absence of just cause for dismissal A "wrongful dismissal" action is not concerned with the wrongness or rightness of the dismissal itself. Far from making dismissal a wrong, the law entitles both employer and employee to terminate the employment relationship without cause. A wrong only arises if the employer breaches the contract by failing to give the dismissed employee reasonable notice of termination. The remedy for this breach of contract is an award of damages based on the period of notice which should have been given." [21] In Volschenk v Pragma Africa (Pty) Ltd[7] the employee claimed that his employer was in breach of contract with regard to the payment of commission and in other respects. The employee elected to terminate the contract of employment on notice. He then initiated a claim, inter-alia, for payment of damages in respect of future loss of earnings for the period of twelve months. The court held that as the employee terminated the contract on two months' notice, worked during the two months and was paid for the two-month period the employee had suffered no loss as a loss would only have been in respect of the notice period if the employee had not been paid during that time.[22] The Volschenk-matter is on all fours with the case in casu. [23] In BMW (SA) (Pty) Ltd v National Union of Metalworkers of SA[(2020) 41 ILJ 1877 (LAC)] the employee was given notice to retire at the age of 60 while the Court found that he had exercised an option to remain on a retirement age of 65 but that BMW had failed to record his election and incorrectly retired him at 60. His actual retirement age remained 65.[24] The unilateral change to the retirement age constituted a repudiation which the applicant accepted, and which constituted an automatically unfair dismissal as the dismissal was based on age discrimination. The LAC held that the employee was entitled, as he claimed, for compensation for the automatically unfair dismissal and for damages in respect of the unfair discrimination. In his cross-appeal before the LAC the employee also claimed contractual damages.[25] The LAC had the following to say:"[ 71] However, even if this court were inclined to find that Mr Deppe has succeeded in proving that BMW repudiated his employment contract by amending his retirement age from 65 to 60 without his consent, Mr Deppe would only be entitled to contractual damages in the amount of one month's notice in terms of his contract of employment. His damages are limited to the position he would have been in, under the contract, had the breach not occurred. Mr Deppe's contractual claim for five years' damages, therefore, is misplaced as Mr Deppe's contractual claim for wrongful termination of employment is limited to one month's notice pay."[26] The limited damages rule clearly applies to the applicant's contractual claim for wrongful termination, that is a repudiation accepted by the applicant. Unlawful dismissal J569/22 National Education Health and Allied Workers Union v University of South Africa (J569/22) [2022] ZALCJHB 162 (21 June 2022) Unlawful dismissal section 158(1)(a)(iv) of the LRA the Labour Court has no jurisdiction to declare the dismissal of employees unlawful. section 77(3) of the BCEA breach of contract contractual terms sought to be vindicated must be plainly pleaded. Where the employer availed itself to its contractual right to terminate the contract of employment, a breach of contract claim by the employees is not justiciable under section 77(3) of the BCEA. delictual claim JS501/2021 WILLIAM STANLEY OWEN O'BRIEN and HEAVEN SENT GOLD SOUT [10] The submission on behalf of the respondent is that the applicant's claim, being a delict, arises not from a contract of employment but a breach settlement agreement. In amplification of the argument,...court to consider the five elements of delict dismissals were unlawful JA78/21 Passenger Rail Agency of South Africa and Others v Ngoye and Others (JA78/21) [2024] ZALAC 18; (2024) 45 ILJ 1228 (LAC); [2024] 7 BLLR 706 (LAC) (26 March 2024) [5] The Labour Court acquires its jurisdiction from section 157(1), which authorises it to deal with matters emanating from the LRA, except where the LRA provides otherwise.[3] One such instance is where jurisdiction is assigned to the CCMA. Furthermore, the Labour Court is afforded jurisdiction in terms of section 77(1) read with section 77(3) of the Basic Conditions of Employment Act[4] (BCEA). The last-mentioned sections authorise the Labour Court to hear and determine any matter concerning a contract of employment, irrespective of whether a basic condition of employment constitutes a term of the contract.[5] [7] There have been a number of Supreme Court of Appeal (SCA) decisions, where it has been expressly stated that the dispute resolution procedure provided for in the LRA does not defeat an employee’s right to rely on common law recourse. Fedlife Assurance Ltd v Wolfaardt[6] (Fedlife), Makhanya v University of Zululand[7] (Makhanya) and SA Maritime Safety Authority v McKenzie[8] (SA Maritime Safety Authority) are three such judgments. The common thread highlighted in these judgments is that the courts will have jurisdiction to hear a dismissal dispute as long as the employee pleads the claim as one relating to unlawfulness or breach of contract, and not to unfairness. The emphasis is therefore on the form that the claim takes. [10] The SCA further held that the right not to be unfairly dismissed or not to be subjected to an unfair labour practice, termed “LRA rights” were not the only rights that an employee was entitled to. While the CCMA had exclusive jurisdiction to enforce “LRA rights” this was not the case with other rights, such as contractual rights.[11] [20] The Labour Appeal Court (LAC) in Zungu v Premier, Province of KwaZulu-Natal and Another[[2017] ZALAC 26; (2017) 38 ILJ 1644 (LAC) (Zungu (LAC)).] gave priority to the substance of the dispute...Both courts found that the issue in dispute was a dismissal, which needed to be arbitrated by the CCMA in line with section 191 of the LRA. The CC agreed. The effect of the judgment led to the rejection by the Labour Court of claims lodged by dismissed employees who “tried to dress up unfair dismissal” as a contractual claim, instead of dealing with it in line with the section 191 procedure.[31] [22] In Baloyi, the CC had to determine whether an employee could institute a contractual claim to challenge a dispute stemming from her dismissal. Here, the employee was ostensibly dismissed for poor performance during her probationary period.[32] She claimed that her termination was unlawful as it constituted a breach of her employment contract and amounted to the exercise of public power that breached the principle of legality.[33] [25] While I find the minority judgment in Fedlife more appealing, I must accept that Baloyi is the existing authority on the matter, which I am bound by, and which I will duly follow. However, I feel compelled to express my concerns with the disadvantages that flow from such an approach. "[29]...Toyota SA Motors (Pty) Limited v Nzuza and others[(2020) 41 ILJ 908 (LAC).]: ‘….it appears to have become fashionable for dismissed employees to come to the Labour Court in terms of the BCEA and claim breach of contract seeking either specific performance or damages. I do not know the reason that has given rise to this, but the risk associated with claims made in terms of the BCEA, as in this matter before this Court, is enormous. Firstly, unlike in the LRA the claimant must prove an unlawful breach and not unfairness for the termination of the employment; next in terms of the LRA reinstatement is generally compulsory where a dismissal is found to be substantively unfair, specific performance consequent upon a breach is not, and generally it is a discretionary relief.[43]" [46] In the circumstances where a contract is terminated for a breach albeit consequent on unlawful conduct by the breaching party, specific performance is not a relief that automatically follows: it is a discretionary relief. A court must look at the facts and circumstances of the breach and determine if it is appropriate to grant specific performance, that is, to compel the parties to continue the relationship in terms of their agreement even though one of the parties, on the face of it, no longer wants to continue with the contract. This is opposite to the relief a dismissed employee who seeks reinstatement in terms of the LRA for unfair termination of her/his employment is entitled to. For specific performance, the court will exercise a judicial discretion on whether it is appropriate to grant specific performance whereas in a claim of unfair dismissal, the Commissioner or the Labour Court will only refuse reinstatement if certain specific conditions set out as in section 194 of the LRA are present. [52] If the party seeks urgent and immediate relief, as the Respondents do, thus foregoing any claim for damages then it must accept, as the Respondents must, the risk of not being granted any relief. secret profits JA114/22 RFS Administrator v Samons and Others (JA114/22) [2024] ZALAC 10; [2024] 7 BLLR 722 (LAC) (11 April 2024) "RFS’s claim for disgorgement of profits [62] In order to succeed with its claim for disgorgement of profits, RFS was required to establish that there was a fiduciary relationship between it and the respondents; that in breach of that obligation, the respondents placed themselves in a position where their duties and personal interests were in conflict; and that the profits were made in secret and as a consequence of untoward conduct by the respondents." [63] An employee, when rendering his or her services, must always act in the best interests of the employer and is not entitled to use his or her employment relationship with the employer, without the employer’s permission, to make a profit or earn a commission for his or her own account.[3] [64] In Phillips v Fieldstone Africa (Pty) Ltd and Another[4], the Supreme Court of Appeal held that the rule is a strict one which allows little room for exceptions and “the defences open to a fiduciary who breaches his trust are very limited: only the free consent of the principal after full disclosure will suffice”. [65] Although my finding that the respondents were still employed by RFS when they received the payments means that they owed RFS a fiduciary duty, the common cause facts established that those payments were not made secretively. In fact, the evidence showed on a balance of probabilities that the additional payments were made with RFS’s full knowledge and acquiescence. "The claim for contractual damages [69] Regarding the claim for contractual damages, counsel for the respondents correctly submitted that RFS failed to establish which terms of their contracts had allegedly been breached." [71] In any event, in my view, RFS has failed to establish any causal connection between the alleged breach of the contracts and the damages it allegedly suffered as a consequence thereof. Court does not act as a passive instrumentality that ensures that the rules of the game are observed, it ensures that justice is done JA101/2022 Le Grange v Visser t-a Skukuza Medical Practice and Another (JA101/2022) [2024] ZALAC 61 (18 November 2024) Quartermark Investments (Pty) Ltd v Mkhwanazi and Another [2013] ZASCA 150; 2014 (3) SA 96 (SCA) at para 20; Alexkor Ltd and Another v Richtersveld Community and Others [2003] ZACC 18; 2004 (5) SA 460 (CC) at para 44; Naude and Another v Fraser [1998] ZASCA 56; 1998 (4) SA 539 (SCA) at 558B-C. [15] Is it permissible for a court to posture a case to its liking and decide it on that basis, when the postured case has not been presented to it for adjudication by the parties? Courts should decide controversies submitted to it by the parties. They should generally resist the impulse to decide issues not submitted to them. There are exceptions to this rule, based on the court’s duty. In the exercise of its duty, the Court does not act as a passive instrumentality that ensures that the rules of the game are observed, it ensures that justice is done.[4] "[16] A court may therefore mero motu raise a point of law provided that it is covered by the pleadings and its consideration would not involve unfairness, and causes no prejudice to the party against whom it is directed and raises no new factual issues. When a court raises a point of law it should give the parties an opportunity to deal with the issue.[5] [17] The court a quo impermissibly took an admitted fact (dismissal) and fashioned it as a disputed fact in order to decide an issue not submitted to it for adjudication: jurisdiction. This matter was and is not about jurisdiction. I now consider what the court a quo ought to have considered." unlawful dismissal or suspension J2025/067794 Vilakazi v Mpumalanga Tourism and Parks Agency and Others (J2025/067794) [2025] ZALCJHB 216 (13 June 2025) [21] In the Constitutional Court decision in Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA Intervening)[7], the majority of the Constitutional Court contended that it had no jurisdiction to determine the lawfulness of a dismissal. The Court observed that there was no provision in the LRA in terms of which an order could be sought declaring a dismissal unlawful or invalid. "[22] In Botes v City of Johannesburg Property Company SOC Ltd and others[8] Moshoana J stipulated: ‘I do not agree with a submission that Steenkamp is confined. The principle in Steenkamp can be summarised as follows: where an employee alleges unlawfulness and not unfairness, the Labour Court lacks jurisdiction.’" [23] Given the above, this court also lacks jurisdiction in respect of an application relating to unlawful suspension. Despite the applicant contending that the claim is based on s77(3) of the BCEA, the averments necessary to sustain such cause of action are lacking. An offer of employment was annexed to the founding affidavit, but no contract of employment has been annexed. No reference is made to specific contractual clauses which have been breached. The applicant makes reference to the disciplinary code and procedure and various legislative prescripts regulating suspension, but on closer scrutiny, the real complaint is, in fact, an unfair suspension. "[24] In Phahlane v SA Police Services and Others[9], this Court stated the following: ‘[9] Ordinarily, pleadings in a claim of this nature [contractual claim] would assert that term of the contract relied upon, alleged breach of that contract by the employer, record an election to enforce the contract by way of specific performance, and seek consequential relief. The cause of action in the present instance is clearly one of unlawfulness, in the form of an alleged breach of Regulation 9, and no more.’" "[25] Having considered the authorities, I am of the view that this Court does not have the jurisdiction to entertain an application relating to unlawful suspension. " Contitutional law direct reliance on the Constitution rather than on the provisions of the LRA J1125/21 Dipela v Limpopo Economic Development Agency (J1125/21) [2024] ZALCJHB 113; (2024) 45 ILJ 1278 (LC) (15 March 2024) "39] In National Education Health & Allied Workers Union & others v University of SA & another the Labour Court followed the same approach, where the court said: [22] [I]t is well accepted that direct reliance on the Constitution of the Republic of SA 1996 (the Constitution) is impermissible in the light of the subsidiarity principle as correctly submitted by counsel for the respondents. The subsidiarity principle dictates that, “where legislation has been enacted to give effect to a constitutional right, a litigant must either rely upon that legislation or challenge its constitutionality. It cannot bypass legislation and rely directly upon the right”, unless the “factual situation is complex and the legal position uncertain”. In the present case, the converse is true as the facts are crisp and predicable. [23] The applicants’ direct reliance on the Constitution rather than on the provisions of the LRA pertaining to unfair labour practice and/or unfair dismissal undermined the principle of subsidiarity.’ [40] It must follow that the applicant’s direct reliance on s 23 of the Constitution is ill-founded and simply not competent. The principle of subsidiarity stands squarely in the way of this part of his case. The applicant is therefore limited to establishing his right to relief by reference to the LRA only, as he has not pleaded nor relied upon any breach of contract.” (Own emphasis)" When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights CCT 220/22 Regenesys Management (Pty) Ltd t/a Regenesys v Ilunga and Others (CCT 220/22) [2024] ZACC 8; 2024 (7) BCLR 901 (CC); [2024] 8 BLLR 777 (CC); (2024) 45 ILJ 1723 (CC) (21 May 2024) " [66] One component of the right not to be dismissed unfairly is that there must be a valid or fair reason before an employee may be dismissed. When, therefore, the Constitution proclaimed in 1997 in section 23 that every worker was entitled to fair labour practices, an element of that right included the right not to be dismissed unfairly which in turn has two components, the one being every worker’s right not to be dismissed without being afforded an opportunity to be heard and, the other being the worker’s right not be dismissed without a fair reason. These two components of the right not to be dismissed unfairly related, respectively, to procedural fairness and substantive fairness of the right not to be dismissed unfairly." " [208] The reason why the interpretation of subsection (18) that the Labour Court has no jurisdiction to adjudicate disputes about procedural fairness of dismissals for operational requirements either in general or those referred to it in terms of section 191 (5)(b)(ii) is that it means that workers/trade unions and employers which have such disputes – which are clearly disputes that can be resolved by the application of law – have nowhere to take such disputes. That interpretation means that workers have a right to procedural fairness but they have nowhere to go in order to enforce that right. Such an interpretation should be avoided if there is another interpretation which can be adopted without doing violence to the language of the statute. In terms of the interpretation advanced in this judgment no worker who has a right to procedural fairness has nowhere to go to enforce or protect that right." section 33(1) of the Constitution JR2280/21 Kekana v Stapelberg NO and Others (JR2280/21) [2025] ZALCJHB 178 (19 May 2025) [10] The arbitration process and the resulting arbitration award both constitute administrative action. Accordingly, section 33(1) of the Constitution requires that the process and the outcome must be lawful, reasonable, and procedurally fair. 16.1.1 Human dignity CCT 308/23 Van Wyk and Others v Minister of Employment and Labour; Commission for Gender Equality and Another v Minister of Employment and Labour and Others (CCT 308/23) [2025] ZACC 20 (3 October 2025) "[43] In Dawood,[Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs [2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC).] this Court highlighted the interconnectedness of the right to equality with the right to human dignity, and why the right to human dignity is significant. It reasoned: “Human dignity therefore informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. This Court has already acknowledged the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel, inhumane or degrading way, and the right to life. Human dignity is also a constitutional value that is of central significance in the limitations analysis. Section 10, however, makes it plain that dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour.”[17] (Emphasis in original.)" "[44] In Harksen, this Court said: “The prohibition of unfair discrimination in the Constitution provides a bulwark against invasions which impair human dignity or which affect people adversely in a comparably serious manner. However, as L’Heureux-Dubé J acknowledged in Egan v Canada, ‘Dignity [is] a notoriously elusive concept . . . it is clear that [it] cannot, by itself, bear the weight of section 15’s task on its shoulders. It needs precision and elaboration’. It is made clear in paragraph 43 of Hugo that this stage of the enquiry focuses primarily on the experience of the ‘victim’ of discrimination. In the final analysis, it is the impact of the discrimination on the complainant that is the determining factor regarding the unfairness of the discrimination.”[18]" Litigant may not bypass that legislation and rely directly on the Constitution without challenging the legislation in question "[32] In De Klerk v Cape Union Mart International (Pty) Ltd,[(2012) 33 ILJ 2887 (LC) at paras 23 - 27.] Steenkamp J, when faced with an application who relied directly on the right to fair labour practices in Section 23 of the Constitution, said the following: ‘As set out above, the applicant relies directly on the right to fair labour practices enshrined in Section 23 of the Constitution. As the applicant herself acknowledges, national legislation - specifically the LRA - has been enacted to regulate and to give effect to the right to fair labour practices. Where legislation has been enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely directly on the Constitution without challenging the legislation in question. " "[37] In Mazibuko and Another v City of Johannesburg and Others[2010 (3) BCLR 239 (CC).] at para 73, the Constitutional Court discussed the principle of constitutional subsidiarity and reiterated that: ‘This Court has repeatedly held that where legislation has been enacted to give effect to a right, a litigant should rely on that legislation in order to give effect to the right or alternatively challenge the legislation as being inconsistent with the Constitution.’" Dismissal of foreign nationals JR280/23 GMP Trading Trading CC t/a Taxi Rand Food Market v Commission for Conciliation Mediation and Arbitration and Others (JR280/23) [2025] ZALCJHB 581 (10 December 2025) 8] However, the Constitution of the Republic of South Africa, 1996 (the Constitution), in its preamble and Bill of Rights, affirms that the country belongs to all who live in it. Section 23 guarantees everyone the right to fair labour practices. The unlawful conduct of private groups cannot be permitted to override the constitutional and statutory rights of employees, whether nationals or foreign nationals no matter the threats they make. Definition "hire" Demarcation of "hire" JR2411/08 National Bargaining Council for the Road Freight Industry v Marcus NO & Others double jeopardy JA118/13 Mahlakoane v South African Revenue Service (JA118/13) [2018] ZALAC 1 (25 January 2018) those that the appellant was charged with in the first disciplinary hearing and those she was charged with in the second hearing, were clearly distinguishable from each other BMW (SA) (Pty) Ltd v Van der Walt(2000) 21 ILJ 113 (LAC);Branford v Metro Rail Services (Durban) and Others(2003) 24 ILJ 2269 (LAC) and the helpful and insightful discussion of the topic in J Grogan Workplace Law(2007) pp 200-204. has, as its heart, fairness and this rule or principle simply entails that an employee cannot, generally, be charged again with the same misconduct that he or she was either found guilty or not guilty of. However, there are instances where breaches of this rule or principle can be condoned. The paramount consideration, however, is fairness to both sides The misconduct was of a very serious nature and involved calculated acts of dishonesty perpetrated by the appellant and Mr Setshedi. In those circumstances, the sanction of dismissal was clearly justified Pre-emption (preemption) JR957/2014 Bidair Services (Pty) Ltd v Mbhele and Others (JR957/2014) [2016] ZALCJHB 161; (2016) 37 (ILJ) 1894 (LC) (27 January 2016) the applicant expressly and unequivocally, unconditionally and unreservedly acquiesced in the Award when it offered Mashishi the alternative positions of baggage handler and cleaner In NUMSA & others v Fast Freeze (1992) 13 ILJ 963 (LAC) at page 969. 'If a party to a judgment acquiesces therein, either expressly, or by some unequivocal act wholly inconsistent with an intention to contest it, his right of appeal is said to be perempted, ie he cannot thereafter change his mind and note an appeal. Peremtion is an example of the well-known principle that one may not approbate and reprobate, or, to use colloquial expressions, blow hot or cold, or have one's cake and eat it.' In Dabner v South African Railways & Harbours 1920 AD 583 at para 594. 'The rule with regard to peremption is well settled, and has been enunciated on several occasions by this Court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. And the onus of establishing that position is upon the party alleging it. In doubtful cases acquiescence, like waiver, must be held non-proven.' The requirements of peremption in review matters can be summarized as follows: i. Where a right to review exists, the party desiring to review loses that right where he or she has acquiesced in the arbitration award unconditionally and without any reservation which acquiescence may be express or implied from conduct. ii. The acquiescence by conduct entails the applicant conveying outwardly to the other party the attitude or stance towards the award. iii. The conduct must be consistent with an intention to abide by the arbitration award and inconsistent with an intention to review it. iv. The test to determine whether the applicant has manifested an outward attitude in relation to the award is objective and thus the subjective state of mind or intention of the applicant is irrelevant. v. The Court in considering whether the award has been perempted will determine whether fairly construed the conduct of the applicant leads to the conclusion of abiding with the award. vi. The onus of proving that an award has been perempted rests with the party seeking to rely on that doctrine. vii. The party seeking to rely on preemption stands to fail if more than one inference may be fairly drawn from the conduct of the other party. This means that the conduct relied upon to evoke preemption has to be unequivocal. The basic requirement to sustain a claim of peremption entails having to show that the acceptance of the outcome of the arbitration award expressly or by conduct was unequivocal. In other words the applicant loses his or her right to challenge on review the arbitration award where the review application is instituted after accepting the outcome of the ward unequivocally and without any reservation.' Singh v First National Bank and others, 'The concept of peremption is based on the general notion that a litigant has two elections to make: either accept or reject the outcome of the judgment or the arbitration award. As a general rule a party that perempts the arbitration award would not be entitled subsequently to challenge that arbitration award. The basic requirement, however, to sustain a claim of peremption entails having to show that the acceptance of the outcome of the arbitration award expressly or by conduct was unequivocal.' rationality and reasonableness J34/2017 Nyamane v MEC: Free State Department of Health (J34/2017) [2018] ZALCJHB 455; [2019] 12 BLLR 1371 (LC) (31 August 2018) has been confirmed that rationality and reasonableness are conceptually different Albutt v Center for the Study of Violence and Reconciliation and others 2010 (3) SA 293 (CC). The Executive has a wide discretion in selecting the means to achieve its constitutionally permissible objectives. Courts may not interfere with the means selected simply because they do not like them, or because there are other more appropriate means that could have been selected. But, where the decision is challenged on the grounds of rationality, courts are obliged to examine the means selected to determine whether they are related to the objective sought to be achieved. What must be stressed is that the purpose of the enquiry is to determine not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if, objectively speaking, they are not, they fall short of the standard demanded by the Constitution. Minister of Defence and Military Veterans v Motau 2014 (8) BCLR 930 (CC) [69] The principle of legality requires that every exercise of public power, including every executive act, be rational. For the exercise of public power to meet this standard it must be rationally related to the purpose for which the power was given doctrine of waiver J3093/18 Maluleke v Greater Giyani Local Municipality and Others (J3093/18) [2018] ZALCJHB 456; (2019) 40 ILJ 1061 (LC) (4 October 2018) Administrator, Orange Free State v Mokopanele and Others (1920) 11 ILJ 963 AD at p 968. before a party can be held to have surrendered his right, he must know of his right. A similar approach was adopted some four years later in Laws v Rutherford[1924 AD 261] where the Court held that before a waiver can be upheld, it must be demonstrated that the person who is alleged to have waived his or her right knew that he or she was waving her right. It logically follows then that in order to constitute waiver, the relevant conduct of the party alleged to have waived the right must be clearly inconsistent with the exercise of the right alleged to have been waived. novation J2898/18 Betterbond (Pty) Ltd and Another v Smit and Another (J2898/18) [2018] ZALCJHB 318 (5 October 2018) National Health Laboratory Service v Lloyd-Jansen van Vuuren [2015] ZASCA 20; 2015 (5) SA 426 (SCA) at paras 16 to 17. [15] There is a presumption against novation because it involves a waiver of existing rights. When parties novate they intend to replace a valid contract with another valid contract. In determining whether novation has occurred, the intention to novate is never presumed. In Acacia Mines Ltd v Boshoff,[4] the court held that novation is essentially a question of intention.[16] In Proflour (Pty) Ltd & another v Grindrod Trading (Pty) Ltd t/a Atlas Trading and Shipping & another[5] the court, when determining whether the agreement resulted in a novation, referred to the decision of Electric Process Engraving and Stereo Co v Irwin 1940 AD 220 at 226-227 where the court said: The law on the subject was clearly enunciated as far back as 1880 in the well-known case of Ewers v The Resident Magistrate of Oudtshoorn and Another, (Foord) 32, where DE VILLIERS, C.J, said: The result of the authorities is that the question is one of intention and that, in the absence of any express declaration of the parties, the intention to effect a novation cannot be held to exist except by way of necessary inference from all the circumstances of the case. It follows that in order to establish whether novation has occurred, the court is entitled to have regard to the conduct of the parties, including any evidence relating to their intention. Locus Standi J2305/16 National Regulator for Compulsory Specifications v Mazibuko (J2305/16) [2019] ZALCJHB 26 (20 February 2019) Tulip Diamonds FZE v Minister for Justice and Constitutional Development and Others 2013(10 BCLR 1180 (CC) at para 27 [7] Locus standi means a right to prosecute. Under common law, this doctrine requires that a party must have a personal and direct interest in the matter before the court.[9] In terms of the Constitution[10] (a) anyone acting in their own interest and/or (d) anyone acting in the public interest, may approach a competent court asking for an order, if it is under the belief that its rights have been violated or threatened. Actual authority and ostensible or apparent authority JA129/2021 Economic Freedom Fighters v Brightstone Trading 3 CC t/a Gordon Road Spar and Others - Appeal (JA129/2021) [2023] ZALAC 21 (17 August 2023) "[9] The primary issue for determination in this appeal is whether the doctrine of ostensible authority finds application on the facts of this matter or not. As was made clear by the Constitutional Court in Makate v Vodacom[[2016] ZACC 13; 2016 (4) SA 121 (CC) at paras 46 – 47.] (Makate): ‘[45] Actual authority and ostensible or apparent authority are the opposite sides of the same coin. If an agent wishes to perform a juristic act on behalf of a principal, the agent requires authority to do so, for the act to bind the principal. If the principal had conferred the necessary authority either expressly or impliedly, the agent is taken to have actual authority. But if the principal were to deny that she had conferred the authority, the third party who concluded the juristic act with the agent may plead estoppel in replication. In this context, estoppel is not a form of authority but a rule to the effect that if the principal had conducted herself in a manner that misled the third party into believing that the agent has authority, the principal is precluded from denying that the agent had authority. [46] The same misrepresentation may also lead to an appearance that the agent has the power to act on behalf of the principal. This is known as ostensible or apparent authority in our law. While this kind of authority may not have been conferred by the principal, it is still taken to be the authority of the agent as it appears to others… [47] A closer examination of the original statement on apparent authority by Lord Denning, quoted below, reveals that the presence of authority is established if it is shown that a principal by words or conduct has created an appearance that the agent has the power to act on its behalf. Nothing more is required. The means by which that appearance is represented need not be directed at any person. In other words the principal need not make the representation to the person claiming that the agent had apparent authority. The statement indicates the absence of the elements of estoppel. It does not mention prejudice at all…’ [Own emphasis]" [10] It follows that ostensible authority is established if it can be shown that the conduct of the principal created an impression that the agent had the power to act on its behalf. It is therefore the conduct of the principal that must be examined in order to determine whether it created the appearance that the agent had the authority to bind the principal. The agent does not authorise herself or himself. Rather, authorisation flows from the principal’s conduct. "[11] Subsequent to the decision in Makate, this Court in Western Platinum Ltd v National Union of Mineworkers obo Mathulatsipi and Others[(2020) 41 ILJ 2617 (LAC) at paras 3 - 4.] held that: ‘[3] … The true position is that ostensible or apparent authority cannot be founded upon a representation made by the agent alone. In order for the principal to be bound by virtue of an estoppel, the representation must be made by the principal itself… " [12] The Labour Court in Maye Serobe (Pty) Ltd v Labour Equity General Workers Union of South Africa obo Members and others[[2015] JOL 33143 (LC) at para 30.], with reference to the decision of the Supreme Court of Appeal in Northern Metropolitan Local Council v Company Unique Finance (Pty) Ltd and others,[[2012] 3 All SA 498 (SCA).] found that to hold a party liable on the basis of ostensible authority, there must be shown to have been (a) a representation by words or conduct; (b) made by the appellant and not merely by the agents that they had authority to act as they did; (c) in a form such that the appellant should reasonably have expected that outsiders would act on the strength of it; (d) with reliance placed by the respondents on such representation; (e) which reliance was reasonable; and (f) caused consequent prejudice to the respondents. [15] For the doctrine of ostensible authority to find application, the Labour Court was required to find that the EFF, as a voluntary association, had created an appearance or representation by words or conduct that Mr Sono and/or his other EFF members involved in the protest action had authority to act as they did. There is no evidence of such appearance or representation having been made by the EFF, doctrine of mootness JR827/2022 Motha v Commission For Conciliation Mediation And Arbitration and Others (JR827/2022) [2024] ZALCJHB 320 (18 July 2024) "[21] The Constitutional Court dealt with the doctrine of mootness in Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exportation and Exploitation SOC Ltd and Another[] and held as follows: ‘[47] Mootness is when a matter “no longer presents an existing or live controversy”. The doctrine is based on the notion that judicial resources ought to be utilised efficiently and should not be dedicated to advisory opinions or abstract propositions of law, and that courts should avoid deciding matters that are “abstract, academic or hypothetical”. [48] This court has held that it is axiomatic that “mootness is not an absolute bar to the justiciability of an issue… [and that this] Court may entertain an appeal even if moot, where the interests of justice so require”. This Court has “discretionary powers to entertain even admittedly moot issues”. … [50] Moreover, this Court has proffered further factors that ought to be considered when determining whether it is in the interests of justice to hear a moot matter. These include – (a) whether any order which it may make will have some practical effect either on the parties or on others; (b) the nature and extent of the practical effect that any possible order might have; (c) the importance of the issue; (d) the complexity of the issue; (e) the fullness or otherwise of the arguments advanced; and (f) resolving the disputes between different courts.’" discretion JA98/22 Moolman v Commission For Conciliation, Mediation and Arbitration and Others (JA98/22) [2024] ZALCJHB 339 (22 August 2024) " [30] The first category of discretion, which is sometimes referred to as discretion in a true sense, discretion in a strict sense or unfettered discretion, is characterised by the repository's power to choose between various permissible courses or options when deciding on an issue or exercising power.G106:O106" [31] It is generally accepted that where the repository of power has performed his or her function of choosing among the available options or courses, the appeal court would not be entitled to interfere with such an exercise of discretion by substituting that option with its preferred option. In other words, in the court below or in the case of a review of a ruling in mediation or arbitration proceedings, the commissioner is free to decide which of the available and permissible options or courses he or she would adopt. "[32] The definition of discretion, in the true sense, was formulated as follows in Media Workers Association of South Africa and Others v Press Corporation of SA Ltd [7] and accepted by the Constitutional Court in Trencon Construction: “The essence of a discretion in this narrower sense (the true sense) is that, if the repository of the power follows any one of the available courses, he would be acting within his powers, and his exercise of power could not be set aside merely because a Court would have preferred him to have followed a different course among those available to him.”" 33] This means that a discretion, in the true sense, is exceptionally appealable. In other words, the appeal court would only be justified to interfere with the exercise of power by the lower Court if it is satisfied that the discretion was exercised (1) capriciously or (2) upon wrong principles, or (3) the discretion was not exercised in an unbiased manner.[8] "[34] In Naylor and Another v Janson[9] the Supreme Court of Appeal (SCA) held that: “Where the law has given a judge an unfettered discretion, it is not for this court (the SCA) to lay down rules which, whilst purporting to guide the judge, will only have the effect of fettering the discretion. If, therefore, there are factors which the trial court, in the exercise of its discretion, can and legitimately does decide to take into account so as to reach a different result, a court on appeal is not entitled to interfere ─ even although it may or even probably would have given a different order.” [35] The Constitutional Court made the same point in Florence v Government of the Republic of South Africa[10] (CC) as follows: “Where a court is granted wide decision-making powers with a number of options or variables, an appellate court may not interfere unless it is clear that the choice the court has preferred is at odds with the law. If the impugned decision lies within a range of permissible decisions, an appeal court may not interfere only because it favours a different option within the range. This principle of appellate restraint preserves judicial comity. It fosters certainty in the application of the law and favours finality in judicial decision-making.”" "[37] In contrast to the standard of appealability in the first category, the restrictions applicable in that category do not apply to the second category, discretion in the loose sense, in that an appeal Court has authority, in general, to substitute the decision of the lower court with its own if it concludes that the discretion was wrongly exercised. The discretion in the loose sense is sometimes referred to as discretion in the narrow sense. In M R v N R[12] discretion in the loose sense is described as follows: “24 Where a discretion in a loose sense applies, an appellate court is equally capable of determining the matter in the same manner as the court of first instance and can therefore substitute its own exercise of the discretion if it considers that the order of the first instance court was wrong.”" [40] The general rule of labour law practice, which finds application in both civil and criminal proceedings, is that the Labour Court is discouraged from reviewing any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the CCMA or bargaining councils before the main issue in dispute is finally resolved. The exception to the general rule is that the Labour Court may review such a decision or ruling if it deems it just and equitable to do so. "43] It should be noted that the legislature did not introduce a total prohibition on reviews of interlocutory rulings in arbitration and mediation proceedings but rather allowed for an exception to the general rule. As a matter of principle, interference in uncompleted arbitration proceedings through review is only permissible in exceptional circumstances. The requirement to intervene in exceptional circumstances is underpinned by the legislative policy requiring speedy finalisation of labour disputes, which dictates that the court should not interfere with incomplete proceedings but allow a hearing to run its course. This underscores the importance of the Court's role in ensuring a fair and just resolution, which should strike a balance between the interests of all parties involved. The correct approach to adopt in this regard was set out in South African Broadcasting Corporation (SOC) Limited v Commission for Conciliation Mediation and Arbitration and Others[16] as follows: “A case must be truly exceptional to warrant a departure from the norm that a review is appropriate only once the dispute has been finally determined in a completed arbitration hearing. This is consistent with the statutory purpose of expeditious dispute resolution, which the LRA seeks to achieve.”" "[47] In State Information Technology Agency (SITA) v Commission for Conciliation Mediation and Arbitration,[19] the court correctly intervened when the commissioner erred in ordering the discovery of a privileged document. The harm that the other party would have suffered had the court allowed the ruling to stand and the privileged documents to be disclosed is that damage would not be adequately addressed upon the conclusion of the main proceedings. The court intervened earlier because the document which the applicant sought to disclose was legally privileged. The court reviewed and set aside the ruling and declared that the applicant was not compelled to disclose the copy of the document required by the respondents. [48] Similarly, the Labour Court in South African Sports Confederation and Olympic Committee (SASCOC) v Commission for Mediation Conciliation and Arbitration and Others[20] the Labour Court intervened earlier on the ground that the document required by the respondent was patently irrelevant to the dispute." calculation of "days" where not defined in act (Employment Equity Act) J1330/22 Ndou and Others v Colefax Trading (Pty) Ltd and Others (J1330/22) [2024] ZALCJHB 454 (20 November 2024) [11] Because a “day” is not defined in the EEA, submits Mr De Villiers, s 4 of the Interpretation Act 33 of 1957 should prevail by giving “day” its ordinary meaning of a calendar day. The appellants, therefore, should have filed their appeal within 14 ordinary days. Failure to do so, must result in the dismissal of their appeal. """[21] The appellants were compelled to file their notice of appeal within 14 ordinary days, as determined by the Interpretation Act, of the award. This they did not do. """ "[21] The appellants were compelled to file their notice of appeal within 14 ordinary days, as determined by the Interpretation Act, of the award. This they did not do. " basic requirements of natural justice 121530/2024 Khan v South African Police Service and Others (121530/2024) [2024] ZALCJHB 488 (4 December 2024) 49] The respondent has submitted that the expeditious disciplinary process meets the three basic requirements of natural justice in the conduct of disciplinary hearings in that the employee should know the nature of the accusation against him/her; the employee should be given an opportunity to state his/her case and that the tribunal should act in good faith. I do not differ with this opinion, however, there are circumstances where the process can result in injustice and prejudice to one of the parties. Information Rely on LRA not PAIA for access to information D38/08 National Teachers Union v The Superintendent General: Department of Education & Culture Kwazulu-Natal PAJA even if termination took place by organ of state exercising public power; not administrative action; other remedies available 138/08 Kriel v The Legal Aid Board & Others PAJA Other case law cited Chirwa v Transnet Ltd and others 2008 (4) SA 367 (CC) [t]he mere fact that Transnet is an organ of State which exercises public power does not transform its conduct in terminating the applicants employment contract into administrative action. 138/08 Kriel v The Legal Aid Board & Others Letter of demand J2237/16 Incledon (Pty) Limited and Others v Slabbert and Others (J2237/16) [2017] ZALCJHB 164 (5 April 2017) King Williams Town v Border Alliance Taxi Association 2002 (4) SA 152 (ECD) [11] One of the fundamental rules of fairness that underlies the courts rules of procedure and evidence is that litigants should be warned in advance of points being taken against them. The very purpose of a letter of demand is to avoid litigation, amongst other things, by affording a party the opportunity to respond to all of the material allegations articulated in the demand....This is not to suggest that a response to a letter of demand ought to assume the particularity of a pleading what is required is at least that the material allegations made be addressed with sufficient particularity to enable an applicant to decide whether to take the next step of initiating litigation. Interest dispute Dispute about interest not rights Refusal of department to implement salary improvements as no funds had been allocated for this purpose JA32/09 Public Servants Association v National Prosecuting Authority Territorial jurisdiction of the CCM JA45/14 Monare v South African Tourism and Others there was no jurisdictional dispute before the CCMA at any stage....office does not have a separate corporate personality. It is part and parcel of the first respondent, which is one undertaking. The fact that the office was in London does not make it a different undertaking. Genrec Mei criterion held: When all the facts of this matter are considered and the question is asked as to where the undertaking was carried on in which the respondent worked, the answer would be an easy one, namely Malawi! Astral, the court a quo in the present case reasoned and concluded as follows: In the present instance, there is no such residual nexus with the South African office. The first respondent may be South African and they may have worked for an entity whose head office is located in South Africa but he was recruited overseas, his employment contract was concluded overseas, he was obliged to work overseas for an agreed fixed term with no right to return to South Africa and continue employment there on conclusion of that fixed term and he performed services only in the United Kingdom. He committed the acts of misconduct that resulted in his dismissal in the United Kingdom, his disciplinary hearing was held there, and he was given notice of dismissal there. In my view, in these circumstances the LRA has no territorial application. It follows that the first respondent had no right to refer his dispute to the CCMA and the CCMA had no right to entertain it. Independent Police Investigative Directorate and Robert McBride v The Minister of Police Case number 6588/2015. Right vs interest dispute JR741/16 Emfuleni Local Municipality v South African Local Government Bargaining Council and Others (JR741/16) [2019] ZALCJHB 367 (11 November 2019) They seek to remain in the same jobs, with the same responsibilities, but to be graded at a higher level, with the financial rewards that grading at a higher level will bring. In Polokwane Local Municipality v SALGBC & others [2008] ZALC 29; [2008] 8 BLLR 783 (LC), Molahlehi J regarded a dispute where an employee sought to have her post upgraded as a dispute of interest. In the absence of any right to be appointed to the higher position or to have the post upgraded, the dispute was not arbitrable (at paragraph 26). In Mashegoane v University of the North [2007] ZALC 53; [1998] 1 BLLR 73 (LC), a dispute that concerned the refusal by the senate of the university to appoint a lecturer to the position of dean of the faculty, where the court considered that the appointment to the post of dean would be one that would considerably elevate the employees status and encompass a greater degree of responsibility. On this basis, the court held that the dispute properly concerned a promotion. In the present instance, the employees do not seek appointment to another post, and certainly not one that confers greater responsibility or status. The employees may have a claim under the Employment Equity Act on the basis of equal pay for the same or similar work, or work of equal value. But that is not the claim that they referred to arbitration. Alternatively, the applicants may have the election to press their demand by resorting to the exercise of the right to strike. But this is not a matter that I need decide. Mutual interest vs rights issue P 28/2010 Department of Correctional Services v General Public Service Bargaining Council J 3424 / 18 J & L Lining (Pty) Ltd v National Union of Metalworkers of South Africa and Others (J 3424 / 18) [2018] ZALCJHB 409; (2019) 40 ILJ 1289 (LC) (10 December 2018) Pikitup (SOC) Ltd v SA Municipal Workers Union on behalf of Members and Others " the phrase 'any matter of mutual interest' defies precise definition. The phrase is couched in very wide terms. According to Grogan, the phrase is extremely wide, 'potentially encompassing issues of employment in general, not merely matters pertaining to wages and conditions of service. Grogan concludes, correctly in my view, that 'the best one can say, therefore, is that any matter which affects employees in the workplace, however indirectly, falls within the scope of the phrase ""matters of mutual interest"" and may accordingly form the subject matter of strike action'" JS89/18 Jabu and Others v Gauteng Department Of Economic Development (JS89/18) [2024] ZALCJHB 93 (1 March 2024) "33. In an analogous case, Gauteng Provinsiale Administrasie v Scheepers[12] the employees were administration clerks who were performing the duties of network controllers. Network controllers earned higher salaries and received better benefits. The employees sought the remuneration packages applicable to network controllers. The issue came before the Labour Appeal Court, with Conradie JA commenting at paragraph 8, “Generally speaking a dispute relating to proposals for the creation of new rights…is a dispute of mutual interest. Such disputes are ordinarily resolved by collective bargaining”.[(2000) 21 ILJ 1305 (LAC)]" 35. Even if I am wrong on the jurisdiction point, I am unpersuaded that the Applicants have made out a case for the relief they seek. I say so because the merits of their claim for arrear payments for remuneration at level 9 for the years 2012 – 2017 is weak for three reasons: firstly they consented to a horizontal / lateral move remaining at level 5; secondly they failed to be appointed into the post when it was advertised, they simply did not have the qualifications, and there were stronger candidates in the arena; and thirdly they did not perform the more complex tasks required such as designing training materials or conducting research – they were not carrying out all the duties expected of an incumbent in the level 9 post. 34. Arguably though the Applicants could have characterised their dispute as one about an Unfair Labour Practice relating to Promotions, in terms of section 186 (2)(a) of the Labour Relations Act, 1995 and could have referred the matter to the GPSSBC for arbitration. Arguably too, the Applicants could have pursued an unfair discrimination claim under section 6(4) of the Employment Equity Act, 1998 at the CCMA. (Similar pay for work of similar value). This is not to suggest that such claims would have had good prospects, but simply to point out at a notional level that the facts could have given rise to different characterisations, and dispute resolution fora and processes. Nature of dispute poor work performance and misconduct vast difference JR2024/08 Rema Tip Top (Pty) Ltd v Osman NO and Others Right vs interest dispute JR741/16 Emfuleni Local Municipality v South African Local Government Bargaining Council and Others (JR741/16) [2019] ZALCJHB 367 (11 November 2019) They seek to remain in the same jobs, with the same responsibilities, but to be graded at a higher level, with the financial rewards that grading at a higher level will bring. In Polokwane Local Municipality v SALGBC & others [2008] ZALC 29; [2008] 8 BLLR 783 (LC), Molahlehi J regarded a dispute where an employee sought to have her post upgraded as a dispute of interest. In the absence of any right to be appointed to the higher position or to have the post upgraded, the dispute was not arbitrable (at paragraph 26). In Mashegoane v University of the North [2007] ZALC 53; [1998] 1 BLLR 73 (LC), a dispute that concerned the refusal by the senate of the university to appoint a lecturer to the position of dean of the faculty, where the court considered that the appointment to the post of dean would be one that would considerably elevate the employees status and encompass a greater degree of responsibility. On this basis, the court held that the dispute properly concerned a promotion. In the present instance, the employees do not seek appointment to another post, and certainly not one that confers greater responsibility or status. The employees may have a claim under the Employment Equity Act on the basis of equal pay for the same or similar work, or work of equal value. But that is not the claim that they referred to arbitration. Alternatively, the applicants may have the election to press their demand by resorting to the exercise of the right to strike. But this is not a matter that I need decide. Parity principle Appeal-reinstate, Arbitrate-dismissed JR2041/07 Royal Canin South Africa (Pty) Ltd v Mbileni NO & Others lis alibi pendens JR483/14 Shongwe and Others v City of Johannesburg Metropolitan Municipality (JR483/14) [2016] ZALCJHB 67 (25 February 2016) Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA) As its name indicates, a plea of lis alibi pendens is based on the proposition that the dispute (lis) between the parties is being litigated elsewhere and therefore it is inappropriate for it to be litigated in the court in which the plea is raised. The policy underpinning it is that there should be a limit to the extent to which the same issue is litigated between the same parties and that it is desirable that there be finality in litigation. The courts are also concerned to avoid a situation where different courts pronounce on the same issue with the risk that they may reach differing conclusions. It is a plea that has been recognised by our courts for over 100 years. And, the plea bears an affinity to the plea of res judicata, which is directed at achieving the same policy goals. Their close relationship is evident from the following passage fromVoet44.2.7:2'Exception of lis pendens also requires same persons, thing and cause.-The exception that a suit is already pending is quite akin to the exception of res judicata, inasmuch as, when a suit is pending before another judge, this exception is granted just so often as, and in all those cases in which after a suit has been ended there is room for the exception of res judicata in terms of what has already been said. Thus the suit must already have started to be mooted before another judge between the same persons, about the same matter and on the same cause, since the place where a judicial proceeding has once been taken up is also the place where it ought to be given its ending.' In our common law the requirements for res iudicata are threefold: (a) same parties, (b) same cause of action, (c) same relief. The recognition of what has become known as issue estoppel did not dispense with this threefold requirement. But our courts have come to realise that rigid adherence to the requirements referred to in (b) and (c) may result in defeating the whole purpose of res iudicata. That purpose, so it has been stated, is to prevent the repetition of lawsuits between the same parties, the harassment of a defendant by a multiplicity of actions and the possibility of conflicting decisions by different courts on the same issue (see eg Evins v Shield Insurance Co Ltd1980 (2) SA 814 (A) at 835G). Issue estoppel therefore allows a court to dispense with the two requirements of same cause of action and same relief, where the same issue has been finally decided in previous litigation between the same parties Protected disclosure act JS595/05 Sekgobela v State Information Technology Agency (Pty) Ltd Whistleblowers E/r duty to begin, exclude sec 5 D286/10 Randles v Chemical Specialities Ltd s 15 of the Protected Disclosures Act 26 of 2000. D286/10 Randles v Chemical Specialities Ltd disclosed contents of legal opinion to unions benefits officer Protected JS 575/09 Arbuthnot v South African Municipal Workers Union Provident Fund Test remained whether the person making disclosure was acting in good faith and whether that person reasonably believed that there was an impropriety. To Public prosecutor Was disclosure, was protected and suffered occupational detriment JA53/08 State Information Technology Agency (Pty) Ltd v Sekgobela Member of parliament 158(2)(a) C367/06 Charlton v Parliament of RSA Interdict Prima facie right: Whether Disclosure made bona fide , Whether disclosures protected , Whether pending disciplinary linked to disclosure; Balance of convenience; Absence of alternative remedy ; occupational detriment C7/03 Grieve v Denel (Pty) Ltd Retrenched . The employer referred to Sikhosana & Others v Sasol Synthetic Fuels ((2000)21 ILJ; [2002]1 BLLR 95(LAC)) and submitted that fair retrenchment did not entail a mechanical compliance with s 189 of the Act reasonable inference that could be drawn was that Ms Pedzinsky was dismissed because of her protected disclosure. Held therefore that the decision to retrench was a sham and the dismissal automatically unfair JS396/04 Pedzinski; A v Andisa Securities (Pty) Ltd (formerly SCMB Securities (Pty) Ltd s 4(2)(a) of the Protected Disclosures Act 26 of 2000 Disclosure, it was not necessary for the applicant to show that there was an actual breach of a legal obligation, merely that he had reason to believe that the information showed or tended acted in good faith and had a reasonable belief that much of the information was substantially true JS875/09 Malan v Johannesburg Philharmonic Orchestra Employer defined in terms of section 1 of LRA JA61/09 Radebe and Another v Premier, Free State Province and Others disclosure protection C579/07 Theron v Minister of Correctional Services & Another Interdict, would suffer irreparable harm if the disciplinary enquiry proceeded and in any event she had an alternative remedy located in s 4(2)(b) of the Act. C 418/2013 Van Alphen v Rheinmetall Denel Munition (Pty) Ltd General requirements for a disclosure to be protected: General requirements for a disclosure to be protected: there had to be a disclosure; the disclosure had to be made in good faith; the disclosure had to concern an impropriety, either a criminal offence or that a person had failed, was failing or was likely to fail to comply with any legal obligation to which that person was subject; it had to be reasonable for the employee to make the disclosure; and, that one or more of the conditions referred to in s 9(2) had to be satisfied. But, late or fractured payments to employees or service providers were not a serious impropriety. Dismissed. (JA 61/11) [2013] ZALAC 24 Malan v Johannesburg Philharmonic Orchestra Grant order suspending enquiry to prevent greater prejudice to employee than department. Established a prima facie right that an occupational detriment had been committed. Should the disciplinary charges go ahead before the PDA dispute was adjudicated was greater than the financial prejudice to the department of keeping the applicant on paid suspension. (C18/2014) [2014] ZALCCT 6 Motingoe v Head of Department of Roads and Public Works, Northern Cape and Others Placing him in an unproductive and meaningless post, meant that other staff would have understood him to have been sidelined and respect for him would have diminished, as he had picked up from remarks to the effect that he was being paid for doing nothing. Compensation in the amount of R100,000. (JS1043/12) [2014] ZALCJHB 131 Solidarity obo Roos v South African Police Service and Others State of toilets at large academic hospital could not form the basis of a protected disclosure. The Internet was, unlike the press, not subject to editorial moderation. Disclosure could not be said to have been reasonable. (C16/2012) [2014] ZALCCT 16 Beaurain v Martin NO and Others The court proposed that a useful and practical approach to determine this was to consider factors such as: (a) the timing of the disciplinary enquiry; (b) the reasons given by the employer for taking the disciplinary steps; (c) the nature of the disclosure; and (d) the persons responsible within the employer for taking the decisions to institute charges. (J620/14) [2014] ZALCJHB 122 IMATU and Another v City of Matlosana Local Municipality and Another The court rejected the employers contention that the information was of a sensitive nature and that this is itself rendered the employment relationship intolerable. Would seriously erode the very protection that the legal framework endeavoured to grant to whistleblowers. Disclosure made by the employee was made in good faith and fell into the category of protected disclosure. (JA71/12) [2014] ZALAC 32 Potgieter v Tubatse Ferrochrome and Others tends to show" JS287/2012 Dorey v TSB Sugar RSA Ltd (JS287/2012) [2017] ZALCJHB 168 (3 May 2017) Radebe and Another v Premier, Free State Province and Others [2012] (5) SA 100 (LAC); [2012] 33 ILJ 2353 (LAC); [2012] BLLR 1246 (LAC) at para 33 The phrase tends to show in section 1 cannot be equated to show. Had the legislature intended the approach propounded by the Labour Court, it would have used only the term show. The phrase tends to show properly interpreted means that the information in the disclosure conveyed a suggestion of an impropriety or conduct that may have taken place or might be continuing. I do not understand the provision itself to include a requirement that what is conveyed must be factually accurate or be the truth. If the employee believes that the information is true it would fortify the reasonableness of his belief from which, in turn, his bona fides can be inferred. (Footnote omitted.) [35]In line with RadebeI need not concern myself with the truthfulness and or accuracy of the allegations. City of Tshwane Metropolitan Municipality v Engineering Council of SA and Another(2010) 31 ILJ 322 (SCA) at para 42. Having concluded that the applicant has made a disclosure, I need to determine whether such a disclosure was bona fide or not. Kroukam v SA Airlink (Pty) Ltd(2005) 26 ILJ 2153 (LAC) at paras 27-8. Relief Insofar as the relief is concerned, the appellant has argued that this was excessive. I do not agree. The PDA is a piece of legislation that addresses a critical area in the sphere of public finance and accountability. It is a piece of legislation that addresses the important constitutional objectives of clean government and service delivery. Public entities have to be scrutinized in terms of their dealings to ensure that they deliver to the general public in terms of the mandate. [45]Accordingly, I come to the conclusion that it will be just and equitable to award compensation equivalent to 24 months remuneration JS274/16 Lephoto v National Institute for Humanities and Social Sciences and Another (JS274/16) [2017] ZALCJHB 442 (22 November 2017) 3. The first respondent, the National Institute for Humanities and Social Sciences, is ordered to pay the applicant 12 months compensation, an equivalent of 12 months’ salary subject to statutory deductions payable within 30 days from the date of this order. Tshishonga v Minister of Justice and Constitutional Development and Another 2007 (4) SA 135 (LC); [2007] 28 ILJ 195 (LC) at para 176. [176] The PDA is conceived as a four-staged process that begins with an analysis of the information to determine whether it is a disclosure. If it is, the next question is whether it is protected. The third stage is to determine whether the employee was subjected to any occupational detriment and lastly, what the remedy should be award for such treatment. It is not an enquiry into wrongdoing about whether the employee deserves protection. Structured in this way the inclination to shift the emphasis from the conduct and credibility of the wrongdoer to that of the whistle-blower is real. Malan v Johannesburg Philharmonic Orchestra (JA61/11) [2013] ZALAC 24 (12 September 2013 at para 29. There must be a disclosure; the disclosure must be made in good faith; the disclosure must concern an impropriety, either a criminal offence or that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject; it must be reasonable for the employee to make the disclosure; and, that one or more of the conditions referred to in subsection 9(2) must be satisfied for present purposes, any one of them is sufficient. Where the disclosure is made to the employer subsection (c) which is relevant for the present purposes provides that the employee making the disclosure must have previously made a disclosure of substantially the same nature to his or her employer. CWU v Mobile Telephone Networks (Pty) Ltd (2003) 24 ILJ 1677 (LC) at para 21. State Information Technology (2012) 10 BLLR 1001 (LAC) at para 32. for a disclosure to qualify for protection it must show that the employee reasonably believed that the information disclosed and any allegation contained in it was substantially true. Radebe and Another v Premier, Free State Province and Others (2012) 33 ILJ 2353 (LAC) at 2366 para 20. [20] Broadly, s 1 contains two qualifying requirements for a disclosure that will be regarded as protected in terms of the PDA. These are that the employee making the disclosure must have reason to believe that the information disclosed shows or tends to show that an impropriety has been committed or continues to be perpetrated. These are the general requirements found in s 1 in terms of which all disclosures have to comply in addition to the specific requirements found in the particular section within which the disclosure is sought to be located....[18] An occupational detriment is defined in section 1 by reference to a number of instances that could occur in the employment environment arising from the making of a disclosure by an employee. For purposes of this judgment, the following instances are relevant: subjecting an employee to any disciplinary action; dismissing, suspending, demoting, harassing or intimidating an employee. Furthermore, the wrongdoing targeted by the PDA is referred to as an impropriety. This is defined as any conduct falling within any of the seven instances of wrongdoing . the so-called seven types of improprieties. State Information Technology Agency (Pty) Ltd v Sekgobela (2012) 33 ILJ 2374 (LAC) at 2384 para 28. [28] What has to be determined is whether the disclosure was made in good faith by the respondent, that he reasonably believed that the wrongdoing he disclosed fell within matters which, in the ordinary course, are dealt with by the appellant and that the information he disclosed is substantially true. An affirmative answer to these questions means that disclosure was protected....[15] In cases where it is alleged that the dismissal is automatically unfair, the situation is not much different save that the evidentiary burden to produce evidence that is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place rests on the applicant [employee]. If the applicant succeeds in discharging his evidentiary burden then the burden to show that the reason for the dismissal did not fall within the circumstances envisaged by s 187(1) of the LRA rests with the {employer]. It is evident therefore that a mere allegation that there is a dismissal is not sufficient but the employee must produce evidence that is sufficient to raise a credible possibility that there was an automatically unfair dismissal. good faith JS557/12 Ndzuta v South African Police Services and Another (JS557/12) [2017] ZALCJHB 68 (23 February 2017) Employee alleging unfair discrimination and occupational detriments as reasons for his dismissal ; evidence showing that employees allegation unfounded and based on hearsay; employee failing to prove that he suffered either occupational detriment or unfair discrimination. Evidence proving that employee unhappy to be managed by people less qualified than him. Employee failing to establish a causal link between the alleged disclosure and his dismissal. Employees claim dismissed. Radebe and Another v Premier, Free State Province and Others (2012) 33 2353 (LAC) at paras 35 and 36. [35] There is further, in my view, an overlap when determining whether the employee making the disclosure was acting in good faith and further whether he had the requisite reason to believe when making a disclosure that improprieties had been committed or were continuing. Honesty plays a pivotal role in both situations. Whilst good faith and honesty may conceivably amount to the same thing, I am of the view that a case by case approach is the proper one for a court considering these issues. Factors such as reckless abandon, malice or the presence of an ulterior motive aimed at self-advancement or revenge, for instance, would lead to a conclusion of lack of good faith. A clear indicator of lack of good faith is also where disingenuity is demonstrated by reliance on fabricated information or information known by the employee to be false. The absence of these elements on the other hand is a strong indicator that the employee honestly made the disclosure wishing for action to be taken to investigate it.[36] Simply stated if an employee discloses information in good faith and reasonably believes that the information disclosed shows or tends to show that improprieties were committed or continue to be committed then the disclosure is one that is protected. The requirement of reason to believe cannot be equated to personal knowledge of the information disclosed. That would set so high a standard as to frustrate the operation of the PDA. Disclosure of hearsay and opinion would, depending on its reliability, be reasonable. A mistaken belief or one that is factually inaccurate can nevertheless be reasonable, unless the information is so inaccurate that no one can have any interest in its disclosure. (See also the statement in Babula (supra) at para 41 where it was held that: Darnton seems to me clear authority for the proposition that whilst an employee claiming the protection of ERA 1996, section 43(1) must have a reasonable belief that the information he is disclosing tends to show one of more of the matters listed in section 43B(1)(a) to (f), there is no requirement upon him to demonstrate that his belief is factually correct; or, to put the matter slightly differently, his belief may still be reasonable even though it turns out to be wrong.) If the primary or exclusive purpose of reporting is to embarrass or harass the employer the reasonableness of the employee's belief is also questionable. (Footnotes omitted) Abuse of act by employee JA36/2018 National Institute for the Humanities and Social Sciences (NIHSS) v Lephoto and Another (JA36/2018) [2019] ZALAC 65; [2020] 3 BLLR 257 (LAC) (12 September 2019) [6]...was a clear nexus between this disclosure and his dismissal which had resulted in an occupational detriment as defined in the PDA. ..[32]...first question that has to be answered in the affirmative in order for respondents case to be justified is whether there was a protected disclosure as defined in the PDA...[34] The key question in the present case is whether respondent had a reason to believe [49]...However, the PDA was not enacted to encourage employees, whose own conduct renders them liable to dismissal, to exploit this legislation in a desperate attempt to fend of the inevitable consequences of their own actions or performance. That the PDA should be interpreted generously in order to vindicate its purpose is one thing, but in a case such as the present, where the facts are overwhelmingly in support of the conclusion that its provisions were abused, the court should have no truck with an attempt to invoke its protection. good faith JS955/201 Ward v Oraclemed Health (Pty) Ltd (JS955/2016) [2018] ZALCJHB 309 (2 October 2018) Radebe and Another v Premier Free State Province and Others [2012] 12 BLLR 1246 (LAC). There is further, in my view, an overlap when determining whether the employee making the disclosure was acting in good faith and further whether he had the requisite reason to believe when making a disclosure that improprieties had been committed or were continuing. Honesty plays a pivotal role in both situations. Whilst good faith and honesty may conceivably amount to the same thing, I am of the view that a case by case approach is the proper one for a court considering these issues. Factors such as reckless abandon, malice or the presence of an ulterior motive aimed at self-advancement or revenge, for instance, would lead to a conclusion of lack of good faith.[3](Own emphasis) [20] During cross-examination it transpired that despite all the concerns that the applicant had, she was aware of the internal grievance procedure to be followed but she opted not to use one, Kroukam v SA Airlink (Pty) Limited (2005) 12 BLLR 1172 (LAC), at para 28. an evidentiary burden lies with such dismissed employee to show that there is a legitimate claim for automatically unfair dismissal Govan v Skidmore[1952] 1 All SA 54 (N) [27] In this matter, I must take into account that the test is one of balance of probabilities, in that a party whose version of facts appears to be more probable is entitled to an order, and that if there is an issue that has to be decided based on an inference, a court has to select a conclusion which seems to be the more natural, or plausible, conclusion from among several considerable ones, even though that conclusion be not the only reasonable one SA Municipality Workers Union National Fund v Arbuthnot (2014) 25 ILJ 2434 (LAC), at para 15. the respondent says the applicant acted mala fide as she presented the information to the FSB being motivated by being vindictive. I have to remind myself that the issue is about the reasonableness of the belief, not of the reasonableness of the information disclosed. Mbethe v United Manganese of Kalahari (Pty) Limited (503/2016) [2017] ZASCA 67; 2017 (6) SA 409 (SCA) (30 May 2017). good faith based on the state of mind using inference said,[20] In our law it would not be a matter of mere assertion by an applicant that he possesses the requirement of good faith. Although the test for good faith is subjective, relating as it does to the state of mind of an applicant, it is nevertheless subject to an objective control. The state of mind of an applicant has to be determined by drawing inferences from the objective facts, as revealed by the evidence.[21] The appellant states that he has acted in good faith in order to protect the interests of the respondent. The Respondent denies this and alleges that the appellant lacks an honest purpose in seeking leave to institute a derivative action in the name and on behalf of, the respondent. The dispute is whether the appellant has misrepresented his state of mind. Communication Workers Union v Mobile Telephone Network (Pty) Ltd and another ZALC 59 (26 May 2003) (2003) ,24 ILJ 1670 (LC) (MTN) at para 21, where Van Niekerk AJ of this Court said: The disclosure must also be made in good faith. An employee who deliberately sets out to embarrass or harass an employer is not likely to satisfy the requirements of good faith. (Own emphasis) However, as I have noted, the protection extended to employees by the PDA is not unconditional. The PDA sets the parameters of what constitutes a protected disclosure, as well as the manner of permissible disclosure by workers. The definition of disclosure clearly contemplates that it is only the disclosure of information that either discloses or tends to disclose forms of criminal or other misconduct that is the subject of protection under the PDA. The disclosure must also be made in good faith. An employee who deliberately sets out to embarrass or harass an employer is not likely to satisfy the requirement of good faith. It does not necessarily follow though that good faith requires proof of the validity of any concerns or suspicions that an employee may have, or even a belief that any wrongdoing has actually occurred. The purpose of the PDA would be undermined if genuine concerns or suspicions were not protected in an employment context even if they later proved to be unfounded. There is no doubt why disclosures made in general circumstances require in addition to good faith a reasonable belief in the substantial truth of the allegation. However more extensive the rights established by the PDA might be in the employment context, I do not consider that it was intended to protect what amounts to mere rumours or conjecture. SA Municipality Workers Union National Fund v Arbuthnot (2014) 35 ILJ 2434 (LAC) Good faith, in my view, entails in part that there should be no ulterior motive, revenge or malice in making the disclosure. It is common cause that the respondent did not claim protected disclosure at the disciplinary hearing and that her reliance on protected disclosure only surfaced for the first time during the proceedings before the Labour Court. The inference that the appellant wants this Court to draw is that the reliance on the protected nature of the disclosure was more of an afterthought, in an attempt to downplay the tendency of the respondent to disregard the employers instruction. [21]And in addition, it is also a requirement that the party making the disclosure intends thereby for the wrong disclosed to be remedied, or addressed, in some way.[22] nexus J1485/2019 Gallocher v Social Housing Regulatory Authority and Another (J1485/2019) [2019] ZALCJHB 162; (2019) 40 ILJ 2723 (LC) (3 July 2019) Matlosana Local Municipality supra Thus, what I am required to establish is the 'proximate cause' of the disciplinary enquiry. It is clear that a disciplinary enquiry against an employee need not necessarily be the direct result of a disclosure. I propose that a useful and practical approach is to consider factors such as (i) the timing of the disciplinary enquiry; (ii) the reasons given by the employer for taking the disciplinary steps; (iii) the nature of the disclosure; (iv) and the persons responsible within the employer for taking the decisions to institute charges. should not cover personal grievances made against senior employees J1914/19 Luthuli v South African National Blood Service and Another (J1914/19) [2019] ZALCJHB 296 (30 October 2019) [26.18]...The conduct the applicant complained of relates in essence to his own personal grievances that have evolved between him and the CEO over time since the latter took over. The definition of a protected disclosure is extremely wide, but it could not have been envisaged that it should cover personal grievances made against senior employees. To the extent that central to the applicants complaint in regards to the tip-offs is that the CEO interfered with the policy in that regard, whether that constituted an unlawful or criminal conduct is not for this Court to decide. [26.19]...The strident language of the grievance is further a strong indication that the disclosure is not made good faith as required by the PDA, as what he seeks is to ensure that not only are his grievances dealt with, but that the CEO equally faces some consequences. 26.22 To the extent that the whistle-blowing procedures were not followed as conceded by the applicant, and further in the light of the views expressed in this judgment about whether the disclosures, if any were made, and also in good faith, it is doubted that on the face of it, there is causal link between the protected disclosures and the occupational detriment. In this regard, the applicant conceded that indeed he had recorded the EXCO meeting using his own mobile phone. If the respondents had reason to believe that the actions of the applicant constituted misconduct deserving an investigation, that is a matter within their prerogative. Van Alphen v Rheinmetall Denel Munition (Pty) Ltd ([2013] 10 BLLR 1043 (LC); (2013) ILJ 34 3314 (LC) at para 22 26.15 It is further trite that the scheme of the PDA encourages internal procedures and remedies to be exhausted before the disclosure is made public.[17] In Alphen v Rheinmetall Denel Munition, it was further confirmed that the lodging of a grievance does indeed constitute an exercise of a right conferred by the LRA for the purposes of a claim of automatically unfair dismissal under section 187(1) of the LRA. This was because the act of lodging a grievance is merely an assertion of a right not to be treated unfairly, something which is guaranteed under the protection of fair labour practices enshrined in section 23(1) of the Constitution and section 185(b) of the LRA.[18] Kabe v Nedbank Ltd (2018) 39 ILJ 1760 (LC) at para [29] The grievances by the applicant do not meet the definition set out above (Definition of protected disclosure in Section 1 of the PDA). At a workplace, it is awaited that employees would be aggrieved now and then. It is for that reason that a good practice dictates that an employer should have in place a dedicated procedure to deal with employees grievances. Some grievances have merit whilst others do not. Regard being had to the preamble of the PDA, it was not enacted to allow employees to disparage their employers. Ordinarily, grievances are more about personal feelings of employees. The PDA is not intended to deal with personal feelings but with criminal and irregular conduct. It is largely concerned with more serious breaches of legal obligations. DA1/2019 Baxter v Minister of Justice and Correctional Services and Others (DA1/2019) [2020] ZALAC 27; [2020] 10 BLLR 968 (LAC) ; (2020) 41 ILJ 2553 (LAC) (18 May 2020) [11]... whether or not an internal disciplinary proceeding is permitted to proceed in the face of a section 188A(11) referral. The first issue, though, is whether the application is urgent. J157/21 Pedlar v Performing Arts Council of Free State (J157/21) [2021] ZALCJHB 45 (24 March 2021) [16] The referral in terms of section 188A(13) and the chairpersons ruling could not be the trigger for urgency. Had the applicant genuinely believed that the first respondent had caused him occupational detriment as envisaged in the Protected Disclosure Act, he could have sought relief when he was placed on precautionary suspension. This Court has on numerous occasions held that a party that approaches this Court on an urgent basis for an interdict at his leisure must be denied relief.[6] This is such a case as the urgency was clearly self created. For this reason alone, this application ought to be struck off the roll for lack of urgency. requirements JS468/19 Kekana v Railway Safety Regulator (JS468/19) [2021] ZALCJHB 395 (13 October 2021) [35]...When regard is had to the definition of a disclosure, five elements must exist, and those are: (a) disclosure of information, information being facts provided or learned about something or someone[10]; (b) the employee must believe that the disclosure is made in the public interest not self-serving interest; (c) if the employee hold such a belief, it must be held reasonably; (d) the employee must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) (g); and lastly (e) if the employee does hold such belief, it must be reasonably held.[11] The question whether all the five elements have been established, an evaluative judgment by the Court, in the light of all the facts of the case, is required. Often time this exercised is squared up with the reason to belief requirement as set out in the section. [42] Therefore, this Court arrives at a conclusion that the first leg of the enquiry as suggested in TSB Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey[[2019] 40 ILJ 1224 (LAC).] has been satisfied. This Court is satisfied that Kekana made a disclosure to the CFO, Kgare, and the board member. [48] In Qonde v Minister of Education, Science and Innovations and others[16], this Court stated that good faith means honesty or sincerity of an intention[17]. The conclusion this Court reaches is that Kekana was honest and sincere when he disclosed the information from 10 January 2018 up to and including 15 March 2018. Kekana only knew on 22 March 2018, literally few days after escalating the disclosures to the board, that he was to be disciplined. [57] The test for determining the true reason for the dismissal was laid down in SACWU v Afrox Ltd[[1999] 20 ILJ 1718 (LAC)] and it is to first determine the factual causation by asking whether the dismissal would have occurred if Kekana had not make the protected disclosure. If the answer is yes, then the dismissal is not automatically unfair. If the answer is no, that does not immediately render the dismissal automatically unfair, the next issue is one of legal causation, namely whether such making of the disclosure was the main, dominant, proximate or the most likely cause of the dismissal.[Numsa and others v Aveng Trident Steel and another [2019] 40 ILJ 2024 (LAC) at Para 68 and Baxter supra at para 84.] [61] In summary, for all the above reasons, this Court reaches a conclusion that Kekana made a protected disclosure and the real reason for his dismissal is that he made a protected disclosure. no evidence before this Court of a disclosure made in good faith JS552/18 Josie v Amity International School and Another (JS552/18) [2021] ZALCJHB 441 (9 November 2021) [57] Mrs. Josie has failed to prove that her dismissal is on account of her having made a protected disclosure. There is no evidence before this Court of a disclosure made in good faith by Mrs. Josie. Mrs. Josie failed to present any evidence whatsoever, regarding any bribery and corruption of Mrs. Kotze and other educators by Mrs. Mooloo or the Mooloo family. Her complaint therefore, does not fit into the definition of 'disclosure' as defined in the PDA. The evidence before this Court is that no contravention of any policy took place with regard to Miss Mooloo writing tests separately. Urgent application without referring dispute to CCMA J 1480/2021 NEHAWU obo N Phathela v Office of the Premier: Limpopo Provincial Government and Others (J 1480/2021) [2022] ZALCJHB 8 (7 February 2022) [13] In the light of the above, this Court has no jurisdiction to grant the final order sought. The matter, if alleged to constitute an occupational detriment that arose as a result of a protected disclosure, will be deemed an unfair labour practice under section 4(2)(b) of the PDA. When read with section 191(13) of the LRA the matter must be referred to conciliation and a certificate of non-resolution must be issued before this Court can decide whether to grant the final relief sought. This is a jurisdictional prerequisite for this Court to determine an application for final relief that a disciplinary hearing constitutes a protected disclosure. The applicant (employee) party bears the evidentiary burden in this enquiry.[The applicant (employee) party bears the evidentiary burden in this enquiry.[56]]...[87] I am satisfied that what the applicant was witnessing in the period between 29 January and 1 February 2018, from his reasonable perspective, was the committing of impropriety in contravention of the FAIS Act and its regulatory provisions...[90]...In my view, it is like selling someone else’s property without their permission. JS 751 / 18 Smyth v Anglorand Securities Ltd (JS 751 / 18) [2022] ZALCJHB 72 (28 March 2022) (TO WHO MAKING A DISCLSURE): [51] Next, when would the disclosure be a protected disclosure? In deciding this, the Court in Palace Group Investments (Pty) Ltd and Another v Mackie[(2014) 35 ILJ 973 (LAC) at para 15.] gave the following guidance: not all disclosures are protected in the sense of protecting the employee making the disclosure from being subjected to an occupational detriment by the employer implicated in the disclosure. A protected disclosure is defined as a disclosure made to the persons/bodies mentioned in ss 5, 6, 7, 8 and 9 and made in accordance with the provisions of each of such sections. In terms of s 6, for a disclosure to fall within the ambit of a protected disclosure it must have been made in good faith. It is clear that before other provisions of the PDA can come into play, the disclosure allegedly made must answer to the definition of that term as set out in the definitions section [52] Section 5 of the PDA provides that a disclosure made to a legal practitioner with the object of and in the course of obtaining legal advice is a protected disclosure. Section 6 provides for the disclosure to be made to the employer of the employee, and prescribes that the disclosure must be made in good faith and pursuant to the procedure prescribed by the employer for making such disclosure where such a procedure exists.[21] Sections 8(1)(a) and (b) provide for various prescribed bodies to which a protected disclosure can be made, namely the Public Protector, South African Human Rights Commission, Commission for Gender Equality, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Public Service Commission and the Auditor-General, provided once again that the disclosure is made in good faith.[22] Section 8(1)(c) adds the further requirements that the employee must reasonably believe that the relevant impropriety falls within any description of matters which in the ordinary course are dealt with by that person or body concerned, and that the information and any allegation contained in the disclosure are substantially true. [55] What the above prescribed structure for making disclosures shows is that there are different considerations applicable to determining whether a disclosure qualifies as a protected disclosure, depending upon the person or body to which the disclosure has been made. As held in Tshishonga supra:[Id at para 198.]The tests are graduated proportionately to the risks of making disclosure. Thus the lowest threshold is set for disclosures to a legal adviser. Higher standards have to be met once the disclosure goes beyond the employer. The most stringent requirements have to be met if the disclosure is made public or to bodies that are not prescribed, for example the media. (good faith): [56] However, and what is clear from all these prescripts, save of course only where the disclosure is made to a legal representative for the purposes of seeking legal advice, is the core requirement of the existence of good faith when the disclosure is made. One must however be careful not to set the bar of good faith too high, as doing so may very well defeat the purposes of what the PDA seeks to achieve, as recognized in Radebe and Another v Premier, Free State Province and Others[(2012) 33 ILJ 2353 (LAC) at para 34.]. So, it is important to decide what would constitute good faith for the purposes of protection under the PDA, which I turn to next. [57] First, good faith, or bona fides, depending how one wants to call it, goes hand in hand with the requirement of reason to believe that the information constitutes an impropriety as defined in section 1(1) of the PDA. As said in Radebe supra:[Id at para 33. See also Tshishonga (supra) at para 186.] If the employee believes that the information is true it would fortify the reasonableness of his belief from which, in turn, his bona fides can be inferred . The Court in Radebe gave the following instructive views as to how bona fides can be inferred:[] Whilst good faith and honesty may conceivably amount to the same thing, I am of the view that a case by case approach is the proper one for a court considering these issues. Factors such as reckless abandon, malice or the presence of an ulterior motive aimed at self-advancement or revenge, for instance, would lead to a conclusion of lack of good faith. A clear indicator of lack of good faith is also where disingenuity is demonstrated by reliance on fabricated information or information known by the employee to be false. The absence of these elements on the other hand is a strong indicator that the employee honestly made the disclosure wishing for action to be taken to investigate it. The Court in Radebe concluded:[27]Simply stated if an employee discloses information in good faith and reasonably believes that the information disclosed shows or tends to show that improprieties were committed or continue to be committed then the disclosure is one that is protected. The requirement of 'reason to believe' cannot be equated to personal knowledge of the information disclosed. That would set so high a standard as to frustrate the operation of the PDA. [58] It is important to appreciate that it is not necessary for the purposes of establishing good faith that it be proven that information disclosed was correct or true.[28] By definition, and in making the disclosure, the employee must only have reason to believe, not that the information is actually true, but that the information shows or tends to show that the impropriety has been or is being or may be committed in the future.[29] In applying these concepts, the Court in Baxter v Minister of Justice and Correctional Services and Others[(2020) 41 ILJ 2553 (LAC) at para 67.] held: it is important to note that the PDA does not require that the disclosures made are factually correct. The phrase tends to show in s 1 of the PDA intends that it is sufficient if the information in the disclosure is indicative of an impropriety. Likewise, the requirement that the employee merely have a reason to believe that the information points to an irregularity does not require personal knowledge of the information disclosed. That would set too high a standard frustrating the operation of the PDA. Hearsay information, depending on its nature and cogency, may provide a basis for a reasonable belief of possible irregularity.[59] Also in the above context, the Court in John v Afrox Oxygen Ltd[(2018) 39 ILJ 1278 (LAC) at para 26. The Court was referring in the quoted passage to SA Municipal Workers Union National Fund v Arbuthnot (2014) 35 ILJ 2434 (LAC) at para 15. See also para 28 of the judgment in John v Afrox where it was held: In holding that the appellant should prove the correctness of the facts for existence of the belief in order to enjoy protection, the court a quo elevated the requirement of the reasonableness of the belief to one of the accuracy of the facts upon which the belief was based. This sets a higher standard than what is required by the PDA, and such a requirement would frustrate the operation of the PDA .] held: In Arbuthnot, the court held that the enquiry is not about the reasonableness of the information, but about the reasonableness of the belief. This is so because the requirement of reasonable belief does not entail demonstrating the correctness of the information, because a belief can still be reasonable even if the information turns out to be inaccurate.[60] The fact that the information concerned may be sensitive to an employer or possibly expose it to possible reputational harm, cannot serve to strip the employee from protection in terms of the PDA. This was appreciated in Potgieter v Tubatse Ferrochrome and Others[(2014) 35 ILJ 2419 (LAC) at para 31. See also State Information Technology Agency (Pty) Ltd v Sekgobela (2012) 33 ILJ 2374 (LAC) at para 31, where the Court accepted that the legitimacy of any disclosure does not depend on how it is treated by whoever it is made to.] where the Court held: While due regard must be paid to the reputational damage that an organization may suffer as a result of disclosure of adverse information which is prejudicial to its commercial interests, I am of the view that a finding that the mere disclosure of sensitive information renders the employment relationship intolerable would, in my view, seriously erode the very protection that the abovementioned legal framework seeks to grant to whistleblowers. (the motives of the employee): [61] Whilst it may be important to consider the motives of the employee in making the disclose, it is not necessary for the motives of the employee in making the disclosure to be as pure as the driven snow. The fact that an employee may have some ulterior motives cannot of its own scupper good faith. I venture to say that where ulterior motives or personal aspirations of the employee form the driving force behind making the disclosure, and are coupled with elements like dishonesty, corruption, false statements, and retribution, that good faith will fall by the wayside.[See Arbuthnot (supra) at para 23. In Sekgobela (supra) at para 32, it was held that: an ulterior motive such as personal antagonism which might have been the predominant purpose for making the disclosure , was incompatible with good faith. In Ngobeni v Minister of Communications and Another (2014) 35 ILJ 2506 (LC) at para 54, the Court referred to factors such as lack of honest intention, malice, ulterior motive, a quest for revenge, reckless abandon, a quest for self or others advancement, and attempts to divert attention from one's or others' wrongdoing and involvement in criminal or acts of misconduct , as negating good faith.] In short, mixed motives are not incompatible with the existence of good faith as required by the PDA. This was recognized in Baxter supra, where the Court said:[34]In any event, the fact that the appellant may have acted partly out of ulterior motive does not mean that he did not act in good faith (or acted in bad faith) by making the disclosure. Good faith must be assessed contextually on a case-by-case basis, taking account of various factors at play in the specific case. Acting with an ulterior motive is not necessarily the same as acting in bad faith. Acting in bad faith in a strict sense refers to a dishonest intention or a corrupt motive. The information in the disclosures made by the appellant was in fact true in important respects. The appellant did not deceitfully manufacture information or unreasonably exaggerate the wrongdoing that had taken place. There were real problems with the manner in which appointments were being made in the region for which Nxele was responsible. The fact that the appellant acted with some personal animosity or spite is not alone sufficient to conclude that he did not act in good faith. His earlier attempts to challenge the decisions, while somewhat tentative, and perhaps self-serving, reveal that by the time he belatedly made the disclosures (some weeks after being threatened by Nxele) he had mixed motives. In the circumstances it cannot be said that the appellant did not make the disclosures in good faith. In the result, the disclosures he made were protected disclosures in terms of the PDA [62] I do accept that the PDA cannot serve as open licence to be abused by employees in order to hide or escape their own misconduct, performance issues or other forms of serious transgressions on their part.[See Tshishonga (supra) at para 170, where it was said: Employees also have to act in the employer's best interest, to observe its right to confidentiality, to be loyal and ultimately to preserve its viability, good name and reputation . Another example can be found in Legal Aid SA v Mayisela and Others (2019) 40 ILJ 1526 (LAC) at para 63, where it was held that where an employee threatens to report the employer to authorities, this threat does not constitute the disclosure of information as contemplated by the PDA.] That is why the motives of an employee would nonetheless always be an important consideration when deciding on the issue of good faith. As held in Lephoto supra:[] the PDA was not enacted to encourage employees, whose own conduct renders them liable to dismissal, to exploit this legislation in a desperate attempt to fend off the inevitable consequences of their own actions or performance. That the PDA should be interpreted generously in order to vindicate its purpose is one thing, but in a case such as the present, where the facts are overwhelmingly in support of the conclusion that its provisions were abused, the court should have no truck with an attempt to invoke its protection. (what the employee requires to be done in making the disclosure): [63] A further consideration relevant in assessing whether good faith exists is what the employee requires to be done in making the disclosure. For example, where the employee asks that the wrong be further investigated, or remedied, or be addressed by a responsible authority, that would an indicator of the existence of good faith.[37] It is however not a stated purpose of the PDA to ensure that the subject matter of the disclosure made be investigated or dealt with, as the PDA rather centres around the protection of the employee for making the disclosure.[City of Tshwane Metropolitan Municipality v Engineering Council of SA and Another (2010) 31 ILJ 322 (SCA) at para 33.] (section 9 of the PDA): [65] Good faith aside, where the disclosure is made to a third party, meaning a party other then one of the parties prescribed in sections 5, 6, 7 and 8 of the PDA, there are additional qualifying requirements under section 9 of the PDA, other than the general requirements of reasonable belief and good faith in making the disclosure, for it to be protected. In these cases, the employee must establish, in sequence, that: (1) the employee reasonably believed that the information was substantially true; (2) the disclosure was not made for the purposes of personal gain;[40] (3) at least one of the conditions in section 9(2) applies;[41] and (4) it was reasonable to have made the disclosure.[See Malan v Johannesburg Philharmonic Orchestra (JA 61/11) [2013] ZALAC 24 at para 29.][66] What is immediately evident from section 9 is that there is an enhanced and double requirement of reasonableness, so to speak. First, the employee must reasonably believe that the information is substantially true, which is a higher standard than the ordinary good faith requirement of a reasonable belief that the information is true. I venture to say that in order to establish a reasonable belief that the information is substantially true, the employee must show the existence of an objective justification for his or her belief that the information is true.[43] As said in Tshishonga supra:[44] Information of quality and quantity go to determining whether the disclosure is substantially true . Second, and even if the employee has a reasonable belief that the information is substantially true, the employee must also show that it was reasonable to have made the disclosure in the first place. Thus, it follows that the employee must provide reasonable justification as to why the disclosure could not have been dealt with internally in the employer, rather than the disclosure being made to a third party.[45] It is in this context that section 9(3) provides guidance, setting out a number of considerations that can be applied to determine whether it was reasonable to make the disclosure. (information concerned is actually true, but with an ulterior or malicious motive): [67] Interestingly however, if it is shown that the information concerned is actually true, the fact that it may have been disclosed to such a third party with an ulterior or malicious motive, would not disqualify the disclosure from still being a protected disclosure. This was recognized in Tshishonga supra where the Court held:[]A malicious motive cannot disqualify the disclosure if the information is solid. If it did, the unwelcome consequence would be that a disclosure would be unprotected even if it benefits society. Such might be the case of an accountant who out of malice discloses to SARS that his employer is evading taxes. Or, an employee of a trade union who bears a grudge against its management might blow the whistle to the registrar of trade unions that the trade union is not complying with its constitution and the LRA. A malicious motive could affect the remedy awarded to the whistle-blower. ...[94] But even if some kind of malice or ulterior motive can be attributed to the applicant, this still does not assist the respondent. Where the information disclosed is actually true, which I believe was the case in this instance, then the issue of a motive becomes largely irrelevant. (not make the disclosure as a quid pro quo for being promised some benefit, payment, advantage or other kind of reward): [68] Finally, and as to the requirement of personal gain, the employee must not make the disclosure as a quid pro quo for being promised some benefit, payment, advantage or other kind of reward. This obviously does not include a legally prescribed benefit or reward.[47] In other words, the employee must not be in it for the money, but rather with the altruistic motivation of exposing perpetrators of maleficence in the interest of society and / or victims of such unlawful conduct. (occupational detriment and if there is more than one reason for a dismissal): [69] Once it has been established that the employee has made a disclosure of information which qualifies as a protected disclosure under the PDA, the next step is to then determine whether the employee has been visited with an occupational detriment by his or her employer as a result of or because of making such a protected disclosure.[48] This entails the application of a causation test. In TSB Sugar supra[Id at paras 94 95. See also Lowies v University of Johannesburg (2013) 34 ILJ 3232 (LC) at para 51] the Court dealt with this consideration as follows: The phrase on account of means owing to, by reason of or because of the fact that. The phrase is used to introduce the reason or explanation for something for the purposes of the present discussion, the reason or explanation for the occupational detriment. The word partly means not completely, not solely, not entirely or not fully. A finding that an employee was subjected to an occupational detriment on account of having made a protected disclosure will be based on a conclusion that the sole or predominant reason or explanation for the occupational detriment was the protected disclosure; whereas a finding that an employee was subjected to an occupational detriment partly on account of having made a protected disclosure will be to the effect that the protected disclosure was one of more than one reason for the occupational detriment. Section 3 of the PDA thus casts the net wide. If there is more than one reason for a dismissal, the PDA will be contravened if any one of the reasons for the dismissal is the employee having made a protected disclosure. The wide scope of protection is consistent with the purposes of the PDA which addresses important constitutional values and injunctions regarding clean government and effective public service delivery. [70] The point is that once it is shown that the protected disclosure was the main reason why the employee was dismissed, it simply does not matter if the employees dismissal may have been justified for other secondary reasons, as the employer is, by virtue of the provisions of section 187(1) of the LRA, prohibited from offering any other substantive defence to the dismissal. This was made clear in Baxter supra[50] where the Court said: Section 187(1) of the LRA lists reasons for which employees may not be dismissed (including making a protected disclosure under the PDA) and categorises such dismissals as automatically unfair. If it is proved that the employee was dismissed for any of the reasons specified in s 187(1) of the LRA, the employer cannot raise a defence based on the alleged fairness of the dismissal. The employer cannot claim that a dismissal for a proscribed reason was necessary for any other secondary reason, even if it can be argued that the dismissal was effected for a permissible reason related to the employees conduct or capacity or the employers operational requirements.[71] In determining whether the protected disclosure was the main reason for the dismissal of the employee, the well-known causation test as enunciated in SA Chemical Workers Union and Others v Afrox Ltd[51] finds application. As held in Baxter supra:[52] there may be different reasons for dismissing an employee and an employer is entitled to argue that the reason for the dismissal was not for a reason proscribed by s 187(1) of the LRA but for a fair reason based on incapacity or misconduct. The question will then trigger a causation enquiry. The essential enquiry is whether the reason for the dismissal is one proscribed by s 187(1) of the LRA, in this case the one in s 187(1)(h) of the LRA which proscribes the dismissal of an employee for making a protected disclosure (the but for test): [72] In simple terms, this causation test involves what is in essence a two-stage enquiry.[See Baxter (supra) at paras 60 and 84; Mashaba v Telkom SA (2018) 39 ILJ 1067 (LC) at para 34.] The first part of the enquiry is to determine whether the dismissal of the employee would have taken place even if the employee did not make the protected disclosure, or in other words, the but for test. If the answer to this is yes, then the dismissal cannot be automatically unfair, because the necessary causation between the protected disclosure and the dismissal is absent. However, if the answer is no, then the second stage of the enquiry must be applied, being a determination whether the disclosure was the dominant, main, proximate or most likely cause of the dismissal.[In Independent Municipal and Allied Trade Union and Another v City of Matlosana Local Municipality and Another (2014) 35 ILJ 2459 (LC) at para 77, the Court said: Thus, what I am required to establish is the proximate cause of the disciplinary enquiry. It is clear that a disciplinary enquiry against an employee need not necessarily be the direct result of a disclosure. I propose that a useful and practical approach is to consider factors such as (i) the timing of the disciplinary enquiry; (ii) the reasons given by the employer for taking the disciplinary steps; (iii) the nature of the disclosure; (iv) and the persons responsible within the employer for taking the decisions to institute charges. See also Gallocher (supra) at para 74.] If the answer to this question is yes, then the dismissal would be automatically unfair, and if no, it would not....[116] Firstly, and when applying the but for first part of the causation test, it can easily be said that if it was not for making the disclosure, the applicant would never have been disciplined, let alone dismissed...[119] There is however a piece of evidence by Carter that in my view goes a long way towards showing that but for the disclosure, the applicant would never have been disciplined. Carter testified that when he consulted Fluxmans about the disclosure, he was asked why did he not dismiss the applicant. It is in the context of this discussion that Carter was asked by Fluxmans to collect evidence and then provide it to Fluxmans, which in my view was a deliberate stratagem to bring about the dismissal of the applicant. [114] In sum, I conclude that the disclosure made by the applicant to the FSB on 5 February 2018, as copied to both Carter and Ma, constituted a proper and legitimate protected disclosure as contemplated by the PDA. The information disclosed qualified as information contemplated by the PDA in section 1(1) thereof. The disclosure was made in circumstances where the applicant reasonably believed the information was substantially true (the information disclosed was in fact true). The applicants conduct in making the disclosure was in good faith, and pursuant to what he saw as his obligations under the relevant applicable regulatory provisions. And finally, when applying section 9(1), the applicant has satisfied the conditions in sections 9(2)(a) and (d), the applicant obtained no benefit from the disclosure, and it was reasonable to have made the disclosure in the first place. The following dictum from the judgment in City of Tshwane Metropolitan Municipality v Engineering Council of SA and Another[(2010) 31 ILJ 322 (SCA) at para 45.], where the Court accepted a protected disclosure had been made by the employee, can equally be applied to the conduct of the applicant in casu: The effect of these provisions is that the disclosure would be protected if Mr Weyers acted in good faith; reasonably believed that the information disclosed and the allegations made by him were substantially true; was not acting for personal gain and one or other of the conditions in s 9(2)(c) and (d) was satisfied. Mr Pauw rightly conceded that the first three requirements were satisfied. In the light of the evidence summarized earlier in this judgment he could do no less. It is plain that Mr Weyers was throughout painfully aware of his professional responsibilities and of the need to provide residents of Tshwane with a safe and reliable electricity supply. His concern about the dangers arising from appointing people who, after testing, he regarded as insufficiently skilled to undertake the onerous duties attaching to a system operator position shines through each document. His bona fides and his belief in the truth of what he was saying are apparent. As this case shows he made the disclosure at considerable personal cost and not for personal gain. He acted in the discharge of what he conceived, and had been advised, was his professional duty. The disclosure was made to parties that would manifestly be interested in such disclosure. [121] Finally, was the protected disclosure the main, dominant or proximate cause of the dismissal of the applicant, considering all the other misconduct charges. Deciding this question does entail that the substance of the other charges must be considered. Obviously, it is not for this Court to decide if a dismissal based on the other misconduct charges would be substantively fair, as only the CCMA has that jurisdiction. The assessment of the substance of the other misconduct charges is done only in the context of deciding, and putting it as simply as possible, what was the most important reason for the applicant being dismissed. "an automatically unfair dismissal premised on having made a protected disclosure. an automatically unfair dismissal premised on having made a protected disclosure. " JS140/19 Duncan v Swiss-South African Co-Operation Initiative and Others (JS140/19) [2023] ZALCJHB 110 (18 January 2023) [3]... It subsequently came to Mr. Duncan’s attention from community members in the industry in which SSACI participates and to which it contributes, that the Ambassador and seventh respondent (Mr. Setiloane), were raising funds for the Hospitality Programme to the exclusion of SSACI. In Mr. Duncan’s view, their conduct constituted a conflict of interest in relation to their fiduciary duties as Trustees, as they were pursuing a project that was contrary to the interests of SSACI. He contends that he made a protected disclosure when he brought this issue that he perceived to be a conflict of interest, to the attention of the Chairman of the BOT, the third respondent (Mr. Isaacs) in an email dated 12 July 2018. [27] From the aforegoing, it transpires that when an applicant demonstrates that s/he made a protected disclosure as defined in the PDA to his/her employer of an impropriety by his/her employer, s/he must prove that “but for” the disclosure, s/he would not have been dismissed. "[29] Therefore, it is necessary for the Court to evaluate whether the applicant was deceitful and manufactured the information. It bears mentioning that it is trite that the applicant does not have to prove the veracity of information – s/he need only demonstrate that s/he reasonably believed the information s/he disclosed was substantially true.[25] The purport of the PDA is that once a disclosure is made, it is for that employer (or the body to whom the disclosure was made as the case may be), to investigate the issue disclosed. " [40] Therefore, in view of the aforesaid inadequacies in pleadings and the pre-trial minute and in view of the evidence, the issue that this Court is to determine is crisp and that is this: whether the reason for Mr. Duncan’s dismissal is pemised on him making a protected disclosure as defined in the PDA. The onus is therefore on Mr Duncan to prove to this Court that he made a protected disclosure as defined in the PDA and that his disclosure is the main, dominant or proximate reason for his dismissal. If he fails to discharge this onus, then, on the basis of the LAC decision in Baxter v Minister of Justice and Others,[40] with reference to its decision in SA Chemical Workers Union and Others v Afrox Ltd,[41] to which this Court is bound, this Court is to exercise its discretion, if it be expedient to do so, to proceed to determine the substantive and procedural fairness of his dismissal. [77] I accordingly find that Mr. Duncan has discharged the onus on him and he has proved that he made a protected disclosure and he was dismissed on account of, or partly on account of having made the protected disclosure. Employee cannot merely make allegation – Allegation must be one made in good faith J68/23 Mamodupi v Property Practitioners Regulatory Authority and Another (J68/23) [2023] ZALCJHB 19 (13 February 2023) [46] In order for a contravention to arise, an employee must first make a protected disclosure as defined in the PDA and thereafter an employer must subject that employee to an occupational detriment as defined. Section 1 of the PDA defines what a disclosure means. In casu, Mohlala was charged on 15 July 2022. Five days before the scheduled date, she alleged the contravention. It must be so that an employee relying on subsection 188A (11) must allege and prove the disclosure relied on as in when and where it was made. Section 3 refers to “having made a protected disclosure”. It is only an employee who have made a protected disclosure that is capable of being subjected to an occupational detriment. Differently put by subjecting an employee to an occupational detriment, the employer, as it were, punishes that employee for having exposed its wrongdoing. The occupational detriment must be retaliatory in form and be connected to the making of the protected disclosure. "45.1 The employee must make a protected disclosure; 45.2 Thereafter, the employer must subject the employee who already made a protected disclosure to an occupational detriment; 45.3 Once so subjected, an employee must allege honestly and sincerely so that a causal connection does exist between his or her protected disclosure and the occupational detriment. Differently put, it is because of having made a protected disclosure that an employer chose to respond by an occupational detriment. [47] In my view if any of the above stated jurisdictional facts is absent, subsection 188A (11) cannot be invoked. " [51] In practical terms, any request in terms of subsection 188A (11) must be accompanied by the proof of the protected disclosure made, which must predate the charge sheet – commencement of a disciplinary action. Rationality as a species of legality or rule of law require application of mind before a statutory power is exercised. Differently put, the power must be exercised for the purpose for which it was given. Therefore, given the adverse effect that may visit an employer, by being forced into an arbitration like process, when it could have followed a cheaper process, decision makers on such requests must ensure that the jurisdictional requirements exist in order to invoke the statutory power. Axiomatically, if the request is denied, the process of the employer akin to the one suggested in Avril Elizabeth Homes case shall prevail. Disclosure to board member and question of good faith JA126/2021 Railway Safety Regulator v Kekana (JA126/2021) [2023] ZALAC 28 (18 October 2023) "[42] The court a quo concluded, on that basis that the first leg of the enquiry as held in TSB Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey[16] was thus satisfied, that Mr Kekana had indeed made a disclosure to the CFO, who was a board member. [43] The court a quo turned next to enquiring whether the “disclosure” of Mr Kekana was “protected” as contemplated in the PDA. It concluded that it was because it satisfied the requirements of sections 6 and 9 of that Act. [44] Turning to the question of good faith – the court a quo effectively rejected the contention of the appellant that the disclosures were not made in good faith. It found that Mr Kekana did not make the disclosures in an attempt to shield himself from being disciplined and held that, at the time he made the disclosures, “he had no clue that [Ms] Kgare was toying with an idea to charge him for misconduct”; and that, as far as Mr Kekana was concerned, he had dispatched investigators to the scene of the accident. [45] The court a quo found that, on her own version, Ms Kgare had enough reason to confront Mr Kekana if she was not satisfied with the manner in which he had dealt with the investigation of the train accidents, but that she did not do so until much later, after Mr Kekana had made the disclosures. The court a quo accordingly concluded: “[i]t is improbable that [Mr] Kekana made the protected disclosures in order to divert the non-existing charges. [Mr] Kekana had no inkling that he misconducted himself and [was] potentially facing chastisement.” The court a quo further found that Mr Kekana’s honesty and transparency in making the disclosures “demonstrate[d] his bona fides”. [46] Regarding the causal link between Mr Kekana’s dismissal and his disclosures – the court a quo found that Mr Kekana had discharged the burden of establishing the causal link. The timing of the dismissal was considered. Seven days after Mr Kekana had brought the disclosures to the attention of the board Ms Kgare suddenly remembered that Mr Kekana had misconducted himself 3 months earlier in connection with the investigation of the train accident of 4 January 2018 that warranted disciplinary action against him." disciplinary hearing to continue J 58/2024 Mtweta v Transnet Freight Rail and Operating Division of Transnet (SOC) Limited (J 58/2024) [2024] ZALCJHB 17 (29 January 2024) "[26] The answer is to be found in section 4(1)(a) of the PDA as already pointed out elsewhere in this judgment. This therefore implies that a chairperson of a disciplinary enquiry, is not required to enquire into the merits of the alleged protected disclosure, or whether the employee is subjected to an occupational detriment. The Chairperson is indeed obliged to halt the proceedings, but on condition that the employee has made the allegation before the CCMA or Bargaining Council or has already approached the Court for relief as contemplated in section 4(1)(a) or section 4(2)(b) of the PDA. [27] In the absence of these steps having been taken by an employee, it is my view that the Chairperson is not obliged to halt the proceedings purely based solely on a mere allegation by an employee. Further to the extent that the allegations (i.e., a section 188A(11) referral) have not been placed before a forum and are suddenly raised at the enquiry coupled with an intention to approach a relevant forum, it is my view that this is a matter best left for the Chairperson to deal with within his or her discretion, bearing in mind the rights of an employee under section 4 of the PDA. " 32] Transnet is correct in pointing out that from a reading of the founding affidavit, it is difficult to distil what is the protected disclosure that is relied on. Equally so, it is not clear as to when, how and to whom the disclosure was made. The Court equally draws a blank from the section 188A(11) referral to the TBC as attached to the founding affidavit. [37] The above conclusions are further fortified by the very remedies provided under section 4(1)(a) - (b) of the PDA. In this regard, it was further correctly observed in NEHAWU obo N Phathela v Office of the Premier: Limpopo Provincial Government and Others[18] that where an employee alleges that he/she has been subjected to an occupational detriment (in breach of section 3 of the PDA) other than dismissal, such an occupational detriment is deemed to be an unfair labour practice as contemplated by the LRA. A dispute about an occupational detriment (short of dismissal) may be referred to this Court provided that the matter has been referred to conciliation and the matter remains unresolved, and as prescribed by section 4(2)(b) of the PDA. Pre-dismissal arbitration section 188A(12) J1631/23 Ntombela v Community Scheme Ombud Service and Others (J1631/23) [2024] ZALCJHB 121 (12 March 2024) "[13] This Court, in Jacobs and Others v National Commissioner of South African Police Service and Another[2], set out the principles which are applicable to the interpretation of section 188A(11) as follows: “[20] To understand the extent of application of subsection (11) of section 188A, subsection (12) thereof is instructive. It is convenient to set out both subsection (11) and (12) of section 188A: (11) Despite subsection (1), if an employee alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act, 2000 (Act No. 26 of 2000), that employee or the employer may require that an inquiry be conducted in terms of this section into allegations by the employer into the conduct or capacity of the employee. (12) The holding of an inquiry by an arbitrator in terms of this section and the suspension of an employee on full pay pending the outcome of such an inquiry do not constitute an occupational detriment as contemplated in the Protected Disclosures Act, 2000 (Act No. 26 of 2000). [21] Obviously, section 188A(11) is not necessarily a scheme to challenge the alleged occupational detriment in terms of the PDA, per se. However, it is a mechanism aimed at avoiding collateral litigation where an employee claims that, the holding of a disciplinary enquiry into allegations of misconduct or suspension pending such an enquiry, offends the provisions of the PDA. Whilst the PDA protects employees who make a protected disclosure, “section 188A(11) aims to strike a balance between taking no action because the person allegedly guilty of misconduct is a whistle-blower in terms of PDA or allowing a disciplinary process, with the safeguard being that the disciplinary process has to be done in a manner that is entirely independent of the employer. In Nxele, this Court pertinently held that: “[31] In my view, the only proper construction to be accorded to section 188A(11) is that, where an employee or employer requires a pre-dismissal arbitration in terms of section 188A, that request it is imperious. This construction gives effect to the purpose of the legislature which is to provide a degree of protection to employees who make protected disclosures and to avoid parallel litigation, typified in the present case. [32] Basically, following a section 188A(11) request by the employee, the employer is enjoined to institute a pre-dismissal arbitration in terms section 188A. The internal disciplinary enquiry that would have commenced and is pending must terminate…”’ (own emphasis and footnotes omitted)" "[14] In Tsibani v Estate Agency Affairs Board and Others[3] the Court explained the effect of section 188A(11) referral in the following terms: ‘[63] Section 188A(11) is to be understood in the specific context within which it was enacted and is to be applied. Section 188A provides for the appointment of an arbitrator to conduct an inquiry into allegations about the conduct or capacity of an employee. Such a process is on request by an employer, with the consent of the employee, or in accordance with a collective agreement and is to be made in the prescribed form and a prescribed fee is payable. Section 188A(11) provides that if an employee alleges in good faith that the holding of an inquiry contravenes the PDA, that employee or the employer, may require that an inquiry be conducted in terms of section 188A, into the allegations by the employer into the conduct or capacity of the employee. The holding of such an inquiry does not constitute an occupational detriment, as contemplated in the PDA. [64] Section 188A(11) entitles an employee, who is about to be subjected to an internal disciplinary process and who alleges in good faith that the intended disciplinary hearing contravenes the PDA, to instead request an inquiry be conducted in terms of section 188A. I see no reason why, if an employer , under circumstances where the employee complies with the requirements of section 188A(11), refuses to have the inquiry into the conduct or capacity of the employee conducted in terms of section 188A, the employee would not be entitled to approach this Court for an order interdicting the impending internal disciplinary hearing and an order directing that the inquiry pertaining to the employee’s conduct or capacity be conducted in terms of section 188A of the LRA.’ (Emphasis added)" "20] The question of good faith still remains, and the Court in Radebe & Another v Premier, Free State Province and others[5] explained how good faith may be inferred, as follows: ‘[35 ]… Whilst good faith and honesty may conceivably amount to the same thing, I am of the view that a case by case approach is the proper one for a court considering these issues. Factors such as reckless abandon, malice or the presence of an ulterior motive aimed at self-advancement or revenge, for instance, would lead to a conclusion of lack of good faith. A clear indicator of lack of good faith is also where disingenuity is demonstrated by reliance on fabricated information or information known by the employee to be false. The absence of these elements on the other hand is a strong indicator that the employee honestly made the disclosure wishing for action to be taken to investigate it.’ ‘[36] Simply stated if an employee discloses information in good faith and reasonably believes that the information disclosed shows or tends to show that improprieties were committed or continue to be committed then the disclosure is one that is protected. The requirement of 'reason to believe' cannot be equated to personal knowledge of the information disclosed. That would set so high a standard as to frustrate the operation of the PDA. …’" "23] In applying these concepts, the Court in Baxter v Minister of Justice and Correctional Services and Others[6] held: ‘… it is important to note that the PDA does not require that the disclosures made are factually correct. The phrase ‘tends to show’ in s 1 of the PDA intends that it is sufficient if the information in the disclosure is indicative of an impropriety. Likewise, the requirement that the employee merely have a reason to believe that the information points to an irregularity does not require personal knowledge of the information disclosed. That would set too high a standard frustrating the operation of the PDA. Hearsay information, depending on its nature and cogency, may provide a basis for a reasonable belief of possible irregularity.’" Good faith DA 04/2023 National Commissioner Department of Correctional Services v Nxele and Another (DA 04/2023) [2025] ZALAC 9; [2025] 5 BLLR 472 (LAC) (17 February 2025) "[19] In considering whether Mr Nxele had raised the allegation in good faith, the Labour Court relied on the decision of Radebe and Another v Premier, Free State Province and Others[4] (Radebe) in which this Court made reference to the United Kingdom Appeal Court (Civil Division) decision of Street v Derbyshire Unemployed Workers’ Centre.[5] In that matter, it was stated that: ‘Shorn of context, the words “in good faith” have a core meaning of honesty. Introduce context, and it calls for further elaboration. Thus in the context of a claim or representation, the sole issue as to honesty may just turn on its truth. But even where the content of the statement is true or reasonably believed by its maker to be true, an issue of honesty may still creep in according to whether it is made with sincerity of intention for which the Act provides protection or for an ulterior and, say, malicious, purpose. The term is to be found in many statutory and common law contexts, and because they are necessarily conditioned by their context, it is dangerous to apply judicial attempts at definition in one context to that of another.’ " [20] The concept of good faith is sensitive to context. [21] The appellant was aware the first disciplinary hearing instituted against Mr Nxele had been converted into a section 188A(11) inquiry which found that he had raised the allegation in good faith and that the holding of such disciplinary hearing contravened the PDA. Yet, in spite of this, the appellant’s response to the outcome of that inquiry was not only calculated but also unusual in a number of respects. Where an employee has not made a disclosure within the meaning of section 1 of the Protected Disclosure Act (PDA), the provisions of section 188A (11) cannot be invoked...As matters stand, I do not read holding of an inquiry to be an occupational detriment as defined. J683/23 Letakgomo v Johnson Matthey (Pty) Ltd (J683/23) [2025] ZALCJHB 240 (31 May 2025) [15] The fact that it took Matthey a period of three months to unleash the detriment is concerning. Ordinarily, a detriment is in the form of retaliation. It seems improbable that Matthey would waylay, as it were, Letakgomo for three months before unleashing the detriment. Where a sufficient amount of time passes between the alleged disclosure and the detriment, it is difficult to make a connection. [21] It is for that reason that I have a conceptual difficulty with the provisions of section 188A (11) of the LRA. The section created room for employees to allege that “holding of an inquiry” potentially contravenes the PDA. As indicated above, I take the view that the holding of an inquiry per se cannot contravene the PDA. I take that view for two reasons. Firstly, in terms of section 188A (1), the inquiry contemplated in section 188A is one into allegations about the conduct or capacity of an employee. It must then follow that the inquiry mentioned in subsection 188A (11) is one into allegations of misconduct and or capacity. That being the case, I struggle to understand how a holding of an inquiry into allegations of conduct and capacity could potentially contravene the PDA [24] Ultimately, it boils down to this. An inquiry into the same allegations of conduct or capacity if conducted by an arbitrator, even if it arose after making a protected disclosure, does not contravene the PDA, whereas, the same inquiry if conducted by an employer has the potential of being labelled by an employee in good faith to be a breach of the PDA. As indicated above, this permutation would make sense if the PDA in particular prohibits the holding of an inquiry by an employer in instances where an employee has made a protected disclosure. As matters stand, I do not read holding of an inquiry to be an occupational detriment as defined. "Employee" JR 237/21 Sethibelo v General Public Service Sector Bargaining Council and Others (JR 237/21) [2025] ZALCJHB 250 (26 June 2025) "Email: ""The information we got suffices but someone from your office phoned the Chairperson of the Portfolio Committee – you need to investigate who leaks information from NAC. """ Ms Mangope, was that she (Mangope), was not an employee of DAC and merely reported to the Board of the NAC. [21] She disputed that Makgoka was an employee of the DAC. Her contention was that the NAC was an independent entity established under a different statute. She conceded that the Board of the NAC was appointed by Minister, and that the DAC exercised oversight over the activities of the NAC as its delivery arm, including its financial matters. [28]...The Arbitrator had regard to the provisions of sections 1 and 3[3] of the PDA and the applicant’s contentions that she did not know the identity of the whistleblower at the time, and or that the latter was in any event not an employee of the DAC for the purposes of application of the provisions the whistleblowing policy. The Arbitrator concluded that the evidence of the CEO of NAC, Mangope, lacked credibility since the whistleblower, Makgoka, was subjected to a disciplinary process flowing from her identity being revealed. "[29] The Arbitrator also considered the provisions of section 210 of the Labour Relations Act (LRA)[4], in regard to the definition of an employee and the presumptions under section 200A of the LRA in establishing whether Makgoka was an employee of the DAC for the purposes of application of its policies on whistleblowers. [30] Against the above provisions, the Arbitrator concluded that in the light of the nature of the relationship between the DAC and the NAC pertaining to the former’s oversight over the latter; the instructions issued to it; the interdependence; appointment of Boards and payment of salaries etc, the DAC was the ‘broader employer’ of Makgoka for the purposes of the PDA, and therefore she was its employee." "[35] The starting point are the provisions of the PDA, which the applicant sought to downplay. In its preamble, the purpose of the PDA is to make provision for procedures in terms of which employees in both the private and the public sectors may disclose unlawful or irregular conduct by their employers or by other employees, and to provide for the protection of employees who make such disclosures. [36] Certain obligations under section 3B of the PDA are imposed on the person or body to whom a protected disclosure was made, including taking a decision as to whether the matter would be investigated; or whether the disclosure will be referred to another person or body if that disclosure could be investigated or dealt with more appropriately by that other person or body." [39]...Equally so, it is irrelevant whether the CEO saw nothing wrong with the email or had not acted on the instruction. In any event, the applicant by virtue of her position and oversight of the NAC had issued the instruction. Of equal irrelevance is the applicant’s contention that at the time that the email was sent to the CEO of NAC the identity of the whistleblower was not known until the release of the Grant Thornton report on 8 February 2017. Clearly her email of 2 February 2017 indicated her intentions notwithstanding the release of the Grant Thornton report six days later. The fact however remains that the applicant sought to have the identity of the whistleblower revealed, rather than have the nature of the allegations investigated. [40]...It followed that under the provisions of section 4 of the PDA, and to the extent that Makgatho was identified and may have been subjected to any occupational detriment as defined under section 1 of the PDA, this had indeed exposed the DAC and the NAC to liability under Section 4 of the PDA. [43] An ‘employer’ on the other hand in the PDA, is defined as any person who employs or provides work for any other person and who remunerates or expressly or tacitly undertakes to remunerate that other person; or who permits any other person in any manner to assist in the carrying on or conducting of his, her or its business. [44] For the purposes of determining this dispute in so far as the status of Makgatho was concerned, of relevance in my view is the definition of ‘organ of state’ in the PDA, which means any inter alia, department of state or administration in the national sphere of government, or any other functionary or institution when exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or exercising a public power or performing a public function in terms of any legislation. The provisions of section 8(1) of the Public Service Act[8](“the PSA”) further in my view puts the status of Makgatho and others within the NAC to rest, as they clearly provide that “The public service shall consist of persons who are employed in posts on the establishment of departments, and additional to the establishment of departments” A “department” on the other hand is defined in section 1 of the PSA to mean “a national department, a national government component…”. 46] Against these definitions, there cannot be any substance to the contention that employees of agencies of a department are not its employees. These employees are as part of a departmental agency, employed additional to the establishment of a department, and are clearly part of a national government component. Departmental agencies are not independent entities in the strict sense of the word irrespective of the statute under which they were established, in the light of their intrinsic connection to the departments under which they were established. "Appearances: For the Applicant: P Kirstein, instructed by Marius Scheepers & Co Attorneys" 16.1.1 Protected disclosure act disclosed confidential documents to his attorney 2025-096639 Bangeni v Local Government SETA (Reasons) (2025-096639) [2025] ZALCJHB 379 (28 August 2025) 23.3 An employee is permitted to make a protected disclosure to his or her legal practitioner for the purpose of obtaining advice.[] "AI summary: Radebe & another v Premier, Free State Province & others (2012) 33 ILJ 2353 (LAC) – Clarifies that an employee making a disclosure is not required to prove the information is correct. Communication Workers Union v Mobile Telephone Networks (Pty) Ltd (2003) 24 ILJ 1670 (LC) – Discusses the nexus between disclosure and occupational detriment. Baxter v Minister of Justice & Correctional Services & others (2020) 41 ILJ 2553 (LAC) – Explains the requirement of good faith in disclosures. Nxele v National Commissioner: Department of Correctional Services & others (2018) 39 ILJ 1799 (LC) – Clarifies the application of section 188A(11) of the LRA. Potgieter v Tubatse Ferrochrome & others (2014) 35 ILJ 2419 (LAC) – Discusses whistleblower protections under the PDA. Zungu v Premier of the Province of KwaZulu-Natal & others (2018) 39 ILJ 523 (CC) – Addresses costs in labour court matters. Department of Correctional Services v General Public Service Sectoral Bargaining Council & others (2025) 46 ILJ 310 (LAC) – Discusses abuse of process and costs." New rules section 188A(11) enquiry 2025/167534 Municipal Employees and Civil Servants Union obo Mlungwana v Ekurhuleni Metropolitan Municipality and Another (2025/167534) [2025] ZALCJHB 440 (30 September 2025) "[11] In Tsibane v Estate Agency Affairs Board and Others[[2021] ZALCJHB 150 (24 June 2021).], the Court held as follows at paragraph 64: ‘[64] Section 188A(11) entitles an employee, who is about to be subjected to an internal disciplinary process and who alleges in good faith that the intended disciplinary hearing contravenes the PDA, to instead request an inquiry be conducted in terms of section 188A. I see no reason why, if an employer, under circumstances where the employee complies with the requirements of section 188A(11), refuses to have the inquiry into the conduct or capacity of the employee conducted in terms of section 188A, the employee would not be entitled to approach this Court for an order interdicting the impending internal disciplinary hearing and an order directing that the inquiry pertaining to the employee’s conduct or capacity be conducted in terms of section 188A of the LRA.’" "2. The first and second respondents are interdicted from proceeding with the internal disciplinary inquiry presided over by the second respondent pending finalisation of Section 188A(11) of the LRA application for an inquiry by an arbitrator under the auspices of the South African Government Bargaining Council. " section 188A(11) enquiry 2025/169524 Matlala v Foskor Proprietary Limited and Others (2025/169524) [2025] ZALCJHB 478 (22 October 2025) protected disclosure – Suspended and charged with misconduct – Disclosures made about vice president’s conduct and broader internal issues – Belief that disciplinary action constituted an occupational detriment was not frivolous or insincere – Merits of claim not assessed – Existence of a bona fide belief was sufficient to justify interim relief – Warranted to preserve integrity of referral process – Disciplinary inquiry suspended pending a decision by arbitrator – Labour Relations Act 66 of 1995, s 188A(11). "[38] In determining the prerequisites for an arbitrator to chair the enquiry, the court stated: “(43) A casual and sloppy reading of the subsection suggests that an employee may make a simple allegation of contravention of the PDA in order to invoke the subsection. Not, the allegation must be one made in good faith. This requirement illuminates the fact that the legislature was alive to the fact that an employee may make a wild allegation and thereby gain the right to an inquiry by an arbitrator. This is an instance where an abuse of the subsection creeps in easily. The legislature must have carefully chosen the phrase good faith because in section 9 of the PDA any disclosure made in good faith is protected. It becomes so protected if an employee reasonably believes that the information disclosed and an allegation contained in it are substantially true and the disclosure is not made for the purposes of personal gain. The phrase good faith, when used as a noun, means honesty or sincerity of intention. (44) It must follow that the allegation of contravention must have an element of honesty and sincerity. The veritable question is how does a Court faced with an application of this nature test honesty and sincerity of the allegation of contravention? To my mind a contravention must not only be alleged it must prima facie factually exist. I say so because in terms of section 1 of the PDA an occupational detriment in relation to the working environment of an employee means amongst others being subjected to any disciplinary action.”" [43] I agree with the court in Mamodupi that the starting point for identifying the requisites for holding an enquiry under s 188A(11), must be the wording of the section, which states that an employee is entitled to require an enquiry into their conduct or capacity to be conducted under s 188A if the employee “alleges in good faith that the holding of an inquiry contravenes the Protected Disclosures Act, 2000” (emphasis added). "[44] If the request for a statutory hearing is successful, it merely means that the internal incapacity or misconduct inquiry is substituted with an arbitration presided over by a completely independent chairperson. In Tsibani v Estate Agency Affairs Board and Others[6], this court emphasised the limited scope of the s 188A(11) procedure: “(72) Section 188A(11) is not designed or intended to determine whether the facts constitute a protected disclosure as contemplated by the PDA or not, and if not, for an internal disciplinary hearing to proceed. The section provides for an inquiry into allegations pertaining to the conduct or capacity of an employee.” (emphasis added) " [46] Because the section 188A(11) enquiry is simply a misconduct or incapacity hearing, whether the employee had actually suffered an occupational detriment is not within the remit of the arbitrator in that forum. Nevertheless, the arbitrator is not obliged to proceed with the inquiry regardless of the circumstances under which the disciplinary action arose. The threshold requirement that must still be met is that the employee’s allegation that the disciplinary steps taken by the employer amounts to an occupational detriment under the PDA must be one made in good faith. [47] In assessing the existence of good faith, it must be recognised that it possible that the allegation of being subjected to an occupational detriment might be made in the sincere belief it is correct, when objectively speaking it is wrong. An employee’s belief they have been subjected to an occupational detriment, might be mistaken on several grounds, both concerning the legal interpretation of the PDA and the factual basis for their belief. Plainly, if an employee relies on a factual assertion which they know to be false the allegation cannot be bona fide because it relies on an intentional misrepresentation. In instances where the allegation is not plainly false, there must at least be a tenable or plausible basis for them holding that belief. Accordingly, if there are undisputed facts that are irreconcilable with their belief, which the employee could not be unaware of, their belief cannot be accepted as bona fide one. Equally, if the belief is one that nobody in the position of that person could reasonably hold in the circumstances, it could not be held in good faith[7]. [51] Should the court then grant interim relief by suspending the internal inquiry pending the decision of the CCMA commissioner whether to proceed with the s 188A(11) enquiry? If the court does not stay the internal enquiry, Matlala could be denied the opportunity of exercising his right to request the statutory enquiry because, unless the request for the statutory enquiry is accepted, the employer can proceed with the internal one in the meantime. "2. The disciplinary enquiry into the charges of misconduct against the Applicant, set out in the First Respondent’s notice of 7 and 22 August 2025, is suspended pending a decision by the arbitrator appointed by the Third Respondent, whether the disciplinary enquiry should be conducted in accordance with Section 188A(11) of the Labour Relations Act, 66 of 1995. " pre-dismissal arbitration under section 188A(11) 2025/189683 Fisher v Ngcuka N.O. and Others (2025/189683) [2025] ZALCJHB 514 (28 October 2025) "[39] Therefore, pre-dismissal arbitration under section 188A(11) is a process that completely substitutes the internal disciplinary hearing in all respects. The two processes cannot exist side by side. Once the pre-dismissal arbitration proceedings are convened, then internal disciplinary proceedings must terminate. This was made pertinently clear in a number of judgments. First, in Foskor supra it was held:[43] ‘… If the request for a statutory hearing is successful, it merely means that the internal incapacity or misconduct inquiry is substituted with an arbitration presided over by a completely independent chairperson …’. Next, and in the Labour Court judgment in Nxele supra, it was stated:[44] ‘… The internal disciplinary enquiry that would have commenced and is pending must terminate …’. The same sentiment was in expressed in SA Broadcasting Corporation SOC Ltd v Phasha[45] as follows: ‘… The essence of s 188A is to provide for a pre-dismissal arbitration which substitutes arbitration before an independent arbitrator for a disciplinary enquiry …’. As lastly, as succinctly said in Tsibani v Estate Agency Affairs Board and Others:[[2021] JOL 51625 (LC) at para 67.] ‘Section 188A(11) does not envisage the holding of two parallel hearings. Section 188A provides for an inquiry into allegations relating to an employee's conduct or capacity and for such an inquiry to be conducted by an arbitrator, in accordance with the provisions of the said section. If the inquiry relates to allegations relating to an employee's conduct, the section 188A inquiry will happen instead of an internal disciplinary hearing.’" Section 188A(11) of LRA 2025/212698 Modika v Industrial Development Corporation of South Africa and Another (2025/212698) [2025] ZALCJHB 529 (13 November 2025) applicant only required to make out a case that disclosure was made and such disclosure would qualify as protected disclosure under Protected Disclosures Act (PDA) – not required for Court to decide whether applicant would be entitled to protection or whether disclosure bona fide or justified – purpose of s 188A(11) is not that decision be made on a protected disclosure – arbitrator decides whether to accept pre-dismissal arbitration in terms of s 188A(11) – not appropriate for Labour Court to decide such issue purpose of section to move disciplinary proceedings to CCMA by way of pre-dismissal arbitration under s 188A – impartial arbitration on misconduct charges removes risk of influence in decision of misconduct as a result of protected disclosure – misconduct will thus finally be impartially decided based only on what employer can prove in respect of misconduct – statutory prescribed alternative to internal disciplinary hearing in cases of alleged protected disclosure [8] What was undisputed is that the applicant lodged a complaint against Mdaka on 29 July 2025, using the anonymous whistle blowing report line in the IDC for this purpose. In this complaint, the applicant raised concerns about systemic bullying, harassment, unfair discrimination practices, and harassing employees perpetrated by Mdaka. "28] I believe that a refusal to consider the applicant’s application will lead to a grave injustice. It can nothing else but unfair to expect the applicant to participate in internal disciplinary proceedings which, if his case is successful, would effectively cause such internal disciplinary proceedings to be null and void. This is even more prejudicial, considering that he CCMA has convened arbitration proceedings for 17 November 2025 to determine whether to accept the referral or not. As held in Fisher v Ngcuka N.O. and Others[15]: ‘In my view, not to consider the application could cause a grave injustice. I believe it would be patently unfair to expect the applicant to participate in what would clearly be a comprehensive disciplinary hearing, in circumstances where the applicant has alleged an occupational detriment as a result of having made a protected disclosure, which according to her strikes at the very heart of the disciplinary proceedings against her. The issue of the possible occupational detriment following a protected disclosure is in itself an issue that carries with it an inherent quality of urgent intervention, especially where an alternative process to deal with it is available and has been invoked, but despite this, Bidvest Services is pressing on with internal discipline.’" "30] The applicant cannot obtain substantive redress in the ordinary course. This is because of the sui generis nature of section 188A proceedings, brought under section 188A(11). As will be discussed below in this judgment, it is intended to act as a complete substitute for internal disciplinary proceedings when allegations of an occupational detriment due to a protected disclosure is at stake. If internal disciplinary proceedings are allowed to proceed, even if a dismissal of course can be later challenged under the LRA, this up front protection, so to speak, will be lost. This equally justifies urgent intervention. As held in Matlala v Foskor Proprietary Limited and Others[19]: ‘Further, there is no equivalent ‘alternative’ to invoking s 188A(11), which Matlala has a right to exercise. While there is a possibility of the provision being abused to delay or avoid an internal hearing, it must be remembered that procedure initiated by the employer does not disappear if an employee successfully invokes the provision. It simply relocates the subject matter of the internal enquiry to arbitral proceedings …’" "[41] I have little hesitation in concluding that, having proper regard to the contents of the applicant’s disclosure, that it would qualify as a protected disclosure under section 1 of the PDA. In particular, there is are allegations that the head of department of the TCOE unit (Mdaka), being the very person that instituted the disciplinary proceedings against the applicant, is failing to comply with the legal obligations on her, the health of individuals is being compromised by her, and that there exists discrimination perpetrated by her, all of which form part of the definition in section 1 of the PDA.[33] As pertinently held in Baxter v Minister of Justice and Correctional Services and Others[34]: ‘… it is important to note that the PDA does not require that the disclosures made are factually correct. The phrase ‘tends to show’ in s 1 of the PDA intends that it is sufficient if the information in the disclosure is indicative of an impropriety. Likewise, the requirement that the employee merely have a reason to believe that the information points to an irregularity does not require personal knowledge of the information disclosed. That would set too high a standard frustrating the operation of the PDA. Hearsay information, depending on its nature and cogency, may provide a basis for a reasonable belief of possible irregularity. …’" "[42] The Court in Baxter supra in fact accepted that disclosures concerning employees who served on interview panels having failed to comply with various legal obligations to which they were subject, would qualify under section 1 of the PDA. The Court decided:[35] ‘It is clear therefore that the disclosures made by the appellant relating to the irregularities in the various recruitment processes constituted disclosures in terms of the PDA. They disclosed information regarding the conduct of some members of the interview panels and Nxele which the appellant had reason to believe showed or tended to show that the members of the interview panels and/or Nxele had failed to comply with legal obligations to which they were subject in terms of the Public Service Regulations. The Labour Court erred in holding otherwise.’ The applicant, in his disclosure of 29 July 2025, basically says the same kind of thing. No doubt it qualifies, by definition, as a protected disclosure under section 1 of the PDA." "[45] In Tshabalala v Moqhaka Local Municipality and Another[36] the Court dealt with the Local Government: Disciplinary Regulations for Senior Managers, 2010, which contained provisions prescribing when disciplinary proceedings are commenced and when a disciplinary hearing is instituted, and the Court had the following to say: ‘What this construction contemplates is a disciplinary process that is commenced by the service of charges on the employee and which culminates in the conclusion of a disciplinary hearing. A disciplinary hearing is an integral part of the disciplinary process or proceedings; it does not constitute the proceedings in themselves.’" Public Holidays Act 1994 Provides for a minimum number of public holidays days ; Where a public holiday falls on a Sunday, both the Sunday and the Monday constitute public holidays JA29/06 Randfontein Estates Ltd v NUM Offer for re-employment JS40/14 Truter v Heat Tech Geysers (Pty) Ltd (JS40/14) [2016] ZALCJHB 83 (2 March 2016) Kemp t/a Central Med v Rawlins (2009) 30 ILJ 2677 (LAC) factors such as the lapse of time between the dismissal and the offer of reinstatement; whether the offer was unconditional or subject to conditions; whether it gave the employee certain assurances that he or she would not be victimised and whether the offer was bona fide, are considerations which would impact on the compensation ultimately awarded. Trade Union Locus standi union had failed to cite the individual employees as co-applicants union was entitled to refer the dispute in terms of s200(1) of the LRA and that the referral was valid JA13/01 NUM v Hernic Exploration (Pty) Ltd Registration denied union was not formed and managed by employees to regulate their relations with employers, nor did it function as a trade union in accordance with its constitution;. term genuine; that the Registrar does not enjoy a majoritarian gatekeeper role at the registration stage and that his refusal to register the union was a misinterpretation of his authority; registration of the union was ordered. although registration was not a sine qua non for the separate juristic personality of a union registered unions enjoy various organisational rights which were critical to a unions viability and efficacy C491/04 Workers Union of SA v Crouse, J N.O. & The Department of Labour taking possession of movable property JS964/2015 Vermaak and Another v Sea Spirit Trading 162 CC t/a Paledi Super Spar and Others (JS964/2015) [2017] ZALCJHB 34; (2017) 38 ILJ 1411 (LC) (31 January 2017) The question is: does the perfection of a notarial bond and consequent taking of possession of movable property to realise an indebtedness constitute a transfer of a business as a going concern as contemplated in section 197 of the LRA. [70] In my view Spar did more that to act as a creditor seeking to secure and realise indebtedness to it. If Spar simply sought to secure and realise a debt, it could have taken control over the movable property of Paledi Super Spar and Paledi Tops and could have sold or dispose of the moveable property to realise the debt. Instead, Spar took not only control over the movable property, but also of the stores and operated the stores from 1 July 2015 until April 2016, when Spar sold the businesses as going concerns. [74]Section 197 will be triggered if a business was transferred as a going concern. That means that a business in operation is transferred to remain the same but in different hands. The sale of a business is not required by section 197, nor is it required that the transfer be a long term or permanent one. In my view the intention of the parties or the reason why a business is transferred, is immaterial and irrelevant and play no role in the objective enquiry whether a transfer as contemplated in section 197 of the Act has taken place. Van der Velde v Business and Design Software (Pty) Ltd (2006) 27 ILJ 1738 (LC) at 1148-1149 In summary, and in an attempt to crystallize these views and to formulate a test that properly balances employer H and worker interests, the legal position when an applicant claims that a dismissal is automatically unfair because the reason for dismissal was a transfer in terms of s 197 or a reason related to it, is this: internal dispute J1524/17 South African Chemical Workers' Union ('SACWU') and Another v Modise (J1524/17) [2017] ZALCJHB 265 (7 July 2017) to interdict the unions general secretary from convening a purported meeting of the union labour court jurisdiction under s 158(1)(e)(i) confined to disputes about the interpretation and application of the constitution between union members and a union does not extend to a dispute between the union and an office bearer who is not a member Unregistered Trade Union J256/19 Vodacom (Pty) Ltd and Others v National Association of South African Workers ('NASA') and Another (J256/19) [2019] ZALCJHB 49; (2019) 40 ILJ 1882 (LC) (4 March 2019) Interdict unregistered union entering premises to communicate and meet with employees of contractor nature of rights infringed jurisdiction of court to entertain interdict concerning interference with property rights -requirements of final interdict met Interdict unregistered union entering premises to communicate and meet with employees of contractor nature of rights infringed jurisdiction of court to entertain interdict concerning interference with property rights -requirements of final interdict met [32] Therefore, as matters stand, the respondents cannot bypass the LRA mechanisms for achieving rights of access and convening meetings of members at the workplace of the employer by trying to directly enforce their constitutional rights to freedom of association and fair labour practices. Consequently, have no right to insist on access to the premises to communicate with Bidvest Services employees or to hold meetings with them on the premises Membership outside union's constitution [9] In Lufil[NUMSA v Lufil Packaging (Isithebe) and Others[2020 (6) BCLR 725 (CC); [2020] 7 BLLR 645 (CC) (26 March 2020)]] the Constitutional Court upheld the Labour Appeal Court (LAC) decision that a trade union cannot create a class of membership outside the provisions of its own constitution. The Constitutional Court held that:[47] The contractual purpose of a union’s constitution and its impact on the right to freedom of association of its current members is founded in its constitution. A voluntary association, such as NUMSA, is bound by its own constitution. It has no powers beyond the four corners of that document. Having elected to define the eligibility for membership in its scope, it manifestly limited its eligibility for membership. When it comes to organisational rights, NUMSA is bound to the categories of membership set out in its scope. (Incomplete)

Labour Law cases decided in the South African Courts (Highlights and updated 6 1997 to 12 2025 [16.13.1])   Dismissals (Retrenchment and Severance pay): 1. Retrenchment Consultation Consultation must take place once the possible need is identified and before a final decision is made. Atlantis diesel Engines Theft still showed a preference for using contracting companies. the deferential approach was no longer part of our law and dismissal for operational requirements had to be a measure of last resort, or at least fair under all the circumstances. A dismissal could only be operationally justifiable on rational grounds if the dismissal was suitably linked to the achievement of the end goal for rational reasons. Dismissals had to be a last resort and if they were not, that rendered them unfair. (CA22/2012) [2014] ZALAC 78 National Union of Mineworkers and Another v Black Mountain Mining (Pty) Ltd Non-compliance with section not necessarily resulting in invalidity or nullity of dismissals s 198A(8) Because the notices of termination did not comply with the statutory requirements it axiomatically followed that the dismissals were invalid and of no force and effect, was wrong. Non-compliance with s 198A(8) not necessarily resulting in invalidity or nullity of dismissals. Overrules two previous judgments of the Labour Appeal Court, namely in De Beers Group Services (Pty) Ltd v NUM (2011) 32 ILJ and 1293 Revan Civil Engineering Services (Pty) Ltd v NUM (2012) 33 ILJ 1846. (JS648/13, JS51/14, JS350/14) [2015] ZALAC 2 Edcon v Steenkamp and Others Termination of the employment contract at the behest of a third party Employees were not consulted as contemplated by s 189 of the LRA. The respondent contended that it did not dismiss the employees at the end of December 2009 but their services automatically terminated in terms of specific provisions of their contracts of employment. The court held that a contractual provision that provided for the automatic termination of the employment contract at the behest of a third party or external circumstances beyond the rights conferred to the employee in our labour laws, undermined an employee's rights to fair labour practices and was disallowed by labour market policies. (JS 879 / 10) [2015] ZALCJHB 129 SATAWU obo Dube v Fidelity Supercare Cleaning Services Group (Pty) Ltd Severance pay Forfeited DA17/99 Lorentzen v Sanachem Compensation Length of service, prospects finding alternative position and financial position of employer are not relevant factors. J1252/98 Scribantev Avgold Disclosure of confident information JA76/99 Langa v Active Packaging Consultation Joint-problem solving process; Atlantis Diesel Engines v NUMSA (1994) 15 ILJ 1247 (A) JA13/00 Alpha Plant and Servicing v Simmonds Compensation S194 remove any need for evidence No compensation awarded JA13/00 Alpha Plant and Servicing v Simmonds Consultation All affected employees should directly or indirectly be given opportunity to influence the employer's decision making process (Johnson & Johnson v CWIU) J2264/98 SACCAWU v Amalgamated Retailers Consultation desire to steamroll the retrenchment process' and irreconcilable with the obligation to engage in a process of meaningful consultation in the form that is required (Kotze v Rebel discount Liquor Group (2000) 21 ILJ 129 (LAC)) J2192/00 Strauss v Plessey Substantive fairness posts being renamed; competency of employees; CA10/00 South African Mutual Life Assurance Society v IBSA Substantive fairness Court not to second guess employer but to decide whether the ultimate decision is "operationally and commercially justifiable on rational grounds"; (Carephone v Marcus) CA4/00 BMD Knitting Mills v SACTWU Bumping bumping is situated within the LIFO principle. Longer serving employees have devoted a considerable part of their working lives to the company; is sufficient reason for them to remain and others to be retrenched bumping should always take place horizontally before vertical bumping is resorted to; domino bumping; minimising the disruption to the employer; geographical limits to bumping ; independence of departments as separate business entities may be relevant CA3/01 Porter Motor Group v Karachi Bumping In a factory where employees perform more or less the same duties LIFO can be applied [between departments]. However, where there are different departments were (sic) persons perform different skills it is not always possible C04/00 FAWU & Others v Yaldor Sweets Manufacturers SA (Pty) Ltd Severance pay It creates a statutory minimum that has to be paid when an employee is dismissed for reasons based on the employers (sic) operational requirements. The only logical interpretation that can be given to the words at least in section 41(2) of the [BCEA] is that it should mean not less than CA2/01 South African Typographical Union (obo Van As & 6 Others) v Kohler Flexible Packaging (Cape), a Division of Kohler Packaging Ltd Employer making all employees redundant and then handpicking employees for new positions; was open to the charge of arbitrariness J869/00 Wolfaardt & Another v The Industrial Development Corporation of South Africa Ltd Consultation On the proposition that s189 prevents an employer from consulting with individual employees at any stage where there is a representative union, noted that bypassing a union undermines collective bargaining but held that if deadlock is reached with the union, and if the employer has in fact discharged all its consultation obligations with the union, I can see no reason why the employer should not be permitted to consult thereafter with the affected individuals JS99/01 SACCAWU & Others v Sun International South Africa (Ltd) (A division of Kersaf Investments Ltd) Information Section 189(3) notice: that information in terms of this section must be given to the employee before the decision to dismiss is made in order for the employee to be able to participate meaningfully in the consultation process the complete failure of the [employer] to provide any of the written information required by the LRA, the only conclusion that can be drawn is that the [employer] failed to follow a fair procedure C163/00 Hendricks v SAA Selection criteria not conducted any interview and had placed far greater reliance on the test than was warranted had not shown that the selection criteria were fair and that for this reason the dismissal was substantively unfair C163/00 Hendricks v SAA not for operational requirements but for an ulterior motive employee had been placed on suspension for a long period J6155/00 Mahlati v SABC Alternative employment s41(4) of the BCEA alternative employment may incorporate employment by the same employer in the same position but on terms and conditions of employment that differ either in some or in all respects with the terms and conditions of employment that applied to the employee before or at the time the offer was made. [22] It is the employment that is required to be alternative and not the position; where an employee accepts such new position he either enters into a new contract of employment or amends his existing contract; the employees rejection of that offer was unreasonable JA12/01 Freshmark (Pty) Ltd v CCMA & Others Substantive fairness LC will not ordinarily interfere with decisions taken by employers where that decision was clearly and objectively in the best commercial interests of the business concerned the first employee ought to have been placed in one of the new positions without an interview and that his dismissal was therefore substantively unfair JS902/01 Mabaso & Others v Universal Product Network (Pty) Ltd Procedural fairness the employer had not only come to a general decision on the need to retrench prior to consulting with the employees, but even identified the specific employees to be dismissed JS902/01 Mabaso & Others v Universal Product Network (Pty) Ltd Procedural fairness retrench prior to consulting Kotze v Rebel Discount Liquor Group (Pty) Ltd (2000) 21 ILJ 129 (LAC), JS902/01 Mabaso & Others v Universal Product Network (Pty) Ltd Voluntary that in signing the agreement and accepting payment the employee had settled any dispute between himself and the employer JS554/02 Makiwane v International Healthcare Distributors Substantive fairness the respondents accepted that there were justifiable economic reasons for closing the plant; there were objective reasons for the restructuring; which included job losses CA 13/02 Enterprise Foods (Pty) Ltd v Allen & 10 Others Procedural unfairness submitted that the decision taken by the board in June 1999 was not final, but merely a provisional one; was no evidence that the decision of the board was not a final one and that therefore Enterprise Foods fell far short of the standard demanded by s.189 which requires bona fide consultation to precede a final decision to dismiss CA 13/02 Enterprise Foods (Pty) Ltd v Allen & 10 Others Substantive fairness that such dismissals be shown to have been a measure of last resort which could not be avoided CWIU & Others v Algorax (Pty) Ltd (2003) 11 BLLR 1081(LAC) C1008/01 Food & Allied Workers Union; Abrahams, Clint & 113 Others v South African Breweries Limited Procedural fairness entry-level specification ; that the choice of an invalid assessment tool was unfair C1008/01 Food & Allied Workers Union; Abrahams, Clint & 113 Others v South African Breweries Limited Substantive fairness Frys Metals a distinction was drawn between a dismissal effected in order to compel employees to accept a demand in respect of a matter of mutual interest and a dismissal for operational requirements. Held that this dismissal did not fall under the definition of an automatically unfair dismissal contemplated by s. 187(1)(c) Frys Metals (Pty) Ltd v NUMSA & Others (2003) 24 ILJ 133(LAC) JA 52/02 Mazista Tiles (Pty) Ltd v National Union of Mineworkers; Mothloki & 143 Others that the decision to dismiss must be operationally justifiable on rational grounds BMD Knitting Mills (Pty) Ltd v SA Clothing & Textile Workers Union (2001) 22 ILJ 2264 (LAC) C170/00 SA Transport & Allied Workers Union v Old Mutual Life Assurance Company SA Ltd Compensation award the car allowance, medical and pension benefits for one month for breach of contract under s 77(3) of the BCEA as read with s 195 of the LRA; the value of his share options and accrued profits as at 28 February 2003 ; one month’s pay as notice pay; the balance of his salary for June, July and November 2002 ; his salary for December 2002 and January 2003; two weeks’ severance pay ; the balance of his relocation allowances and his accrued leave pay ; twelve months compensation for unfair retrenchment C190/04 Parry, Roger v Astral Operations Ltd Selection criteria LIFO and skills this method is open to abuse. General Food Industries Ltd v Food and Allied Workers Union ((2004) ILJ 1655 employers misrepresentations and subsequent failure to disclose fully and timeously the selection criteria and how they were to be applied was in bad faith and unfair. Held further that they had failed to discharge their onus to prove the selection criteria were fair and fairly applied and that the dismissals were substantively fair. D113/00 CEPPWAWU (o.b.o. Gumede) v Republican Press (Pty) Ltd Outsourcing the obligation to consult only arose when the employer contemplated dismissing employees for operational requirements, prior to which there was no such duty. Held that although the employer was inclined towards outsourcing this was not in conflict with s 189 of the Act. JA39/03 National Education, Health and Allied Workers Union and Others v University of Pretoria Substantive fairness that the absence of a proper retrenchment process impacted on the substantive fairness of the dismissal because it excluded a discussion of the selection process. D202/02 Robinson, N A; Thorn, P L & Carrim, F v Price Waterhouse Coopers Procedural fairness After the meeting the three staff members concerned were summoned to individual meetings and given letters setting out the reasons for restructuring and terminating their employment as of 28 September 2001; the letters of dismissal were drafted prior to the meetings. D202/02 Robinson, N A; Thorn, P L & Carrim, F v Price Waterhouse Coopers Substantive fairness Selection criteria employer was obliged i.t.o. s189(7)(b) to use fair and objective criteria as contemplated in the Act. The company had conceded that the criteria of willingness and the interview were subjective and this portion comprised 20% of the criteria. They argued that 20% was insignificant and ought to be ignored. Held that this was not so and the selection criteria were therefore not fair and the dismissals were substantively unfair JA31/03 Chemical Workers Industrial Union; Sangiveni & Others v Latex Surgical Products (Pty) Ltd Different packages to employees different treatment of employees on retrenchment, without good cause, would result in an unfair dismissal i.t.o. Chapter VIII of the LRA JS 239/04 Mathews, T v GlaxoSmithKline SA (Pty) Ltd Substantive fairness Court a quo favoured a strict test as set out in BMD Knitting Mills (Pty) Ltd v SACTWU ((2001) 7 BLLR 795 (LAC)) and Nehawu & Others v The Agricultural Research Council & Others ((2000) 9 BLLR 1031 (LC); The Court held that the employer had failed to discharge its onus to establish the existence of a commercial rationale behind the retrenchments for operational requirements. On appeal the Court noted that the employees were not retrenched because either Fauna or Forecourt were running at a loss but because Forecourt had decided to run the business in a different way. Further that an employer has the right to choose the manner in which he runs his business provided he respects the workers contracts of employment and obtains their consent or consults with their representatives in altering such contracts or contemplation of retrenchments for operational requirements. However it was also noted that it was unfair of an employer to choose a solution that entailed job losses if there was another solution which was viable. JA 52/03 Forecourt Express (Pty) Ltd v SATAWU; Monyelo, A & Others Affirmative action Held that this argument was incompatible with the judgment in Dudley v City of Cape Town ((2004) 25 ILJ 305 (LC)) and PSA obo Karriem v SAPS & Another (unreported C435/04) that there was no obligation on an employer, when contemplating retrenchments, to give preference to suitably qualified employees from a designated group. Held further that if the individual employee had no enforceable right under the EEA then no failure by the employer to consider its obligations under the Act could render a dismissal unfair JS 415/05 Thekiso, J v IBM South Africa (Pty) Ltd section 189A Procedurally unfair The court noted that in terms of sec 189A(13) read with (7)(b)(ii) and (8)(b)(ii)(bb), procedural fairness can only be challenged by way of motion proceedings. Quite plainly, the drafters of sec 189A had mass retrenchments in mind when introducing it into the Act. [They] could not have intended to non-suit individual employees from raising procedural fairness in trial proceedings, even if he or she had referred the aspect in terms of sec 189A of the Act. It would often be impractical to do so. There is no reason why the two aspects could not be heard simultaneously, particularly since the individual may not invoke strike action. See also Numsa & Others v SA Five Engineering [2005] 1 BLLR 53 (LC). JS326/05 Watts v Fidelity Corporate Services (Pty) Ltd Consultation The court confirmed that the consultation process entails a dual participatory role JS149/05 Greyvenstein v Flaiming Silver Trading 62 (Pty) Ltd t/a Sunglass World Severance pay the court found that the applicants decision to reject the offer of alternative employment had been taken precipitously and was unreasonable in all the circumstances. She was therefore not entitled to any severance pay. JS149/05 Greyvenstein v Flaiming Silver Trading 62 (Pty) Ltd t/a Sunglass World Consultation With reference to the decision of the LAC in Nehawu v University of Pretoria (2006) 5 BLLR 437, the court held that an employer may come to the consultation table with a predisposition towards a particular method of solving the problem which has given rise to the possibility of retrenchment. JS148/02 Satawu obo Chauke & Others v Roadway Logistics (Pty) Ltd 189A(13) 189A(7)(b)(ii) D73/09 National Union of Metal Workers of South Africa (NUMSA) obo members, second and further applicants v Bell Equipment Company SA (Pty) Ltd 189A(13) Duties of Facilitator May not make rulings JR201/11 National Union of Mineworkers v BHP Billiton Energy Coal SA Ltd and Others Procedural fairness Disclose all info, to engage meaningfully 191(12) one employee and only substantive fairness refer to arbitration JR1965/05 Rand Water v Bracks N.O. & Others Substantive fairness such as the alleged failure by the employer to apply fair selection criteria; its alleged failure to consider properly alternatives to retrenchment and the fairness of the severance package that they had been offered. Procedural fairness They are intertwined J1114/07 Banks & Another v Coca-Cola of SA CCMA lacks jurisdiction to decide on a dismissal for operational requirements if the process affected more than one person 191(12) JR106/07 Telesure Investment Holdings (Pty) Ltd v CCMA & Others who consult Where an employer consults in terms of a collective agreement with a majority union which requires it to consult with that union in the event of retrenchment, the employer has no obligation in law to consult with any other union nor with any individual employee JS693/00 Maluleke & Others v Johnson Tiles (Pty) Ltd Strike dismissal factual causation enquiry question whether the dismissal would have taken place but for the strike action C450/05 NCAWU obo Sethlogelo & Others v CCMA & Others Strike dismissal Legal causation would be established through an objective test of determining whether the strike was the main, dominant, prominent, or proximate likely cause of the dismissal. C450/05 NCAWU obo Sethlogelo & Others v CCMA & Others retrench not genuine but a sham 197 JS209/06 NUMSA & others v Glenlux Lighting (Pty) Ltd Employees failure to apply for positions should not have led to automatic retrenchment Employer obliged to consider suitable alternatives under s 189(3)(b) of LRA 189(3)(b) C218/06 Airey & Others v GE Security (Africa) there was an agreement to retrench the employee, such an agreement could not prevent the employee from later challenging the fairness of the dismissal, depending on the facts of the case. However, if a proper agreement was made between the parties, the court would no longer have jurisdiction. 189(3)(b) and s 189(3)(d) C218/06 Airey & Others v GE Security (Africa) not only obliged to show the general need to retrench, but also the need to retrench the particular employee. C218/06 Airey & Others v GE Security (Africa) It made no sense for an employee to only know about the selection criteria once he stepped into the consultation meeting C218/06 Airey & Others v GE Security (Africa) fait accompli. When the employee received his written notice, a specific structure had already been adopted by the employers management committee. The employee was therefore already faced with a decision that his position was redundant. C218/06 Airey & Others v GE Security (Africa) Selection criteria/ Bumping LIFO was the most objective and fair criterion to use; This criterion, however, need not be applied in those cases where its application could result in loss of skills or disrupt the business operations JS460/0 NUMSA obo members v Timken SA (Pty) Ltd Retrenchment presented as a fait accompli JS694/07 Visser v Atronic International Gmbh Substantive fairness rather poor performance JS380/08 SASBO obo Boughey v Nedbank Limited LIFO predetermined email notice 189(1); relevant and sufficient info, placing in position to meaningful consult, even first meeting. D228/08 Ann Smith v SA Greetings (Pty) Ltd or misconduct As long as an employer was able to prove that the dominant purpose of the retrenchment route was the economic viability of the enterprise, the employer might well be entitled to utilize s 189. C640/07 FAWU obo Kapesi & 31 others v Premier Foods Limited t/a Blue Ribbon Salt River Misconduct per se could not constitute an economic rationale for a dismissal. C640/07 FAWU obo Kapesi & 31 others v Premier Foods Limited t/a Blue Ribbon Salt River Severance No power to approve Ultra Vires J534/08 Gardner & Others v Central University of Technology Free State Change Conditions of employment S189 Advise ee consultation was to avoid dismissal, minimize, reduce impact JS717/06 BEMAWU obo Manley Mohapi v Clear Channel Independent (Pty) Ltd Extended sick leave not included in consultation process D655/06 Dube v Ithala Development Bank Limited Consult not in writing JR469/09 Matthee v Kerradam Properties (Pty) Ltd t/a Cabanga Conference Centre Substantive fairness Genuine justified, fair reason to dismiss D655/06 Dube v Ithala Development Bank Ltd fair JS286/09 Tetley v Caterplus (Pty) Ltd Consultation Employees to participate JS786/04 Dinat and Others v Edgars Consolidated Employer intended to transfer employment contracts to labour broker; employees refused; had not provided any evidence in justification of the employees dismissal P180/05 Chemical, Energy, Paper, Printing, Wood and Allied Workers Union and Others v Print Tech (Pty) Ltd and Others Placed in pool while vacancies existed the employer will resort to a dismissal as a measure of last resort. Such an obligation is understandable because dismissals based on operational requirements constitute so-called no-fault dismissals. PA5/04 Oosthuizen v Telkom (SA) Ltd Vacancies Refuse to apply Failing to offer positions JA36/05 SAA v Bogopa & Others Selection criteria FIFO as a selection criterion could not be held to be fair and objective criterion JA49/07 Screenex Wire Weaving Manufacturing (Pty) Ltd v Ngema & Others substantively fair, lost a major contract, dismissed the employees in order to utilize the services of employees provided by labour brokers, procedural fairness, failed to engage with the applicant in a meaningful consensus-seeking process in that the respondent reneged on an agreement and dismissed the employees before the union representative had had an opportunity to consult with the employees. The court granted an order of reinstatement. JS463/2010 National Union of Mineworkers and Others v DB Contracting North CC Selection criteria There was therefore no evidence to prove that there was consultation on the selection criteria; that the employees knew and understood the selection criteria; that the selection criteria were fair and objective; the two respondents were fairly identified for retrenchment; that the two respondents did not apply for positions; and that the employees that were appointed to the respondents positions had more skills or more appropriate skills than the respondents JA 77/2010 Super Group Supply Chain Partners v Dlamini and Others Retrenchment/ Misconduct: an employer could pin its colours to the mast of one type of dismissal and try again to dismiss for another ostensible reason when it failed in proving that the first time that the dismissal was fair. C722/2012 FAWU and Others v Premier Foods Ltd operational requirements should be governed by law rather than by guidelines which meant that the duty to follow the procedure for operational reasons was higher than in other reasons (misconduct and incapacity). meaningfully engage with the applicant and not simply advise her of the decision that he had made. It was common cause that at the two meetings the parties had held, no financials were looked at, nor were there any meaningful discussions on avoidance measures and not just measures to avoid retrenchment but to save the business entitled to be furnished with the reasons why those had been rejected JS75/10 Lombard v ABC Resources (Pty) Ltd Pregnant, there could never have been any consultation meeting. 20 Month's compensation. JS248/11 Van Pletzen v Danmar Autobody West Rand (Pty) Ltd and Another Consultation, Had those consultations actually taken place they would have discovered that he was not only a specialist in potable water but also waste water, The dismissal for operational reasons was accordingly also substantively unfair. JA82/2011 Palace Engineering Services (Pty) Ltd v Phasha Employee who rejected an employers offer of reasonable employment for no sound reason could not then claim severance pay. Irvin & Johnson Ltd v CCMA (2006) 27 ILJ 935 (LAC) (JA 40/2012) [2013] ZALAC 19 Astrapak Manufacturing Holdings (Pty) Ltd v CEPPAWU Agreement was in full and final settlement. Agreement was in full and final settlement. He had a duty to enquire into the merits of the contention by the applicant that he had not waived his rights to challenge what he considered a retrenchment that did not accord with the law. There had been no consultation prior to the retrenchment and the applicant had been presented with a fait accompli. (JR 840/12) [2013] ZALCJHB 295 Hodges v Urban Task Force Investments CC and Others Selection criteria LIFO principle. Not only criterion. as it need to retain the best skills given the consolidated position that the respondent needed to fill. Ignored the obligation to consult on the timing of the dismissal; ways to mitigate the adverse effects of the dismissals; and the severance pay for dismissed employees. Pay 12 months' compensation. (D924/10) [2014] ZALCD 1 Mawe v Nortech International (Pty) Ltd Severance pay Section 84(1) of the BCEA. As his employment after retirement was for less than a year he therefore was not entitled to severance pay in terms of s 41 of the BCEA. Employee not entitled to severance pay. (C1142/10) [2014] ZALCCT 20 Rogers v Exactocraft (Pty) Ltd Legality of notice in terms of s 189A(8)(b) read with s 189A(2)(a) of the LRA. If employer chose not to refer dispute at earliest permissible moment. If agreement was not reached in respect of the retrenchment and the dispute was referred for conciliation, it would have to hold off from issuing notices of termination for the period mentioned in s 64(1)(a). (J32/2014) [2014] ZALCJHB 174 Food and Allied Workers Union v The COL Chain (Pty) Ltd Procedure A substantively fair dismissal could not be transformed into a substantively unfair dismissal nearly by a finding of gross procedural unfairness. (JS319/13) [2014] ZALCJHB 331 Facrie v Paras Carpets t/a Nicolela Carpets Retrenchment/ Misconduct: dismissal Obligation not to dismiss if can be avoided; Measure of last resort JS560/05 Michael v Compuware Corporation SA Substantive Fairness JS 805/04 Khanyile and Others v Air Chefs (Pty) Ltd (JS 805/04) [2015] ZALCJHB 238 (4 August 2015) NUM and Another v Black Mountain Mining (Pty) Ltd (CA22/2012) [2014] ZALAC 78 (10 December 2014) and at [37] ..An employer must first establish on a balance of probabilities that the dismissal of the employee contributed in a meaningful way to the realisation of that need. In my view, dismissals for operational requirements must be a measure of last resort, or at least fair under all of the circumstances. A dismissal can only be operationally justifiable on rational grounds if the dismissal is suitably linked to the achievement of the end goal for rational reasons. The selection of an employee for retrenchment can only be fair if regard is had to the employees personal circumstances and the effect that the dismissal will have on him or her compared to the benefit to the employer. This takes into account the principles that dismissal for an employee constitutes the proverbial death sentence. South African Commercial Catering and Allied Workers Union (SACCAWU) and Others v Gallo Africa (JS1495/01) [2005] ZALC 93 (17 October 2005) at para 29. Nhlamulo Ndhela v Sita Information Networking Computing BV (Incorporated in the Netherlands) CASE NO: JS 960/12 Section 189 of the LRA sits alongside a cluster of statutory rights which give practical meaning to the right not to be unfairly dismissed which is contained in section 185 of the LRA. Although crafted in procedural terms, the object of section 189 is substantive. It is aimed at the retention of jobs and if the jobs cannot be retained, at ensuring that any processes resulting in job losses are fair and the adverse effects of job losses are mitigated. In National Education Health and Allied Workers Union v University of Cape Town & Others, the Constitutional Court stated that the LRA must be interpreted in a manner which respects security of employment as a core value of the Constitution (Citations omitted) To make profit JS 805/04 Khanyile and Others v Air Chefs (Pty) Ltd (JS 805/04) [2015] ZALCJHB 238 (4 August 2015) General Food Industries Ltd v FAWU .a company is entitled to insist by economic restructuring that a profitable centre becomes even more profitable Adcock Ingram Consultation in terms of section 189 of the Act, is a two-way process. No meaningful consultation can take place if one party withdraws from the process. There should also ultimately be finality in the consultation process. It cannot be held in abeyance by a party who insists that the process is not finalised when it is quite clear that the process had been. reason for the dismissal is a fair reason JS 805/04 Khanyile and Others v Air Chefs (Pty) Ltd (JS 805/04) [2015] ZALCJHB 238 (4 August 2015) Carephone (Pty) Ltd v Marcus NO and Others The word fair introduces a comparator, that is, a reason which must be fair to both parties affected by the decision. The starting point is whether there is a commercial rationale for the decision. But, rather than take such justification at face value, a court is entitled to examine whether the particular decision has been taken in a manner which is also fair to the affected party, namely the employees to be retrenched. To this extent the court is entitled to enquire as to whether a reasonable basis exists on which the decision, including the proposed manner, to dismiss for operational requirements is predicated. Viewed accordingly, the test becomes less deferential and the court is entitled to examine the content of the reasons given by the employer, albeit that the enquiry is not directed to whether the reason offered is the one which would have been chosen by the court. Fairness, not correctness, is the mandated test. Restructuring same position JS955/2011, JS54/2011 Ledwaba v BP Southern Africa (Pty) Ltd (JS955/2011, JS54/2011) [2015] ZALCJHB 255 (12 August 2015) Restructuring employer adopting a new organogram employees invited to apply for new positions employee not appointed and subsequently retrenched new position not materially different from the previous one employee not offered available alternative position dismissal unfair. South African Airways v Bogopa and Others (JA 36/05) [2007] ZALAC 10 (3 August 2007), at para 60 An employer may not dismiss an employee for operational requirements when such employer has a vacant position the duties of which the employee concerned can perform with or without at least minimal training []. Where the employer has a vacancy and the employee can perform the duties attached to that vacancy, the employer would be acting unfairly in dismissing the employee without offering the employee such a position and the ensuing dismissal would be without a fair reason. If an employer can show that a good profit is to be made in accordance with sound economic rationale and it follows that fair process to retrench an employee as a result thereof it is entitled to retrench. When judging and evaluating an employers decision to retrench an employee this court must be cautious not to interfere in the legitimate business decisions taken by employers who are entitled to make a profit and who, in so doing, are entitled to restructure their business Selection criteria JS 44/12, JS 62/12 National Union of Metalworkers of South Africa and Others v DC Steel Construction (JS 44/12, JS 62/12) [2015] ZALCJHB 342 (6 October 2015) It would therefore be permissible to retain employees for example, with a skill that is vital to the business of the employer despite their years of service, their production output and work record. This criteria is obviously subject to the proviso that it is fairly and objectively applied. Van Rooyen & Others v Blue Financial Services (SA) Pty Ltd [2010] 10 BLLR 1119 (LC) There is no basis to conclude that the selection criteria applied was not fair, objective, and justifiable and based on rational grounds client refusing them access to its site JS906/10 MMusi and Another v Vemisani Security Services CC (JS906/10) [2015] ZALCJHB 343 (6 October 2015 unfair for an employer to dismiss an employee simply because a third party demands so Lebowa Platinum Mines Limited v Hill (1998) 18 ILJ 1112 (LAC) Nape v INTCS Corporate Solutions (Pty) Limited (2010) 31 ILJ 2120 Sec 198A, Procedural unfairness JS788/2012 Ndaba and Others v T - Systems (Pty) Ltd and Others (JS788/2012) [2015] ZALCJHB 346 (7 October 2015) It therefore follows from the above that the claim brought before the Court after the dismissal took place can only be in respect of an alleged substantive unfairness in terms of section 189A(18) and section189(19) of the LRA. The Court therefore lacks jurisdiction in regards to any claim of procedural unfairness in respect of the retrenchments. Furthermore, in line with the principles as set out in Edcon, there is no basis for any conclusion to be reached that the retrenchments were unlawful, invalid and/or of no force and effect. substantive fairness Test JS1079/12 South African Commercial & Catering Workers Union obo Bheki and Others v Entabeni Private Game Lodge (Pty) Ltd (JS1079/12) [2015] ZALCJHB 410 (18 November 2015) Kotze v Rebel Discount Liquor Group (Pty) Ltd (2000) 21 ILJ 129 (LAC) at para 18(h)-(i) The final decision to retrench must be informed by what transpired during consultation. That is why consultation must precede the final decision. The requirement of consultation is essentially a formal or procedural one, but it also has a substantive purpose. That purpose is to ensure that such a decision is properly and genuinely justifiable by the operational requirements or by a commercial or business rationale. And the function of the court in scrutinising the consultation process is not to second-guess the commercial or business efficacy of the employers ultimate decision but to pass judgment on whether such a decision was genuine and not merely a sham. The courts function is not to decide whether the employer made the best decision under the circumstances, but only whether it was a rational commercial or operational decision, properly taking into account what emerged during the consultation process. substantive fairness Test JS49/12 South African Transport and Allied Workers Union and Others v G4S Aviation Secure Solutions (JS49/12) [2016] ZALCJHB 10 (13 January 2016) in my view falls squarely within the realm of economic reasons contemplated within the meaning of operational requirements. These reasons related to the financial management and competitiveness of the enterprise (within the meaning of similar reasons) BMD Knitting Mills (Pty) Lt [2001] 7 BLLR 705 (LAC) The starting point is whether there is a commercial rationale for the decision. But, rather than take such justification at face value, a court is entitled to examine whether the particular decision has been taken in a manner which is also fair to the affected party, namely the employees to be retrenched. To this extent the court is required to enquire as to whether a reasonable basis exists on which the decision, including the proposed manner, to dismiss for operational requirements is predicated. Viewed accordingly, the test becomes less deferential and the court is entitled to examine the content of the reasons given by the employer, albeit that the enquiry is not directed to whether the reason offered is the one which would have been chosen by the court. Fairness, not correctness is the mandated test Information JS491/10 South African Transport and Allied Workers Union and Others v Fedex Express Supaswift (Pty) Ltd (JS491/10) [2016] ZALCJHB 164 (12 February 2016) Test for procedural and substantive fairness in dismissals for operational reasons revisited; Employer required to proactively supply relevant financial data justifying claims of cost saving, huge losses, for profit, where that is a ground for alleged operational requirements; Procedural lapses have substantive implications; Fair procedure serves a substantive purpose. [44]From the outset I think it ought to have been mentioned that the peremptory speak ofs189(3)must be purposefully aimed compelling the employer to proactively supply all information that is relevant to the other parties to consultation. This procedural step serves a substantive purpose. It allows the union to be fully au fair with the issues, so that it can be placed in the speed that will enable it run along with the employer, along the tramlines set in the items(a)to(j)in identifying all matters and details that needs to be identified and dealt with. ...[67] the organogram, as this court has observed, amounted to nothing more that moving chairs to different decks in the same vessel. It proposed reclassification of jobs without changing the job specifications. It was an attempt to derive a consent from employees for a change in their conditions of employment, which amounted to accepting demotions. It did not constitute a fair reason for the dismissal of the second and further applicants. Moodley v Fidelity Cleaning Services (Pty) Ltd t/a Fidelity Supercare (2005) 26 ILJ 889 (LC) paras 5, 34. A critical, if not the most central ingredient of the consultation process, is the requirement of written notice and the disclosure of information. Effective consultation requires employees to have an opportunity to prepare for consultation by being given sufficient advance notice, an agenda and adequate information. Without this, the joint consensus-seeking process mandated by the legislature is hardly likely to be meaningful . . . The failure of employers to fulfil this obligation meaningfully, invariably leads to disputes, misconceptions, a breakdown in trust and the delegitimizing of the joint consensus-seeking process mandated by the statute. This does not entitle the court to decide if the reasons given by an employer are the best reasons available. The Labour Court is constitutionally and statutorily required to supervise the fairness of reasons given by employers where they dismiss employees on operational grounds. This cannot happen in vacuo. Where an employer contends that the operational justification for its decision to dismiss is reduction of operating costs, it must at least put forward evidence showing the actual operating costs which it sought to reduce. This can be done by producing financial information which demonstrates the relevant operating costs. This should not been an onerous task. Any sensible employer wishing to reduce costs must first know what costs are to be reduced. In addition, where an employer wishes to cut operating costs by reducing its headcount, it must at least produce evidence of the costs associated with the headcount and how this will meet the overall target of cost reduction. In the absence of this information, it is not possible for a court to decide if the decision is not arbitrary or capricious. Nor is it possible to decide if the decision is a rational or reasonable one, based on the information which was available to an employer at the time it decided to embark on a restructuring exercise. General Food Industries Ltd v FAWU 2003) 2 BLLR 140 (LAC) at para [33] Test JA 54/14 GEMALTO SOUTH AFRICA (PTY) LTD In the Labour Court, the appellant sought the review of the award on the basis that the award is defective and that the commissioners decision is not one that a reasonable decision-maker would have made when regard is had to the evidence before him; that the commissioner committed a gross irregularity in the conduct of the proceedings by misapplying the parity principle; he failed to apply his mind to the fact that the appellant only disciplined those employees it could prove had breached their contractual obligations and were therefore guilty of gross misconduct and, that the commissioner failed to apply the correct test which was to consider whether the appellant by distinguishing between the employees acted capriciously, arbitrarily or as a result of improper motive. The failure of employers to fulfil this obligation meaningfully, invariably leads to disputes, misconceptions, a breakdown in trust and the delegitimizing of the joint consensus-seeking process mandated by the statute. Ndlhela v Sita Information Networking Computing BV (Incorporated in the Netherlands) [2014] 35 ILJ 2236 (LC) It does not follow that just because an employer dismisses an employee due to its economical, technological, structural or similar need that the [Section 189A(i)] precondition has been met. An employer must first establish on a balance of probabilities that the dismissal of the employee contributed in a meaningful way to the realisation of that need. In my view, dismissals for operational requirements must be a measure of last resort, or at least fair under all of the circumstances. A dismissal can only be operationally justifiable on rational grounds if the dismissal is suitably linked to the achievement of the end goal for rational reasons. The selection of an employee for retrenchment can only be fair if regard is had to the employees personal circumstances and the effect that the dismissal will have on him or her compared to the benefit to the employer. This takes into account the principles that dismissal for an employee constitutes the proverbial death sentence. Substantive fairness J3159/12, JS1177/12 SACCAWU and Others v Woolworths (Pty) Ltd (J3159/12, JS1177/12) [2016] ZALCJHB 126 (5 March 2016) Dismiss employees for operational requirements in order to eliminate discrimination based on pay inequity: was operationally justifiable, to use equity as one of its grounds for operational requirements. It is incompetent for an employer to seek to protect an individual right not to be unfairly discriminated through an operational requirements process and thereby circumventing its obligation under Chapter III of the EEA. BMD Knitting Mills (Pty) Ltd v SACTWU [2001] 7 BLLR 705 (LAC) at para 19; see also CWIU and Others v Algrorax (Pty) Ltd [2003] 11 BLLR 1081 (LAC) at paras 69 70. I have some doubt as to whether this deferential approach which is sourced in the principles of administrative review is equally applicable to a decision by an employer to dismiss employees particularly in the light of the wording of the section of the Act, namely, the reason for dismissal is a fair reason. The word fair introduces a comparator, that is a reason which must be fair to both parties affected by the decision. The starting point is whether there is a commercial rationale for the decision. But, rather than take such justification at face value, a court is entitled to examine whether the particular decision has been taken in a manner which is also fair to the affected party, namely the employees to be retrenched. To this extent the court is entitled to enquire as to whether a reasonable basis exists on which the decision, including the proposed manner, to dismiss for operational requirements is predicated. Viewed accordingly, the test becomes less deferential and the court is entitled to examine the content of the reasons given by the employer, albeit that the enquiry is not directed to whether the reason offered is the one which would have been chosen by the court. Fairness, not correctness is the mandated test. The test formulated by the legislature in the 2002 amendments harkens back to the principle of proportionality or the rational basis test applied in constitutional and administrative adjudication in other jurisdictions. As such, the test involves a measure of deference to the managerial prerogative about whether the decision to retrench is a legitimate exercise of managerial authority for the purpose of attaining a commercially acceptable objective. Such deference does not amount to an abdication and, as stated in BMD Knitting Mills (Ply) Ltd(supra), the court is entitled to look at the content of the reasons given to ensure that they are neither arbitrary nor capricious and are indeed aimed at a commercially acceptable objective. The second leg of the enquiry is directed at the investigation of the proportionality or rationality of the process by which the commercial objectives are to be achieved. Thus, there should be a rational connection between the employer's scheme and its commercial objective, and through the consideration of alternatives an attempt should be made to find the alternative which least harms the rights of the employees in order to be fair to them. The alternative eventually applied need not be the best means, or the least drastic alternative. Rather it should fall within the range of reasonable options available in the circumstances allowing for the employer's margin of appreciation to the employee in the exercise of its managerial prerogative. section 189A (13) for hearing simultaneously with any action that the Applicants may institute in relation to the substantive fairness J332 /16 Association of Mineworkers And Construction Union (AMCU) and Another v Manganese (J332 /16) [2016] ZALCJHB 105 (18 March 2016) Dispute of fact. Referred for oral evidence. Banks and another v Coca-Cola SA - A Division of Coca-Cola Africa (Pty) Ltd (2007) 28 ILJ 2748 (LC). NUM and Another v Black Mountain Mining (Pty) Ltd (CA22/2012) [2014] ZALAC 78 (10 December 2014) at para 37. Steenkamp and others v Edcon Limited and others Unreported case number CCT 46/15, 22 January 2016. where an employer already dismissed employees without complying with a fair procedure, the consulting party may apply for an order reinstating the employees until the employer has complied with a fair procedure. Selection criteria NUM and others v Anglo American Research Laboratories (Pty) Ltd[2005)2 BLLR 148(LC), Murphy AJ considered an employer's deviation from LIFO and its selection criteria based on key skills retention and continued service delivery to its clients. In that instance, a skills matrix was developed but regard is also had to performance appraisals. The court held that in the circumstances in which the company found itself, the criteria applied within objective as required by s 189 (7)(b). Similarly, in Van Rooyen and others v Blue Financial Services (SA) (Pty) Ltd(2010) 31 ILJ 2735 (LC), the court held that an employer was entitled to have regard to competency , qualifications and experience as selection criteria. application should ensure that the dismissal does not cross the line between a no-fault dismissal and one based on performance SATAWU v Old Mutual Life Assurance Company South Africa Ltd and Another [2005] 4 BLLR 378 (LC) at para 85. Selection criteria: LIFO JS1117/10 National Union of Metalworkers of South Africa and Others v Beta Engineering (1969) (JS1117/10) [2016] ZALCJHB 144 (31 March 2016) It is my view that the LIFO principle mandates the employer to take into account the length of continuous employment and not intermittent or cumulative periods of service. In short, the conclusion to be drawn from the wording of s 189A is that this court appears to have been accorded a proactive and supervisory role in relation to the procedural obligations that attach to operational requirements dismissals. Where the remedy sought requires intervention in the consultation process prior to dismissal, the court ought necessarily to afford a remedy that accounts for the stage that the consultation has reached, the prospect of any joint consensus-seeking engagement being resumed, the attitude of both parties, the nature and extent of the procedural shortcomings that are alleged and the like. If it appears to the court that little or no purpose would be served by intervention in the consultation process in one of the forms contemplated by s 189A(13)(a),(b)and(c), then compensation as provided by para(d)is the more apposite remedy. alternative available Duty of employer to find alternative to retrenchment. Always unfair where dismissal occurs when there is an alternative available at the time of the dismissal. consultation: court's function J18/2014 LAC Standard Bank of South Africa Ltd v Letsoalo (J18/2014) [2016] ZALAC 43 (27 July 2016) ACTWU and Another v Discreto (a Division of Trump & Springbok Holdings) [1998] 12 BLLR 1228 (LAC) the function of a court in scrutinising the consultation process is not to second-guess the commercial or business efficacy of the employers ultimate decision, but to pass judgment on whether the ultimate decision arrived at was genuine and not merely a sham. Selection criteria: JS100/2012B Runguma v Civicus: World Alliance for Citizen Participation Inc (JS100/2012B) [2016] ZALCJHB 178 (12 May 2016) Chemical Workers Industrial Union & others v Latex Surgical Products (PTY) (2006) 27 ILJ 292 at 320 A-B The two types of selection criteria can be referred to as the agreed selection criteria and the fair and objective selection criteria respectively. Obviously the agreed selection criteria are selection criteria that have been agreed upon between the consulting parties. The fair and objective selection criteria must be used where the selection criteria have not been agreed upon between the consulting parties. What s 189(7), therefore, means is that, where the consulting parties have agreed upon the selection criteria, the employer is obliged to use the agreed selection criteria to select the employees to be dismissed. Where there are no agreed selection criteria, the employer is obliged to use only fair and objective selection criteria to select the employees to be dismissed. The Applicant had not, in any manner objected to the alternative of the selection process based on criteria identified. His concern insofar as the process of selection was concerned was that even though the majority of the management team agreed to it, individual concerns were nevertheless not taken into account. This in my view can hardly lead to a conclusion that the process of selection was not fair or objective, especially if it was agreed upon by the management team he formed part of. principles of bumping JS1/2015 Motor Industry Staff Association and Another v Autozone Grahamstown (JS1/2015) [2016] ZALCJHB 204 (3 June 2016) Porter Motor Group v Karachi [2002] 4 BLLR 357 (LAC). (1) it should be reiterated once again that fairness is not a one-way street. It must accommodate both employer and employee. Section 189 (2) of the Act requires both parties to attempt to reach consensus on alternative measures to retrenchment, so there is a duty on an employee as well to raise bumping as an alternative. An employer is obliged to consult with an employee about the possibility of bumping.(2) Bumping is situated within the "last in first out" (LIFO) principle which is itself rooted in fairness for well-established reasons. Longer serving employees have devoted a considerable part of their working lives to the company and their experience and expertise is, an invaluable asset. Their long service is an objective tribute to their skills and industry and the avoidance of misconduct. In the absence of other factors, to be numerator during after, their service alone is sufficient reason for them to remain and others to be retrenched. Fairness requires that the loyalty be awarded.(3) The nature of bumping depends on the circumstances of the case. A useful distinction is that of providing bumping into horizontal and vertical displacement. The former assumes similar status, conditions of service and pay and the latter any diminution in them.(4) The first principle is well-established, namely that bumping should always take place horizontally, before vertical displacement is resorted to. The bumping of an individual, in the absence of the other relevant factors, seldom causes problems and the fact of longer service establishes the inherent fairness thereof. Vertical bumping should only be resorted to where no suitable candidate is available for horizontal bumping. Where small numbers are involved the implementation of horizontal or vertical bumping should present few problems.....(7) The pool off possible candidates to be bumped should be established and the circumference thereof will depend on the mobility and status of the employees involved. The managerial prerogative entails moving employees to the best advantage of a company within the parameters of its activities, national or international; fairness requires that the same circumference should define the limits of potential candidates to be bumped. The career path of the employee in the company will often be a useful indication of scale of mobility.....(9) Bumping does not apply to employees in a different grade if the longest serving employee cannot do the work of the employee with shorter service in that grade. This limitation applies most frequently where competence, technical or professional knowledge or experience and specialised skills are involved. Where the necessity arises of retraining those, what transferred, this should be carried out, unless it places an unreasonable burden on the employer.(10) The status of the post into which an employee is bumped is relevant, as the employer's prerogative to choose someone of managerial/supervisory level should be respected.' This is a case where it would be unfair to the employer in a small set up such as the branch to deplete the existing skills by bumping the debtor's clerk or the merchandiser. consulting party is party with collective bargaining rights J2578/15 Association of Mineworkers and Construction Union (AMCU) and Others v Bafokeng Rasimone Management Services (Pty) Ltd and Others (J2578/15) [2016] ZALCJHB 549; (2017) 38 ILJ 931 (LC) (19 December 2016) [154] The elevation to the status of consulting party as contemplated in section 189(1)(a) of the LRA, is strictly speaking not dependent on the principle of majoritarianism, but rather on such a party acquiring the status of consulting party by way of a collective agreement.[155] It is not envisaged in section 189 retrenchment procedures that the affected employees would be afforded a hearing as contemplated in a dismissal for misconduct or incapacity. The nature of the consultation process and the topics for consultation in a retrenchment process cannot be compared to a hearing as contemplated in cases involving misconduct or incapacity.[156] In my view there is no basis to excise sections 189(1)(a)-(c) from the LRA, alternatively to reinterpret it and to declare that where an employer consults with a trade union that employer is required to consult within terms of a collective agreement, that employer must also consult with any other trade union whose members are likely to be affected by the proposed dismissals.[157] To do so would not only disregard judgments this Court is bound to follow, but would also ignore and probably undermine conscious policy choices made by the legislature when formulating the LRA. redundancy of position: Substantive fairness JS 398 / 15 RISMA VILJOEN vs JOHANNESBURG STOCK EXCHANGE LTD Chemical Workers Industrial Union and Others v Latex Surgical Products (Pty) Ltd (2006) 27 ILJ 292 (LAC) at para 55. Whether or not there was a fair reason for the dismissal of the individual appellants relates to a general question and a specific question. The general question is whether or not there was a fair reason for the dismissal of any employees. The specific one is whether there was a fair reason for the dismissal of the specific employees who were dismissed, which in this case, happened to be the individual appellants. The question of a fair reason to dismiss the specific employees who were dismissed goes to the question of the basis upon which they were selected for dismissal whereas the other question relates to whether or not there was a reason to dismiss any employees in the first place. Therefore, there exists a proper business rationale in this instance. Kotze v Rebel Discount Liquor Group (Pty) Ltd (2000) 21 ILJ 129 (LAC) at para 36. What we have to do is to decide whether the respondent's decision to retrench was informed and is justified by a proper and valid commercial or business rationale. If it is, then that is the end of the enquiry even if it might not have been the best under the circumstances. Van Rooyen and Others v Blue Financial Services (SA) (Pty) Ltd (2010) 31 ILJ 2735 (LC) at para 22. It is clear though that the regional managers would, in the restructured organization, be required to undertake additional responsibilities in relation to the expanded product lines and that the nature of their function would change. On balance, I am satisfied that the respondent has established that the difference in job content between the old and the new profiles of the regional managers' positions was sufficiently significant to justify the requirement that the applicants be assessed for their suitability for appointment to the new positions. Indeed, this appears to be the approach adopted by the applicants themselves in their memorandum addressed to Klopper on 28 December 2007 in which they appear to accept that the new profile developed by the respondent was technically exact and complete, and that the additional responsibilities that regional managers would be required to assume had the consequence of an appreciable difference in job content. In short, I am satisfied that the respondent has established a fair commercial rationale for its decision to restructure its business operations and that the change rendered the applicants redundant, at least in the sense that its decision to assess the applicants' suitability for the restructured posts was fair in the circumstances. redundancy can result from a reorganization of a business. Plaaslike Oorgangsraad van Bronkhorstspruit v Senekal (2001) 22 ILJ 602 (SCA) at para 27. on the evidence their jobs did become redundant; it was their duties that remained and were allocated for performance by other employees within the revised structure. Broll Property Group (Pty) Ltd v Du Pont and Others (2006) 27 ILJ 269 (LAC) at para 24. on the evidence their jobs did become redundant; it was their duties that remained and were allocated for performance by other employees within the revised structure. The aforesaid being found to be the case, the Court then concluded:[6] It followed that the three respondents were liable to be dismissed for substantive reasons unless they were appointed to other positions within the revised structure. alternative position employee required to apply for available alternatives employee refusing to apply thus exposing herself to retrenchment JS 398 / 15 RISMA VILJOEN vs JOHANNESBURG STOCK EXCHANGE LTD Forecourt Express (Pty) Ltd v SA Transport and Allied Workers Union and Another (2006) 27 ILJ 2537 (LAC). alternative positions what constitutes reasonable alternative alternatives available to employee reasonable procedural fairness - principles considered where employee could avoid her own retrenchment issue of procedural fairness does not arise JS 398 / 15 RISMA VILJOEN vs JOHANNESBURG STOCK EXCHANGE LTD Freshmark (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2003) 24 ILJ 373 (LAC) at para 25. . an employee who unreasonably refuses an offer of alternative employment is not without fault. He has himself to blame if he subsequently finds himself without employment and, therefore, does not deserve to be treated on the same basis as the employee who finds himself without employment due to no fault on his part . Where the employer offers to continue to employ the employee - whether in the same position but on different terms or on the same terms but in a different position or in the same position and on the same terms but in a different place, that is still alternative employment. It is an offer of an alternative contract of employment. Latex Surgical . Accordingly, when an employer's operational requirements dictate that its workforce should work in accordance with certain terms and conditions by which such workforce is not bound, the employer should convey this to the workforce and ask them to agree to work according to such terms and conditions, negotiate with them and warn them that, if they reject such terms and conditions, he will have to terminate their contracts of employment and employ new employees in their place, who will accept such terms and conditions. If the employees reject such proposals and the employer terminates their services, the employees cannot complain that they were not given a chance to avoid their dismissal by accepting the new terms and conditions of employment. Entertainment Catering Commercial and Allied Workers Union of SA and Others v Shoprite Checkers t/a OK Krugersdorp (2000) 21 ILJ 1347 (LC) at para 28. where the amendment to terms and conditions of employment is proffered by an employer as an alternative to dismissal during a bona fide retrenchment exercise and it is a reasonable alternative based upon the employer's operational requirements, the employer will be justified in dismissing employees who refuse to accept the alternative on offer. Mineworkers Union/Solidarity on behalf of MacGregor v SA National Parks (2006) 27 ILJ 818 (LC) at para 39. If the applicant had followed the instructions of Mr Mogome, he would have just continued in the employ of the respondent, but in the position of manager: environmental management services. His intransigent stance in refusing to change direction caused the respondent to advertise that position internally and to treat all the applicants the same. The applicant was nonetheless encouraged to apply, even belatedly, as the respondent believed he was the best person for the position. However, after the long consultation process, which included meetings and correspondence, the respondent was entitled to decide not to accept an 'under duress' application for the position. The applicant was interviewed though. It was clear that he was not interested in the position. If he was, he would have withdrawn the 'under duress' reservation. consultation process joint consensus seeking process requires proper participation in the process by both parties employee defeating objectives of process by entering the process with pre-decided agenda JS 398 / 15 RISMA VILJOEN vs JOHANNESBURG STOCK EXCHANGE LTD Latex Surgical (supra) at para 18(i). See also SA Clothing and Textile Workers Union and Others v Discreto A Division of Trump and Springbok Holdings (1998) 19 ILJ 1451 (LAC) at para 8. The function of the court in scrutinizing the consultation process is not to second guess the commercial or business efficacy of the employer's ultimate decision but to pass judgment on whether such a decision was genuine and not merely a sham. The court's function is not to decide whether the employer made the best decision under the circumstances, but only whether it was a rational commercial or operational decision, properly taking into account what emerged during the consultation process. Van Rooyen and Others v Blue Financial Services (SA) (Pty) Ltd (2010) 31 ILJ 2735 (LC) at para 19. Fair procedure primarily requires that the parties engage in a meaningful joint consensus-seeking process. This obligation, which has its origins in Johnson & Johnson v Chemical Industrial Workers Union (1999) 20 ILJ 89 (LAC), requires at least that the parties attempt to reach consensus on the issues listed in s 189(2) and (3). More precisely, the employer must invite representations on these issues from the appropriate consulting party, seriously consider and respond to any representations that are made. Both parties are required, in good faith, to seek consensus. This is not a mechanical process - meaningful joint decision-making requires that the parties act with the honest intention of exploring the prospects of agreement. If no joint consensus-seeking process has occurred, the court is obliged to determine which party was responsible for this state of affairs. SA Society of Bank Officials v Standard Bank of SA[27], where the Court said that Consultation is a two-way street.[103] That being the case, and as held in Johnson and Johnson (Pty) Ltd v Chemical Workers Industrial Union[28]:The achievement of a joint consensus seeking process may be foiled by either one of the consulting parties. In this instance it was the applicant. In Visser v Sanlam[29] the Court held: The process of consultation envisaged in s 189(2) involves a bilateral process in which obligations are imposed upon both parties to consult in good faith in an attempt to achieve the objectives specified in the section. In my view, the respondent fulfilled its obligations in terms of s 189(2). If any conclusion is justified, it is that appellant failed to engage adequately in the consultation process envisaged in the section. Accordingly, it cannot be said that the retrenchment of appellant was procedurally unfair. Smith and Others v Courier Freight (2008) 29 ILJ 420 (LC) at para 68 69. I find on a balance of probabilities that the union was responsible for frustrating the restructuring process to the detriment of its members, the employees. In NUMSA & others v Kaefer Thermal Contracting Services (Pty) Ltd [2002] 6 BLLR 570 (LC) the court held that where the consultation process has been frustrated it is not for the party who caused the frustration to complain that there was non-compliance with the consultation process. I am satisfied that the employer made genuine attempts to engage with the union on the retrenchment process. However, it could not allow the union to delay the process of restructuring indefinitely. The union overplayed its hand and must now accept the consequences of its ill-advised decision unnecessarily to delay the consultation process. In the light of the aforesaid, I believe there was substantial compliance with the provision of s 189 of the Act by the employer. Severance pay entitlement to Section 41(4) of BCEA considered employee unreasonably refused alternative position not entitled to severance pay JS 398 / 15 RISMA VILJOEN vs JOHANNESBURG STOCK EXCHANGE LTD Irvin & Johnson Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2006) 27 ILJ 935 (LAC) at paras 44 45 It seems to me that the effect of s 41(4) is that, where the employer has arranged alternative employment for an employee who is facing a (possible) dismissal for operational requirements, either in his employ or in the employ of another employer, three scenarios are possible: The one scenario is that the employee unreasonably refuses such alternative employment in which case s 41(4) applies and the employee forfeits the right to severance pay. The second scenario is where the employee reasonably refuses such alternative employment in which event he is entitled to payment of severance pay. The third scenario is where the employee accepts the alternative employment in which event he also forfeits the right to severance pay. It will be seen from the three scenarios set out above that in no scenario does an employee get both the severance pay and the alternative employment. However, there is a scenario where he gets neither. That is where he has himself to blame because he has acted unreasonably in refusing the offer of alternative employment. Pretorius v Rustenburg Local Municipality and Others (2008) 29 ILJ 1113 (LAC) at para 67. the appellant's rejection of the first respondent's offer of alternative employment and his insistence that he be offered the same position or a position at the same or a higher level is, in all the circumstances of this case, quite unreasonable. Accordingly, he forfeited whatever right he might otherwise have had to severance pay. He was going to suffer no reduction of salary. The position he was offered was quite a senior position. The first respondent had to try and accommodate all the employees. He was to report to the municipal manager. The first respondent made it clear that it needed his technical skills. Business closure JR1006/15; JR1004/15 CVO School Vivo v Pretorius and Others; CVO School Vivo v Pretorius and Others (JR1006/15; JR1004/15) [2017] ZALCJHB 412 (6 April 2017) elch v Kulu Motors Kenilworth (Pty) Ltd and Others (2013) 34 ILJ 1804 (LC) at para 39. To the extent that it was suggested by the respondents that barring a financial miracle the applicant was aware that the closure of the business was obvious and inevitable, this did not serve to relieve KMK of its obligation to consult the applicant. Even if the outcome may have seemed unavoidable to some, the required process of consulting at the earliest opportunity and before closure has everything to do with at least giving those most affected an opportunity to make proposals when they may still have an impact and be implemented. Substantive fairness JS159/16 NUMSA obo Kili and Others v Viva Steel FAB Engineering (Pty) Limited t/a Viva Engineering (JS159/16) [2017] ZALCJHB 339 (6 September 2017) Chemical Workers Industrial Union and Others v Algorax (Pty) Ltd (2003) 11 BLLR 1081 (LAC) [69] Sometimes it is said that a court should not be critical of the solution that an employer has decided to employ in order to resolve a problem in its business because it normally will not have the business knowledge or expertise which the employer as a businessperson may have to deal with problems in the workplace. This is true. However, it is not absolute and should not be taken too far. When either the Labour Court or this Court is seized with a dispute about the fairness of a dismissal, it has to determine the fairness of the dismissal objectively. The question whether the dismissal was fair or not must be answered by the court. The court must not defer to the employer for the purpose of answering that question. In other words it cannot say that the employer thinks it is fair, and therefore, it is or should be fair. The Court in paragraph 70 went further to point that the Court should not hesitate to deal with an issue that requires no special expertise, skill or knowledge particularly where logic and common sense prevail. Practical JR2615/13 Vusa-Isizwe Secuirity (Pty) Ltd v Rampai N.O. and Others (JR2615/13) [2017] ZALCJHB 149 (4 April 2017) [28]With reinstatement being excluded on the basis that it is not reasonably practicable, the employees would be entitled to compensation. Xstrata SA (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers on behalf of Masha and others(2016) 37 ILJ 2313 (LAC) selection criteria: skills JA/29/16 Kenco Engineering CC v National Union of Metal Workers of South Africa (NUMSA) obo Members (JA/29/16) [2017] ZALCJHB 274 (1 August 2017) JS07/15 Motloutsi and Another v Paballo and Khumo Trading CC (JS07/15) [2017] ZALCJHB 490 (17 November 2017) The duty rests on an employer to prove that a dismissal of an employee was unavoidable. An employer must disclose all relevant information prior to consultation to ensure meaningful joint consensus-seeking engagement. The dismissal was unfair and the applicants were compensated. [18] LIFO is generally a fair selection criterion. It simply implies that those employed last may be the first to suffer the consequences of a no fault dismissal. [19] With regard to procedural fairness, the LRA requires an engagement in a meaningful joint consensus-seeking process aimed at reaching an agreement on appropriate measures, the method of selecting and severance pay. From the evidence before me, such a process was engaged in but parties failed to reach an agreement. Section 189(3) of the LRA obligates an employer to issue a written notice inviting the other party to consultation. Further the employer is obliged to disclose in writing all the relevant information. The notice termed change in operational requirements of business only invites the applicants but does not disclose the relevant information as required by the section. [20] Accordingly, I come to the conclusion that the dismissal of the first applicant is substantively fair but procedurally unfair. The dismissal of the second applicant is both substantively and procedurally unfair. 3. The respondent is to pay to the first applicant as compensation, an amount equivalent to three months’ salary as at the time of dismissal less statutory deductions. 4. The respondent is to pay to the second applicant as compensation, an amount equivalent to twelve months salary as at the time of dismissal less statutory deductions. retaining labour brokers J1687/15, JS620/15 National Union of Mineworkers and Others v WBHO Construction (Pty) Ltd (J1687/15, JS620/15) [2017] ZALCJHB 512 (13 December 2017) rationale for retrenchment evidence considered proper rationale for retrenchment shown Operational requirements bumping of employees between operating divisions principles pertaining to bumping considered proper cause for differentiating between divisions proper cause for not applying bumping across all divisions approach of employer fair Operational requirements selection criteria retention of TES employees on specific contracts approach justified employer did not act unfairly Operational requirements issue of alternatives to retrenchment considered alternatives properly explored lay off policy considered no suitable alternatives available Operational requirements selection criteria considered fair and objective basis for selecting employees for retrenchment selection of employees not unfair Re-employment alleged failure by employer to re-employ in terms of undertaking constitutes an issue of an unfair labour practice in terms of Section 186(2)(c) of the LRA no such case referred to conciliation cannot be raised now Dismissal operational requirements dismissal substantively fair Operational requirements procedural fairness Section 189A(8) considered no requirement to first refer matter to conciliation before retrenchment absence of referral does not render dismissal procedurally unfair issue is about time limits time limits complied with Operational requirements procedural fairness even if Section 189A(8) not complied with insufficient basis to per se establish procedural unfairness. Operational requirements procedural fairness procedural unfairness can only be challenged in the case where Section 189A applies by way of application in terms of Section 189A(13) procedural challenge thus only be decided on the basis of procedural fairness set out in that application no issue raised that labourers not properly notified of retrenchment or properly consulted cannot be considered Dismissal operational requirements procedural fairness dismissals procedurally fair [51] The Court in Forecourt Express (Pty) Ltd v SA Transport and Allied Workers Union and Another[7] dealt with the situation where employees were offered alternative positions with a temporary employment service in circumstances where the employer, due to its business methodology, decided to declare those positions internally within the employer itself redundant. This is clearly similar to a situation where an employer wishes to retain TES employees but retrenches permanent employees. The Court firstly held:[8] the appellant was entitled to choose the manner in which it would run its business provided that it did not change the terms and conditions of employment of the employees without their consent, and provided that, if it contemplated the dismissal of the employees, it complied with its obligations provided for in s 189 of the Act. Having established this principle, the Court then said, with specific reference to the operational circumstances of the employer:[9] Du Plessis had testified that, due to peaks and valleys, it made more sense to use labour brokers because the appellant paid only for cars actually moved whereas, if the appellant used permanently employed employees, it would be paying them per hour and not per car moved. In my judgment, even if it can be said that the appellant did not prove 'peaks' and 'valleys', it was entitled to prefer the use of labour brokers and subcontractors to the use of permanently employed workers because the former arrangement gave it certain benefits which the latter arrangement did not offer. Accordingly, whether the peaks and valleys were proved is neither here nor there. The appellant was entitled to choose a way of doing business that was less risky. The way of using labour brokers and subcontractors was less risky than the one of using permanent workers.[52] A similar approach was adopted in National Union of Metalworkers of SA and Others v John Thompson Africa[10] where the Court said, of equal application in casu: Furthermore, the nature of the respondent's business was such that its labour requirements fluctuated in quality and quantity. Labour supplied via a brokerage was therefore more efficient than having a workforce that was fixed. Outsourcing certain work was more effective for the respondent. Mr Petersen's proposition that the respondent would outsource work whilst its own employees stood idle, purely for the purposes of shrinking the business to justify the ultimate retrenchment of the employees is improbable. The respondent existed to make a profit. If outsourcing was not profitable it would have avoided it. The Court in John Thompson then concluded:[11]I find that there was a commercial rationale for the outsourcing of labour. The respondent's use of labour brokers was therefore not unfair. bumping Amalgamated Workers Union of SA v Fedics Food Services (1999) 20 ILJ 602 (LC) at paras 3 4. In other words, should an employee with long service be made redundant in one department he should be transferred to a similar post elsewhere in the establishment, even though it may be occupied by an employee with shorter service. Should there be no such post, the practice is to offer the longer-serving employee a less skilled position occupied by employees with shorter service. This procedure is graphically called ''bumping'. In short, one ''bumps' sideways and down. The restriction of this principle to departments can lead to abuse. Long-serving employees can be transferred to departments where redundancy is expected and thereby retrenched at a later stage. Such a practice would clearly subvert the objective application of the principle.' General Food Industries Ltd t/a Blue Ribbon Bakeries v Food and Allied Workers Union and Others (2004) 25 ILJ 1655 (LAC) at para 36. What was also established at the trial in this matter is that through bumping the second and further respondents could have been transferred to other bakeries to take jobs done by employees who had shorter service periods than themselves but performing work that the second and further respondents could perform I can see no justification for an employer to retrench an employee who has served him loyally for, for example 20 years, and retain one who has been employed for only a few months to perform work that the one with a longer service period can also perform. On the contrary allowing that approach in the absence of a really sound reason or explanation could lead to abuse. An employer who wants to get rid of an employee (but lacks legitimate grounds to do so) could transfer such employee to a branch which he knows is likely to embark upon a retrenchment exercise in due course if he thought that such employee would be a likely candidate for retrenchment in that branch on the basis of LIFO which is applied only to the affected branch. In that way the employee could be selected for retrenchment at that branch and be retrenched despite the fact that in his old branch there are employees who have shorter service periods than him who perform work that he can perform. Porter Motor Group v Karachi (2002) 23 ILJ 348 (LAC) at para 16. See also Mtshali v Bell Equipment [2017] JOL 38221 (LAC) at para 22; Motor Industry Staff Association and Another v Autozone Grahamstown [2016] ZALCJHB 204 (3 June 2016) at para 70. This does not purport to be an exhaustive list and merely catalogues the rules laid down which are relevant to this case.(1) It should be reiterated once again that fairness is not a one-way street. It must accommodate both employer and employee. Section 189(2) of the Act requires both parties to attempt to reach consensus on alternative measures to retrenchment, so there is a duty on an employee as well to raise bumping as an alternative. An employer is obliged to consult with an employee about the possibility of bumping.(2) Bumping is situated within the 'last in first out' (LIFO) principle which is itself rooted in fairness for well-established reasons. Longer serving employees have devoted a considerable part of their working lives to the company and their experience and expertise are an invaluable asset. Their long service is an objective tribute to their skills and industry and their avoidance of misconduct. In the absence of other factors, to be enumerated hereinafter, their service alone is sufficient reason for them to remain and others to be retrenched. Fairness requires that their loyalty be rewarded.(3) The nature of bumping depends on the circumstances of the case. A useful distinction is that of dividing bumping into horizontal and vertical displacement. The former assumes similar status, conditions of service and pay and the latter any diminution in them.(4) The first principle is well established, namely that bumping should always take place horizontally, before vertical displacement is resorted to. The bumping of an individual, in the absence of the other relevant factors, seldom causes problems and the fact of longer service establishes the inherent fairness thereof. Vertical bumping should only be resorted to where no suitable candidate is available for horizontal bumping. Where small numbers are involved the implementation of horizontal or vertical bumping should present few problems.(5) Where large-scale bumping, sometimes referred to as 'domino bumping', necessitates vast dislocation, inconvenience and disruption, consultation should be directed to achieving fairness to employees while minimizing the disruption to the employer. Examples of disruption include difficulties caused by different pay levels, client or customer reaction to a replacement of employees and staff incompatibility. In evaluating the competing interests of the employer and the affected employees the consulting parties should carry out a balancing exercise. Where minimal benefits accrue to employees, while vast inconvenience is the lot of employers, fairness requires that fewer employees should move.(6) There will always be geographical limitations to bumping in that fairness will require that limits be placed on how far an employee is expected to move to bump another. Although prejudice to the employer in long-distance relocation cannot be excluded, in practice this will be rare. Generally speaking it is the employee who will suffer as a result of being removed from a cultural and social environment he or she has become accustomed to. Second guessing the desires of employees is undesirable; if they are happy to translocate then bumping should take place whatever the distances involved.(7) The pool of possible candidates to be bumped should be established and the circumference thereof will depend on the mobility and status of the employees involved. The managerial prerogative entails moving employees to the best advantage of a company within the parameters of its activities, national or international; fairness requires that the same circumference should define the limits of potential candidates to be bumped. The career path of the employee in the company will often be a useful indication of scale of mobility.(8) The independence of departments as separate business entities may be relevant but the argument that a company's departments are managed separately should be strictly scrutinized. Even if there is no past practice of transferring between branches or departments, the employer must consider interdepartmental bumping unless it is injurious to itself and to other employees.(9) Bumping does not apply to employees in a different grade if the longer serving employee cannot do the work of the employee with shorter service in that grade. This limitation applies most frequently where competence, technical or professional knowledge or experience and specialised skills are involved. Where the necessity arises of retraining those, who are transferred, this should be carried out, unless it places an unreasonable burden on the employer.(10) The status of the post into which an employee is bumped is relevant, as the employer's prerogative to choose someone of managerial/supervisory level should be respected. Management concerns that downgrading an employee will be demoralizing will not justify a decision not to bump downwards where the employee is prepared to accept downgrading. On the other hand the unwillingness of the affected employee to accept a lower wage may justify not bumping. [74]...As said in Porter Motor Group in the dictum quoted above, it must be a case of an employee that had devoted a considerable part of his or her working life to the employer, which in itself would illustrate the value of such an employee and would establish an objective tribute, in itself, to that employees skills and experience. 189A J1687/15, JS620/15 National Union of Mineworkers and Others v WBHO Construction (Pty) Ltd (J1687/15, JS620/15) [2017] ZALCJHB 512 (13 December 2017) [91] Section 189A (18) precludes this Court from adjudicating any dispute about the procedural fairness of a dismissal for operational requirements referred for adjudication in terms of Sections 191(5)(b)(ii) [29] Section 189A(18) reads: The Labour Court may not adjudicate a dispute about the procedural fairness of a dismissal based on the employer's operational requirements in any dispute referred to it in terms of section 191 (5) (b) (ii). See also Edcon (supra) at paras 157 158.[30] (2004) 25 ILJ 2358 (LC) at 2361I-2362B. See also Chemical Energy Paper Printing Wood and Allied Workers Union on behalf of Hlophe and Others v Bayfibre Central Co-Operative Ltd (2017) 38 ILJ 627 (LC) 20; Perumal and Another v Tiger Brands (2007) 28 ILJ 2302 (LC) at para 19; Thomas v Fidelity Corporate Services (Pty) Ltd (2007) 28 ILJ 424 (LC) at para 8.[31] The Section reads: 'If an employer does not comply with a fair procedure, a consulting party may approach the Labour Court by way of an application for an order (a) compelling the employer to comply with a fair procedure; (b) interdicting or restraining the employer from dismissing an employee H prior to complying with a fair procedure; (c) directing the employer to reinstate an employee until it has complied with a fair procedure; (d) make an award of compensation, if an order in terms of paragraphs (a) to (c) is not appropriate.[32] (2006) 27 ILJ 1026 (LC) at para 9.[33] (2007) 28 ILJ 2748 (LC) at para 18. See also Association of Mineworkers and Construction Union and Others v Shanduka Coal (Pty) Ltd (2013) 34 ILJ 1519 (LC) at para 27; National Union of Metalworkers of SA on behalf of Members v General Motors of SA (Pty) Ltd (2009) 30 ILJ 1861 (LC) at para 35; Zero Appliances (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2007) 28 ILJ 1836 (LC) at para 23.[34] (2007) 28 ILJ 1836 (LC) at para 23.[35] (2009) 30 ILJ 1861 (LC) at para 47. See also National Union of Metalworkers of SA and Others v Shakespear Shopfitters (Pty) Ltd (2008) 29 ILJ 1960 (LC) at para 9.[36] (supra) at para 13.[37] (2011) 32 ILJ 1236 (LC) at para 29.[38] (supra) at para 162.[39] (supra) at para 14.[40] (2017) 38 ILJ 463 (LC).[41] Id at paras 19 20.[42] Id at paras 29 30.[43] See Betlane v Shelly Court CC 2011 (1) SA 388 (CC) para 29; see also Van der Merwe and Another v Taylor NO and Others [2007] ZACC 16; 2008 (1) SA 1 (CC) para 122; President of the Republic of SA and Others v SA Rugby Football Union and Others [1999] ZACC 11; 2000 (1) SA 1 (CC) para 150; National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78; 2008 (5) SA 339 (SCA) paras 29-30.[44] See Imprefed (Pty) Ltd v National Transport Commission [1993] 2 All SA 179 (A) at 188-189.[45] [2013] 3 All SA 404 (SCA) at para 35. See also Naidoo v Minister of Police and Others [2015] 4 All SA 609 (SCA) at para 30; Minister of Safety and Security v Slabbert [2010] 2 All SA 474 (SCA) at para 11; Smith v Kit Kat Group (Pty) Ltd (2017) 38 ILJ 483 (LC) at para 67.[46] Section 189A(8) reads: If a facilitator is not appointed- (a) a party may not refer a dispute to a council or the Commission unless a period of 30 days has lapsed from the date on which notice was given in terms of section 189 (3); and (b)once the periods mentioned in section 64 (1) (a) have elapsed- (i) the employer may give notice to terminate the contracts of employment in accordance with section 37 (1) of the Basic Conditions of Employment Act [47] (2015) 36 ILJ 1469 (LAC).[48] (supra) footnote 28.[49] See Revan Civil Engineering Contractors and Others v National Union of Mineworkers and Others (2012) 33 ILJ 1846 (LAC); De Beers Group Services (Pty) Ltd v National Union of Mineworkers (2011) 32 ILJ 1293 (LAC). Both these judgments have now been overturned.[50] (supra) at para 136.[51] Id at para 186.[52] Id at para 135.[53] These are, in terms of Section 189(2): (a) appropriate measures- (i) to avoid the dismissals; (ii) to minimise the number of dismissals; (iii) to change the timing of the dismissals; and (iv) to mitigate the adverse effects of the dismissals; (b) the method for selecting the employees to be dismissed; and (c) the severance pay for dismissed employees.[54] (2017) 38 ILJ 360 (LC) at para 43. See also National Union of Mineworkers v Anglo American Platinum Ltd and Another (2014) 35 ILJ 1024 (LC) at para 25; Retail and Associated Workers Union of SA v Schuurman Metal Pressing (Pty) Ltd (2004) 25 ILJ 2376 (LC) at para 32; Old Mutual (supra) at para 13; Banks (supra) at para 15. procedural fairness JA56/2016 Woolworths (Pty) Ltd v SACCAWU and Others (JA56/2016) [2017] ZALAC 54; [2017] 12 BLLR 1217 (LAC); (2018) 39 ILJ 222 (LAC) (19 September 2017) Held that the distinction between procedural and substantive fairness lies close together. Insurance & Banking Staff Association and Another v Old Mutual Services & Technology Administration and Another (2006) 27 ILJ 1026 (LC). The overriding consideration under s 189A is to correct and prevent procedurally unfair retrenchments as soon as procedural flaws are detected, so that job losses can be avoided. Correcting a procedurally flawed mass retrenchment long after the process has been completed is often economically prohibitive and practically impossible.... So, the key elements of s 189A are: early expedited, effective intervention and job retention in mass dismissals.[16] 23] It was probably an issue related to substantive fairness of the dismissal to the extent that the Court a quo took the view that the termination of the affected employees services was a fait accompli and that Woolworths conduct during the s189A phase was consistent with its decision to dismiss the 44 full-timers. This must then be evaluated against the two concessions made: Firstly, the need to restructure the business. Secondly, that the affected employees would work flexi-time. The only substantive issue was whether it was fair to dismiss the full-time employees who would work flexi-time but only at full-time rates save for the concession in the unions final proposal. [35] The question whether the dismissals of the 44 full-timers were substantively fair must be answered within the parameters set by s189A. It is the general consensus of writers on this subject that the test for the fairness of a retrenchment where s189A applies differs from that applicable to retrenchments to which the section does not apply. See South African Labour Law, Jutastat e-publications, Clive Thompson and Paul Benjamin at RS 66, 2016 AA1-p518 under The broad section 189A formula where the following is said: Larger-scale retrenchments are governed by both sections, with s 189A representing the extra and commanding layer. Smaller-scale retrenchments are governed by s189 only, with a necessarily arbitrary set of numbers determining which workplaces are to be governed by which bundle of rights and obligations. Different consultation processes with different times limits apply, and the test for fairness varies as well. substantive fairness JA56/2016 Woolworths (Pty) Ltd v SACCAWU and Others (JA56/2016) [2017] ZALAC 54; [2017] 12 BLLR 1217 (LAC); (2018) 39 ILJ 222 (LAC) (19 September 2017) employers economic, technological, structural or similar needs. Held that the dismissal of a full-time employee who would not work flexi-time would be a dismissal to give effect to a requirement based on the employers economic, technological, structural or similar needs. NUM and Another v Black Mountain Mining (Pty) Ltd (CA22/2012) [2014] ZALAC 78 (10 December 2014) at para 37. It does not follow that just because an employer dismisses an employee due to its economical, technological, structural or similar need that the [Section 189A(i)] precondition has been met. An employer must first establish on a balance of probabilities that the dismissal of the employee contributed in a meaningful way to the realisation of that need. In our view, dismissals for operational requirements must be a measure of last resort, or at least fair under all of the circumstances. A dismissal can only be operationally justifiable on rational grounds if the dismissal is suitably linked to the achievement of the end goal for rational reasons. The selection of an employee for retrenchment can only be fair if regard is had to the employees personal circumstances and the effect that the dismissal will have on him or her compared to the benefit to the employer. This takes into account the principles that dismissal for an employee constitutes the proverbial death sentence. SA Clothing & Textile Workers Union and Others v Discreto - A Division of Trump and Springbok Holdings (1998) 19 ILJ 1451 (LAC). .It is important to note that when determining the rationality of the employers ultimate decision on retrenchment, it is not the courts function to decide whether it was the best decision under the circumstances, but only whether it was a rational, commercial or operational decision [40] The question, whether the dismissal was operationally justifiable on rational grounds A Clothing & Textile Workers Union and Others v Discreto A Division of Trump & Springbok Holdings (1998) 19 ILJ 1451 (LAC) (Discreto) For the employee fairness is found in the requirement of consultation prior to a final decision on retrenchment. This requirement is essentially a formal or procedural one, but, as is the case in most requirements of this nature, it has a substantive purpose. That purpose is to ensure that the ultimate decision on retrenchment is properly and genuinely justifiable by operational requirements or, put another way, by a commercial or business rationale. The function of a court in scrutinising the consultation process is not to second-guess the commercial or business efficacy of the employers ultimate decision (an issue on which it is, generally, not qualified to pronounce upon), but to pass judgment on whether the ultimate decision arrived at was genuine and not merely a sham (the kind of issue which courts are called upon to do in different settings, every day). The manner in which the court adjudges the latter issue is to enquire whether the legal requirements for a proper consultation process has been followed and, if so, whether the ultimate decision arrived at by the employer is operationally and commercially justifiable on rational grounds, having regard to what emerged from the consultation process. It is important to note that when determining the rationality of the employers ultimate decision on retrenchment, it is not the courts function to decide whether it was the best decision under the circumstances, but only whether it was a rational commercial or operational decision, properly taking into account what emerged during the consultation process.[23] selection criteria: LIFO JA100/2015 United National Breweries v Ngqimbana (JA100/2015) [2017] ZALAC 76 (30 November 2017) The last in, first out (LIFO) rule is an acceptable neutral selection criterion. However, at the same time that the employer is reducing its staff, it must maintain its business and fairness recognises that the employer may depart from LIFO and retain the skills of experienced employees, even though they may have shorter service than other employees. S189A explained JA125/2017 Edcon Ltd v Steenkamp and Others (JA125/2017) [2017] ZALAC 81; [2018] 3 BLLR 230 (LAC); (2018) 39 ILJ 531 (LAC) (18 December 2017) The remedies are designed to be available when an aggrieved applicant brings the application by not later than 30 days after the notification of the possible retrenchment, and thus, 30 days before a dismissal notice may be given. The primary purpose is to get the retrenchment process back onto a track that is fair. Remedies (a) and (b) plainly are appropriate before a dismissal is effected. Remedy (c) is aimed at not only reversing a dismissal, but obligating the employer in future to comply with fairness during an implicitly resumed process, which implies timeous proximity to the dismissals. Remedy (d) is plainly contingent on remedies (a) (b) or (c) being inappropriate in given circumstances; it is thus subordinated to the first three options, and cannot be read disjunctively from the rest. Were it appropriate to separate remedy (d) from the rest, the effect of the section would be to totally contradict section 189A(18). Such an interpretation cannot therefore be sustained, and it is not open to a party to seek primary relief in terms of section 189A(13) (d). The function of section 189A(13)(d) is a residual power, if the given circumstances make the first three remedies inappropriate.[25] In summary, Section189A (13) is a procedure designed to enable the Labour Court to urgently intervene in a large-scale retrenchment to ensure that fair procedure is followed. It is not designed to offer a platform for ex post de facto adjudication of unfair procedure disputes. Although a failure to comply with the 30-day period can be condoned, the merits of any condonation application must be understood within the context of an urgent intervention, that being the critical functional characteristic of an application in terms of section 189A(13).[26] Moreover, the intervention contemplated, by its nature does not contemplate a trial at some future remote time. It exists not to facilitate a post mortem but, rather, to oversee the process of retrenchment while it is taking place or shortly thereafter where precipitate dismissals make intervention before actual dismissal impossible, and to reverse the dismissals.[15] Remedy (d) is a last resort back up to cater only for the inappropriateness of remedies (a) (b) or (c). Constructive dismissal JR33/15 Johnson v Rajah NO and Others (JR33/15) [2017] ZALCJHB 25 (26 January 2017) Test is correctness and not reasonableness [4]The question in constructive dismissal cases is whether there was a dismissal or not. This has to be determined before an enquiry into the fairness thereof could happen. The question whether a dismissal had taken place, goes to jurisdiction and this Court as well as the Labour Appeal Court confirmed on numerous occasions that the review test as laid down in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[1]does not find application in reviewing a jurisdictional ruling[2]. [19]I re-iterate: reasonableness has no place in a review such as this one and the grounds for review related to reasonableness cannot be considered. I will consider this application only on the basis whether the arbitrator was correct to find that the Applicant was not constructively dismissed and whether he erroneously found that she should have filed a formal grievance. General Food Industries Ltd t/a Blue Ribbon Bakeries v Food & Allied Workers Union and Others (2004) 25 ILJ 1655 (LAC) at 1668 para 37. [37] Another reason which the court a quo gave for its finding that the dismissal was substantively unfair was that the appellant had failed to discharge the onus of proving that in selecting the second and further respondents for dismissal, it had applied selection criteria that are fair and objective as required by s 189(7)(b) of the Act which applies when no agreement has been reached on the selection criteria to be used. The appellant did not lead any evidence at the trial as to the skills which the employees had who had shorter service periods than the second and further respondents but were retained. The appellant bore the onus to prove that the selection criteria that were applied to select the second and further respondents for dismissal were objective and fair. Both during the consultation and at trial the respondents challenged the appellant to say what skills it was relying upon and the appellant's witnesses never explained these. In these circumstances one finds oneself in a position where one looks at the list of employees who were selected for retrenchment, namely, the second and further respondents and looks at the list of those employees in exhibit B who were retained and who had shorter service periods than the second and further respondents and asks the question: what skills did those who were retained and who had shorter service periods than the second and further respondents have which the second and further respondents did not have? The answer is that on the evidence in this case one simply does not know. In the light of this can it be said that the appellant discharged the onus to prove that the selection criteria applied to select the second and further respondents were fair and objective? The answer is, in my judgment, a clear and unequivocal no. In that event was the court a quo's finding that the dismissal was substantively unfair right? In my judgment, without any doubt! alternative position CA16/2016, C285/2014 South African Breweries (Pty) Ltd v Louw (CA16/2016, C285/2014) [2017] ZALAC 63; [2018] 1 BLLR 26 (LAC); (2018) 39 ILJ 189 (LAC) (24 October 2017) [26] To move to the impact of this issue on the substantive fairness contention, the so-called unfair selection criteria issue could have had no bearing at all on the failure to be appointed to the Aliwal North Area Manager post. Louw never applied for that post, despite an invitation to do so. The premise of the judgment a quo is that he should have been given it without competing. That finding is without foundation on the facts or on the law. If Louw applied for the George area manager post, he had no good reason not to apply for the Aliwal North post if he wanted the post. The evidence discloses that he declined the prospect of taking up the Aliwal North post by failing to apply for it. Moreover, as already addressed, a competitive process to seek to avoid retrenchment is not unfair. Retrenchment/ Misconduct: fiat accompli. JS1027/15 Van Dyk v Zeda Car Leasing (Pty) Ltd t/a Avis Fleet (JS1027/15) [2018] ZALCJHB 19 (25 January 2018) Johnson & Johnson v Chemical Industrial Workers Union(1999) 20ILJ89 (LAC) quoted with approval in SASBO supra. [51] Overall, no meaningful joint consensus-seeking process occurred and Avis is the culprit. Avis failed to sufficiently consult on alternatives to retrenchment and selection criteria; and failed to accommodate Ms Van Dyk in an alternative position. I am persuaded that Ms Van Dyk was indeed presented with a fiat accompli. For these reason, her dismissal was procedurally unfair. Section 189A(19) JS548/16 National Union of Metalworkers Union of South Africa and Another v Assmang Machadodorp Chrome Works (Pty) Ltd (JS548/16) [2018] ZALCJHB 93 (6 March 2018) [10] To conclude then, the applicants dismally failed to make out a case of substantive unfairness in respect of the dismissal of Phakhathi on account of Assmangs operational requirements. Once the dismissal was not challenged on any of the grounds restated in Woolworths, there was no basis in law or fact, for the applicants to approach this court with this claim, and they should have known better. Woolworths (PTY) Ltd v SACCAWU and Others [2017] 12 BLLR 1217 (LAC); (2018) 39 ILJ 222 (LAC) at para [35] test for substantive fairness in operational requirements dismissal disputes as follows; It is the general consensus of writers on this subject that the test for the fairness of a retrenchment where s189A applies differs from that applicable to retrenchments to which the section does not apply. We agree with this view. Section 189A(19) which is worded in peremptory terms provided that in any dispute referred to the Labour Court in terms of s191(5)(b)(ii), concerning the dismissal of this category of employees, the Labour Court must find that the employee was dismissed for a fair reason if four grounds are satisfied namely:(a) the dismissal was to give effect to a requirement based on the employers economic, technological, structural or similar needs;(b) the dismissal was operationally justifiable on rational grounds;(c) there was a proper consideration of alternatives; and(d) selection criteria were fair and objective. It is trite that the onus of proving this rests upon the employer LAC test JA118/13 Mahlakoane v South African Revenue Service (JA118/13) [2018] ZALAC 1 (25 January 2018) [24] The test on review is not whether the Commissioner was right or wrong, but whether, as laid down by the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd and Another (Sidumo) [3]and by this Court in Gold fields Mining SA (Pty) Ltd v CCMA and Others,[4]the decision made by the Commissioner is one that a reasonable decision-maker could not have made. It is also a trite principle, subsequently restated by this Court and other courts, that if the Commissioner misconstrues the nature of the inquiry and that has an impact on the outcome of the arbitration, it would constitute a reviewable irregularity. issues relevant JA118/13 Mahlakoane v South African Revenue Service (JA118/13) [2018] ZALAC 1 (25 January 2018) CUSA v Tao Ying Metal Industries and Others2009 (2) SA 204 (CC). Subject to what is stated in the following paragraphs, the role of the reviewing court is limited to deciding issues that are raised in the review proceedings. It may not on its own raise issues which were not raised by the party who seeks to review an arbitral award. Representative: Majoritarianism in order to facilitate orderly collective bargaining JA23/2017 Association of Mineworkers and Construction Union (AMCU) and Others v Royal Bafokeng Platinum Limited and Others (JA23/2017) [2018] ZALAC 27; [2018] 11 BLLR 1075 (LAC); (2018) 39 ILJ 2205 (LAC) (26 June 2018) the Legislature had made a policy choice of Majoritarianism in order to facilitate orderly collective bargaining, minimise union rivalry and to foster democratisation of the workplace by avoiding a multiplicity of consulting parties, a proliferation of unions and industrial discontent- section 189 of the LRA is also a manifestation of the policy choice that the legislature made. This policy choice in favour of majoritarianism is no doubt based on the fact that retrenchments are usually collective in nature. Section 189 recognises that the interests of the employees are best served by the most representative entity at the workplace. The entity shall have obtained its seat at the consultation table based on its statistical dominance at the workplace. Having obtained its statistical dominance and entered into a collective agreement with the employer as the exclusive representative of the employees, consultation is more practical and less cumbersome than a multiplicity of consultations with each and every employee at the workplace. fait accompli JA140/17 South African Commercial Catering and Allied Workers Union and Others v JDG Trading (Proprietary) Limited (JA140/17) [2018] ZALAC 38 (17 October 2018) [29] JDGs conduct belies any description of the process as a fait accompli. The most probable inference to be drawn regarding the resolution is that JDG had merely formed a prima facie view on the likelihood of retrenchments. An employer in such situations invariably will form a prima facie view on the need for retrenchments. Visser v Atronic International Bmgh [2009] ZALC 76. the final decision, subsequent consultation was a sham and dismissal was a fait accompli It further refers to the fact that the number of staff, in light of the aforesaid, must be reduced...It concluded that the words must further reduce store staff members in the resolution could be read in the light of the surrounding circumstances as may have to reduce store staff members. The wording of the resolution did not mean that the decision to dismiss was a fait accompli. It, therefore, dismissed the application but made no order as to costs. Du Toit et al Labour Law Through the Cases LexisNexis, LRA Chapter 8, Commentary on s189(1). October 2017 update. It would therefore seem that the weight of authority has shifted from a broader to a narrower interpretation of the term contemplates. Having initially accepted that contemplation of dismissal as one of various options was sufficient to trigger the employers duty to consult, the courts now appear to take the view that, for purposes of section 189, contemplates refers to dismissal as the preferred or most likely option from the employers point of view rather than a mere possibility. It follows that the employer is entitled to go through a process of weighing up various alternatives before dismissal can be said to be contemplated. However, the employer may not embark on consultation with a closed mind but must be willing to seriously consider any further alternatives to dismissal that may emerge in the process. consulting party: minority union J1968/18 National Union of Metalworkers of South Africa and Others v Anglo Gold Ashanti Limited and Another (J1968/18) [2018] ZALCJHB 437 (28 June 2018) [32] It is apparent that the current matter is distinguishable from Aunde 2011] 10 BLLR 945 (LAC);(2011) 32 ILJ 2617 (LAC) on facts. In Aunde, the appellant excluded the respondent, NUMSA, from consultations on the basis that NUMSA was no longer a union whose members formed the majority of the employees. As such it contended that it had no obligation to consult NUMSA in relation to the retrenchment exercise. [37] The fact that the body that AngloGold is consulting with over the current retrenchment includes further nominees and is facilitated by the CCMA is of no consequence. Section 189A(3) provides for the appointment of a CCMA commissioner to facilitate the retrenchment process and although AngloGold is not obligated in law to consult with any other person, it may do so. As such, AngloGold is under no obligation to consult with NUMSA. 189A-substantive fairness, selection criteria JS 426/11 Gare v T-System South Africa (Pty) Ltd and Another (JS 426/11) [2018] ZALCJHB 381 (3 September 2018) SA Clothing and Textile Workers Union and Others v Discreto - A Division of Trump and Springbok Holdings SACTWU and Others v Discreto (A Division of Trump and Springbok Holdings) [1998] 12 BLLR 1228 (LAC) at para 8; see also BMD Knitting Mills (Pty) Ltd v SACTWU [2001] 7 BLLR 705 (LAC) at para 19; CWIU and Others v Algrorax (Pty) Ltd [2003] 11 BLLR 1081 (LAC) at paras 69 70. For the employee fairness is found in the requirement of consultation prior to a final decision on retrenchment. This requirement is essentially a formal or procedural one, but, as is the case in most requirements of this nature, it has a substantive purpose. That purpose is to ensure that the ultimate decision on retrenchment is properly and genuinely justifiable by operational requirements or, put another way, by a commercial or business rationale. The function of a court in scrutinising the consultation process is not to second-guess the commercial or business efficacy of the employers ultimate decision (an issue on which it is, generally, not qualified to pronounce upon), but to pass judgment on whether the ultimate decision arrived at was genuine and not merely a sham (the kind of issue which courts are called upon to do in different settings, every day). The manner in which the court adjudges the latter issue is to enquire whether the legal requirements for a proper consultation process has been followed and, if so, whether the ultimate decision arrived at by the employer is operationally and commercially justifiable on rational grounds, having regard to what emerged from the consultation process. (Emphasis added) [19] Also, Ms Gare asserts that she had been confronted with a fait accompli, defined as when an employer takes unilateral action which forecloses the prospect of meaningful consultation on one or more of the issues in respect of which it ought to consult.[3] In my view, a fait accompli challenge is unsustainable in the contexts of a section 189A retrenchment. Instead of waiting for the process to conclude and cry foul later, section 189A(13) provides a swift remedy for any procedural indiscretions during the consultation and before the retrenchment is effected. [20] With regard to the selection criteria, Ms Gare is challenging the objectivity thereof. She testified that LIFO should have been applied and her colleague, Mr Codowell, ought to have been selected as he had less years of service. Mr Wilson, on the other hand, testified that TSSA applied excellent fit criteria which entailed appointing the most suitable candidate for the position. Substantive fairness: may not dismiss an employee for operational requirements when such employer has a vacant position JS874/16 Solidarity obo De Klerk v South African State Theatre (JS874/16) [2018] ZALCJHB 296 (20 September 2018) South African Airways v Bogopa and Others [2008] ZALC 43; (2007) 11 BLLR 1065 (LAC) at para 60. The question, which arises, is what the obligation of an employer is in relation to the dismissal of employees for operational requirements when it does away with an old structure and adopt a new structure (for operational requirements). An employer has an obligation to try and avoid the dismissal of an employee for operational requirements. This obligation entails that an employer may not dismiss an employee for operational requirements when such employer has a vacant position, the duties of which the employee concerned can perform with or without at least minimal training. Where the employer has a vacancy and the employee can perform the duties attached to that vacancy, the employer would be acting unfairly in dismissing the employee without offering the employee such a position and the employee, having accepted the offer, fails to perform the duties attached to that position satisfactorily, the employer can deal with the case as a case of poor performance. (footnotes omitted) [56] The Respondent dismally failed to show that a tertiary qualification was a requirement for the position of payroll administrator or payroll clerk and that the fact that the Applicant did not possess such a qualification, was a fair reason to retrench her. Substantive fairness: selection criteria JS874/16 Solidarity obo De Klerk v South African State Theatre (JS874/16) [2018] ZALCJHB 296 (20 September 2018) [67] The LRA places primacy on an agreed method of selection and in Nylin Colin van Staden the Court emphasized that an employer must double its efforts during a consultation process to reach an agreement on the selection criteria and failure to do so, simply means that an employer invites the courts scrutiny on the method it employs. [67] The LRA places primacy on an agreed method of selection and in Nylin Colin van Staden the Court emphasized that an employer must double its efforts during a consultation process to reach an agreement on the selection criteria and failure to do so, simply means that an employer invites the courts scrutiny on the method it employs. Nylin Colin van Staden and 13 Others v Telkom SA (SOC) Limited Unreported case number JS 95/15, handed down on 11 May 2018. distinction between procedural and substantive fairness JS829/15 Muller v Landelahni (JS829/15) [2018] ZALCJHB 331 (11 October 2018) [18] In instances where an employer dismisses an employee due to its operational requirements, the provisions of section 188(1) read together with those of section 192(2) of the LRA obliges the employer to prove that the reason for the dismissal was substantively and procedurally fair. It has been held that the distinction between procedural and substantive fairness in dismissals based on operational requirements are close together, as procedural unfairness may result in substantive unfairness Woolworths (Pty) Ltd v SACCAWU and Others [2017] 12 BLLR 1217 (LAC); (2018) 39 ILJ 222 (LAC) at para [22]; See also Ndlela v SITA Information Networking Computing BV (2014) 35 ILJ 2236 (LC) where it was stated that; 44. Although as a matter or practice, we tend to separate process from substance, there are no bright lines distinguishing process from substance in the area of dismissals for operational requirements. The procedure mandated by section 189 has a substantive purpose. Its purpose is to save jobs. This is done by considering alternative means by which the operational problem identified by the employer can be addressed without resorting to dismissals. In a case such as the present, where the proffered substantive justification is the need to reduce operating costs, the issue to be discussed at the consultations is whether there are no other areas of the employers business where the costs can be reduced without affecting employment security. 45. The purpose behind the need to discuss the selection criterion and to implement a fair selection criterion is also the avoidance of loss of employment. If the job or position cannot be saved, then the focus shifts to other means of mitigating the adverse effects of dismissal. fait accompli JS602/13 Banks v UIS Analytical Services (Pty) Ltd (JS602/13) [2018] ZALCJHB 341 (12 October 2018) SASBO v Standard Bank of SA [2011] JOL 26928 (LC) at para 36 It is trite law that when employees are confronted with a fait accompli any subsequent consultations may be fatally flawed. A fait accompli in the context of retrenchments manifests itself typically when an employer takes unilateral action which forecloses the prospect of meaningful consultation on one or more of the issues in respect of which it ought to consult. Under such conditions a party that is asked to consult where the employer has taken such action may rightly cry "foul". (Emphasis added) test to evaluate the substantive fairness JS1052/16 Kgwedi v Bidvest Protea Coin (Pty) Ltd (JS1052/16) [2018] ZALCJHB 425; [2019] 6 BLLR 562 (LC) (18 December 2018) Haveman v Secequip (Pty) Ltd A fair reason is one that is bona fide and rationally justified, informed by a proper and valid commercial or business rationale. The enquiry is not whether the reason put up is one which would have been chosen by the court but whether the reason advanced considered objectively is fair. Substantive fairness and selection criteria J 1483/17 Sampson v Truvelo Manufacturers (Pty) Ltd (J 1483/17) [2019] ZALCJHB 81 (18 April 2019) [18] In the present case, the respondent failed to meet the above threshold. It failed to prove that the applicants retrenchment was operationally justifiable on rational grounds. Therefore, the dismissal of the applicant is substantively unfair. South African Commercial, Catering and Allied Workers Union and Others v Woolworths (Pty) Limited,[(CCT275/17) [2018] ZACC 44 at para 25] the test set out in SA Clothing and Textile Workers Union and Others v Discreto - A Division of Trump and Springbok Holdings[SACTWU and Others v Discreto (A Division of Trump and Springbok Holdings) [1998] 12 BLLR 1228 (LAC) at para 8; see also BMD Knitting Mills (Pty) Ltd v SACTWU [2001] 7 BLLR 705 (LAC) at para 19; CWIU and Others v Algrorax (Pty) Ltd [2003] 11 BLLR 1081 (LAC) at paras 69 70.] was endorsed. In Discreto, the Labour Appeal Court (LAC) held as follows: issues often proceed in tandem, so that selection criteria might be discussed even though parties have not yet agreed on the need or extent of any retrenchments JS211/17 National Union of Metalworkers of South Africa and Others v Bravo Span 119 CC (JS211/17) [2019] ZALCJHB 184 (30 July 2019) Association of Mineworkers and Construction Union (AMCU) and Others v Shanduka Coal (Pty) Ltd [2013] JOL 29787 (LC) at paras 29 to 28. [27] It is well established that the consultation process envisaged under section 189 is intended to be a joint goal orientated problem solving process. It is one in which the parties ought to try and reach a common understanding on the need for and extent of any retrenchments. In examining the need for retrenchment the parties must, as a matter of logic, and in terms of sections 189(2)(a)(i) and (ii), explore if there are ways of addressing the operational need without shedding jobs, or at least by minimising job losses. If job losses cannot reasonably be avoided there is a need to look at what can be done to ameliorate the position of those who will be affected and how they will be selected for retrenchment. Ideally, the logical progression of discussions would follow the sequence of issues set out in section 189(2). However, discussion on these issues often proceed in tandem, so that selection criteria might be discussed even though parties have not yet agreed on the need or extent of any retrenchments. Nothing prevents this happening but to avoid misunderstandings parties would be well advised at each round of consultations to review what has been agreed, what is still unresolved but requiring further consultation, and what is unresolved but where neither party has anything new to suggest which might break the impasse on an issue.[28] Because it is supposed to be a problem solving process, the process is not advanced if it consists of mechanically running through a checklist of items without any engagement between the parties. Likewise, the process is not advanced if obstacles are constantly placed in the way of consultation on the substantive issues taking place. (Emphasis added) Section 189A: order J1754/19 Sasbo-The Finance Union obo Madiba v Nedbank Group Limited (J1754/19) [2019] ZALCJHB 263 (4 October 2019) Order 1. The requirements of rule 8 of the rules of this Court are hereby dispensed with, and the application is treated as urgent; 2. The respondent acted in a procedurally unfair manner when it proceeded to issue Mr Modibane with the letter dated 26 July 2019, without issuing a written notice in terms of section 189 (3) of the LRA, inviting the applicant to consult on the information recorded therein; 3. The respondent acted in a procedurally unfair manner when it proceeded to issue Mr Modibane with the letter dated 26 July 2019, without issuing a written notice prescribed in the Nedbank Retrenchment Policy; 4. The respondent acted in a procedurally unfair manner by failing to appoint a facilitator as prescribed by the Nedbank Retrenchment policy; 5. The respondent must comply with the prescribed 60 days period, as recorded in the Nedbank Retrenchment Policy; and more particularly, that the 60 day period shall commence on the issue of a section 189 (3) notice to the applicant/ Mr Modibane; alternatively that the Respondent comply with 60 day period as prescribed by section 189A of the LRA; 6. The respondent is ordered to initiate and then continue with a meaningful joint consensus seeking process as envisaged by sections 189 and 189A of the LRA; Section 189A J2011/19 SASBO The Finance Union obo Fourie v Nedbank Limited (J2011/19) [2019] ZALCJHB 317; (2020) 41 ILJ 500 (LC) (28 October 2019) [10] The purpose of s 189A has been referred to in a number of judgments. In short, the introduction of s 189A sought to enhance the effectiveness of consultation in larger scale retrenchments, amongst other things by the introduction of the option of facilitation at an early stage, an option that may be elected by the employer in the s 189(3) notice, or by affected employees or their representatives within 15 days of the date of the s 189 (3) notice. The appointment of a facilitator suspends the employers right to dismiss for a period of 60 days, calculated from the date on which the s 189 (3) notice is issued. If a facilitator is not appointed, the employers right to dismiss is similarly subject to the expiry of specified time periods, calculated from the date of the s 189 (3) notice. If notice of termination is given, employees have the option to exercise the right to strike over the substantive fairness of their dismissals, or to refer a dispute about substantive fairness to arbitration or adjudication (but not both). This is particularly so in respect of s 189 (3), where so much of what follows is regulated by reference to the baseline set by the date on which the notice is issued. For all of these reasons, the requirement to issue a notice in terms of s 189 (3) is peremptory, the banks failure to issue the notice is procedurally unfair. 1. The respondents failure to issue a notice in terms of s 189 (3) constitutes procedural unfairness. 2. The applicants notice of termination of employment, given on 3 October 2019, is set aside. 3. The respondent is directed, should it wish to proceed with a consultation process in respect of any dismissal for operational requirements in its client support division, to issue a notice in terms of s 189(3) and to comply with the applicable provisions of s 189 and s 189A. quantum: procedural unfairness: employer to pay a penalty in the form of a solatium JA53/18 Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk (JA53/18) [2020] ZALAC 4; [2020] 6 BLLR 549 (LAC); (2020) 41 ILJ 1360 (LAC) (11 February 2020) determination of the quantum of compensation requires the court to apply a discretion taking into account the employees length of service- the anxiety suffered by the employee as a result of the employers action and the extent of the deviation from the procedure. [50] The requirement that an award of compensation be just and equitable in all the circumstances envisages that the Labour Court will be informed about all the circumstances which may bear upon justice and equity.[6] The starting point should be the injustice and harm suffered by the employee and the conduct of the parties. Equity requires proper consideration of the interests of both parties. When the dismissal is unfair only on account of procedural unfairness, the patrimonial loss of the employee is irrelevant. In such instances, the award of compensation is intended to be a solatium. The compensation for the wrong in failing to give effect to an employees right to fair procedure is not based on patrimonial or actual loss. It is in the nature of a solatium for the loss of the right, and is punitive to the extent that an employer (who breached the right) must pay a penalty for causing that loss. In the normal course a legal wrong done by one person to another deserves some form of redress. Alpha Plant and Services (Pty) Ltd v Simmonds and others [2001] 3 BLLR 261 (LAC) paras 107-116 and 128; and Lorentzen v Sanachem (Pty) Ltd [1998] 8 BLLR 814 (LC) para 32. Herbstein and Van Winsen: The Civil Practice of the High Courts of South Africa (5th Ed) 1255. [52] Awards of compensation, like awards of damages in civil matters, are by their nature matters of estimation and discretion, and hence appellate courts should hesitate to interfere with such awards which are necessarily somewhat rough and ready. Road Accident Fund v Guedes 2006 (5) SA 583 (SCA) 586-587. [52]...An appellate court should not simply substitute its own award for that of the trial court. However, an appellate court will interfere where there has been an irregularity or misdirection such as considering irrelevant facts or ignoring relevant ones; or where the decision was based on totally inadequate facts resulting in there being no sound or reasonable basis for the award. Where there is a substantial variation or a striking disparity between the award made by the trial court and the award that the appeal court considers ought to have been made on its own assessment, the award will be unreasonable and the appeal court is entitled and obliged to interfere. selection criteria JA53/18 Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk (JA53/18) [2020] ZALAC 4; [2020] 6 BLLR 549 (LAC); (2020) 41 ILJ 1360 (LAC) (11 February 2020) [44] Moreover, and most importantly, there was no proper consultation about the method for selecting which employee would take the new position and which would be dismissed. Avis invited the employees to apply for the new post and imposed the deadline of 25 September 2015 without identifying the criteria of selection. The requirement that employees compete for a post is not in itself a method of selecting for dismissal.[5] More is required. The competition for the post must proceed in accordance with identified criteria of selection. A fair selection method must be chosen to decide who is to stay and who is to go. In the present instance, it was not clear which criteria, (such as skills, qualifications, experience, length of service, productivity, seniority, disciplinary record and the like), would be applied and no effort or attempt was made to engage with the employees to identify, agree and rank such criteria. Before business rescue plan was in place JA32/2020 South African Airways (SOC) Limited (In Business Rescue) and Others v National Union of Metalworkers of South Africa obo Members and Others (JA32/2020) [2020] ZALAC 34; [2020] 8 BLLR 756 (LAC); (2020) 41 ILJ 2113 (LAC) (9 July 2020) [32] Section 150 makes it plain that the lawmaker intended that the rescue plan must precede any retrenchment and puts paid to any suggestion that the retrenchment process may commence without the plan. section 189A (13) J142/20 National Association of South African Workers (NASA-Workers) and Another v Uniliver South Africa (Pty) Ltd (J142/20) [2020] ZALCJHB 35; (2020) 41 ILJ 1399 (LC) (14 February 2020) The purpose of section 189A (13) is to ensure judicial management of the process with the sole purpose to ensure job security. Where job security is not threatened, there is no need for a court to judicial manage the process. section 189A (13) J149/20 National Union of Metalworkers of South Africa (NUMSA) obo Members and Another v South African Airways (SOC) Ltd and Others (J149/20) [2020] ZALCJHB 43; [2020] 6 BLLR 588 (LC); (2020) 41 ILJ 1402 (LC) (14 February 2020) a dismissal was not contemplated and the duty to consult did not arise. The procedure contemplated in section 189A (13) of the LRA is unavailable to the applicant. There is no basis to declare any action to be unlawful and to issue an injunction. section 189A (13) J203/2020 South African Communication Union and Another v Telkom SA SOC Ltd (J203/2020) [2020] ZALCJHB 56; (2020) 41 ILJ 1425 (LC) (5 March 2020) [27] The court is being asked to intervene under the provisions of s 189A(13)(a), which states189(13) If an employer does not comply with a fair procedure, a consulting party may approach the Labour Court by way of an application for an order -(a) compelling the employer to comply with a fair procedure; [28] In Edcon v Steenkamp the Labour Appeal Court characterised the purpose of section 189A(13) thus:[25] In summary, section 189A(13) is a procedure designed to enable the Labour Court to urgently intervene in a large-scale retrenchment to ensure that fair procedure is followed. It is not designed to offer a platform for ex post de facto adjudication of unfair procedure disputes. Although a failure to comply with the 30-day period can be condoned, the merits of any condonation application must be understood within the context of an urgent intervention, that being the critical functional characteristic of an application in terms of section 189A(13).[26] Moreover, the intervention contemplated, by its nature does not contemplate a trial at some future remote time. It exists not to facilitate a post mortem but, rather, to oversee the process of retrenchment while it is taking place or shortly thereafter where precipitate dismissals make intervention before actual dismissal impossible, and to reverse the dismissals. In National Union of Metalworkers of South Africa (NUMSA) obo Members v Toyota South Africa Motors (Pty) Ltd[(2017) 38 ILJ 1162 (LC)] Cele J held: The section 189A (13) remedy was clearly designed to correct a derailment of consultations in a consensus seeking process prescribed by SectionSACU89 and 189A of the Act.[3] [30] Lastly, in RAWUSA v Schuurman Metal Pressing (Pty) Ltd[[2005] 1 BLLR 78 (LC)], Murphy AJ, as he then was, held:[32](T)he aim of section 189A(13) (Act 66 of 1995) is to provide a remedy to employees to approach the Labour Court to set their employer on the right track where there is a genuine and clear cut procedural unfairness which goes to the core of the process. The section is aimed at securing the process in the interests of a fair outcome. It follows that not every minor transgression of a procedural nature will invite the benefit of the courts discretionary power to grant a remedy. To hold otherwise would be to open the door to excessive litigation, abuse and unnecessary delay in the process of consultation. Section 189A(13) is aimed at unjustifiable intransigence, it is not available as a tool to thwart a retrenchment process where the process, as in the present case, is otherwise capable of being rescued by genuine efforts to cure such flaws as may exist. [31] Various dicta of the labour court have also elaborated on the extent and manner in which the court might intervene in procedurally unfair retrenchment processes. In AMCU and others v Sibanye Gold Ltd t/a Sibanye Stillwater and others[[2019] 8 BLLR 802 (LC)] Van Niekerk J stated that there were limits on the extent to which the court should intervene under SACU89A(13):[15] The preamble to section 189A(13) makes clear that the Courts intervention is limited to instances of a refusal or failure by the consulting employer to comply with a fair procedure. What the subsection seeks to accomplish, in the face of a prohibition on the right to strike over any dispute that concerns the procedural fairness of a retrenchment and the limitation on the right to refer a dispute of that nature to this Court for adjudication in terms of section 191, is to extend to this Court a real-time supervisory role over the consultation process, with powers to intervene if and when necessary, and to craft a remedy designed to address any procedural shortcoming that is found to exist. The section is not an invitation to consulting parties to use this Court to micro-manage a consultation process intervention ought to be limited to a substantial failure or refusal to comply with the relevant statutory requirements. [32] In SASBO v Standard Bank of South Africa[(2011) 32 ILJ 1236 (LC)] this court emphasised the importance of orders made under the section not being cast in wide terms:[29] The introduction of the 189A procedure has a short-term preventative aim of pro-actively fostering proper consultation, as opposed to a long term remedial one of compensating employees, following a belated post-mortem examination on what was wrong with the process, long after workers have been retrenched. For this reason, blanket orders which lack specificity about what the parties ought to do are of little value in my opinion and, as far as possible, orders made under section 189A(13) should be crafted to address the defects in the process. Section 189A (13) of the LRA application J435/20 Food and Allied Workers Union (FAWU) v South African Breweries (Pty) Ltd (SAB) and Another (J435/20) [2020] ZALCJHB 92; (2020) 41 ILJ 2652 (LC) (28 May 2020) where an employer offers to consult in a particular manner and the other consulting party refuses to consult in the proposed manner, completion of the process without the other consulting party does not amount to procedural unfairness. The power of the Labour Court is to judicially manage the process and not to dictate to the consulting parties. In the absence of identifiable procedural unfairness, this Court has no powers to intervene in the consultation process. Held: (1) The application is dismissed. Section 189A (13) of the LRA application J 606/20 Engelbrecht v Bachique 705 (Pty) Ltd t/a The New House of Busby (J 606/20) [2020] ZALCJHB 125; (2020) 41 ILJ 2641 (LC) (31 July 2020) [36] It is common cause that the respondent failed to consult despite the promise to do so. Notably, the respondent was mum about its decision to relocate the Distribution Centre despite having effected the processes the ultimately saw the relocation realised. I have also considered the fact that, if section 189A consultation was revived, with the assistance of the facilitator, it would have taken 60 days for the process to conclude; alternatively, for the respondent to issue a termination letter in terms of section 189A(7). Even without a facilitator, the respondent would have been obliged to engage for at least for a period of 30 days before issuing a termination letter. Thus, in my view, compensation equivalent to three months salary is just and equitable, i.e. R115 555.55 x 3 = 346 666,65 Section 189A: no consultation or facilitator J 683/2020 South African Transport and Allied Workers Union and Others v Ikapa Coaches ( A division of Cullinan Holdings Ltd) and Others (J 683/2020) [2020] ZALCJHB 148 (2 September 2020) [30] In the light of the above conclusions, taking into account the conduct of both parties since 12 May 2020 when the notice in terms of section 189(3) of the LRA was issued, and further taking into account the powers vested in this court under the provisions of section 189A(13) of the LRA, it is my view that an appropriate order would be to compel the parties to engage in a joint consensus seeking exercise, but within strict specific time frames. Selection criteria JA68/2018 Telkom SA SOC Limited v van Staden and Others (JA68/2018) [2020] ZALAC 52 (1 December 2020) [35] It follows that the placement of an employee into a post in a restructuring exercise is distinct from but related to the selection of an employee who has not been placed for retrenchment. As was made clear in South African Breweries (Pty) Ltd v Louw,[[2017] ZALAC 63; [2018] 1 BLLR 26 (LAC); (2018) 39 ILJ 189 (LAC).] the criteria for placement and selection criteria for retrenchment are different and the former is not converted into the latter where an employee is not placed.[28] In a competitive placement process the relative strengths and weaknesses of the different candidates are assessed,[29] particularly where more than one applicant seeks placement into a position.[30] Whereas, selection for retrenchment is undertaken through application of selection criteria which are either agreed or are, in terms of section 189(7), to be fair and objective.[31] [46] It follows for these reasons that the respondents were not shown to have been unfairly selected for retrenchment and that their dismissal on grounds of the employers operational requirements was not shown to be unfair. The appeal must therefore succeed and the finding of the Labour Court replaced with a finding to this effect. Having regard to considerations of law and fairness no costs order is warranted in this matter. if a vacancy is found JS 858/16 Blom v Goldfields Logistics (Pty) Ltd (JS 858/16) [2021] ZALCJHB 62 (18 May 2021) SAA v Bogopa and Others [2007] 11 BLLR 1065 (LAC) at para 60. [60] The question, which arises, is what the obligation of an employer is in relation to the dismissal of employees for operational requirements when it does away with an old structure and adopts a new structure (for operational requirements). An employer has an obligation to try and avoid the dismissal of an employee for operational requirements. This obligation entails that an employer may not dismiss an employee for operational requirements when such employer has a vacant position, the duties of which the employee concerned can perform with or without at least minimal training Where the employer has a vacancy and the employee can perform the duties attached to that vacancy, the employer would be acting unfairly in dismissing the employee without offering the employee such a position and the ensuing dismissal would be without a fair reason. Where however, the employer offers the employee such a vacant position and the employee, having accepted the offer, fails to perform the duties attached to that position satisfactorily, the employer can deal with the case as a case of poor performance. [My own underlining and emphasis] Oosthuizen v Telkom SA (2007) 28 ILJ 2531 (LAC). [19] The fact that the respondent did not place any evidence before the Court to explain why it did not give one of the positions to the appellant and gave positions to other employees means that the respondent has failed to justify the dismissal of the appellant. In other words, the respondent selected employees from the redeployment pool to remain in its employ by virtue of appointing them to certain positions and selected those to be retrenched by not appointing them to any vacant posts. The respondent was obliged to explain the basis of such selection criteria applied and should have complied with the Act. And that means that if such criteria have not been agreed, they should be fair and objective. In the end one is left in the dark as to why the appellant was in effect selected to be among those who did not get any of its available positions and had to be retrenched. Section 189A: Application: Urgency J587/2021 NEHAWU v Minister for Trade, Industry and Competition & Another (J587/2021) [2021] ZALCJHB 98 (4 June 2021) [10] Judicial management or oversight over the whole consultation process would be compromised if the courts role was limited to an ex post facto examination and evaluation of the consultation process. The role of the court is not that of armchair critic circumstances may warrant active intervention during the course of a consultation process. The fact that the court is entitled in terms of section 189A (13) (a) to compel the employer to comply with a fair procedure suggests that intervention in terms of that section is competent at any stage during the window period referred to above. Section 189A: Disclosure of information J587/2021 NEHAWU v Minister for Trade, Industry and Competition & Another (J587/2021) [2021] ZALCJHB 98 (4 June 2021) [13] In any event, to the extent that the applicant was concerned that the second respondent had failed to disclose relevant information, the provisions of section 16 of the LRA contain a self-contained dispute resolution process in terms of which disputes regarding disclosure of information must be resolved. Where, as in the present case, the consultation process is chaired by a facilitator, the Facilitation Regulations, 2002, extend specific powers to the facilitator to order the disclosure of information. Regulation 5 provides that if there is a dispute about the disclosure of information the facilitator may, after hearing representations from the parties, make an order directing an employer to produce documents that are relevant to the facilitation. Should the applicant have been dissatisfied with the terms of any ruling made by the facilitator, it was open to the applicant to seek a review of that ruling, on an urgent basis of necessary. [17] The question then is whether the second respondent has failed to comply with the process-related requirements of sections 189 and 189A. At the outset, it should be observed that where a facilitator is appointed to chair the facilitation process, the broad powers and duties of a facilitator conferred by both section 189A and Regulation 4 of the Facilitation Regulations, would ordinarily leave little scope for criticism of employer conduct in relation to procedure. The structure of section 189A and the powers and duties conferred on facilitators ought to have the result that facilitators manage the process and ensure that the statutory requirements of procedural fairness are observed. Put another way, one of the primary obligations of a facilitator is to exercise the powers afforded him or her to ensure that the employer complies with a fair procedure. [20] Section 189A (13) is aimed at securing the process of consultation in the interests of the fair outcome. It is aimed at unjustifiable intransigence, not as a tool to thwart a retrenchment process (see RAWUSA v Schuurman Metal Pressing (Pty) Ltd [2005] 1 BLLR 78 (LC)), and is properly confined to those instances where a substantial failure or refusal to comply with the relevant statutory requirements has occurred (see AMCU v Sibanye Gold Ltd t/a Sibanye Stillwater [2019] 8 BLLR 802 (LC)). In my view, the applicant has failed to establish that at this point in the consultation process, the second respondent has failed to comply with a fair procedure. The application thus stands to be dismissed. Contemplate JA 40/2020 De Bruyn v Metorex Proprietary Limited (JA 40/2020) [2021] ZALAC 18; [2021] 10 BLLR 979 (LAC) (21 July 2021) SACCAWU & others v JDG Trading (Pty) Ltd (2019) 40 ILJ 140 (LAC) para 26- quoting with approval from Du Toit et al Labour Law Through the Cases (Lexisnexis October 2017 Update) LRA Chapter 8, Commentary on s 189(1). [49] In terms of section 189(1) of the LRA an employer is to consult with employees (or those representing them) when it contemplates dismissing one or more of its employees for reasons based on its operational requirements. This court accepted that the prevailing legal position is that, for purposes of section 189, the word contemplates refers to dismissal as the preferred and most likely option from the employers point of view rather than the mere possibility; and that it follows that an employer is entitled to engage in a process of weighing up various alternatives before it can be said that dismissal is contemplated[10]. [50] On the probabilities Metorex contemplated the retrenchment of, in particular the appellant, as the preferred or most likely option after successful implementation of the Jinchuan model at its mines and at its head office, i.e. sometime in November 2015. In any event as submitted on behalf of Metorex, no prejudice was shown to have been suffered by the appellant because of the time when consultations were commenced with him. section 189A: unfair procedure and urgent application J2834/16; J2845/16 Association of Mineworkers and Construction Union (AMCU) and Others v Piet Wes Civils CC and Others (J2834/16; J2845/16) [2021] ZALCJHB 331 (1 October 2021) AMCU and Others v Piet Wes Civils CC and Another [2017] ZALCJHB 7; (2017) 38 ILJ 1128 (LC); [2017] 5 BLLR 501 (LC) at para s21-25. [21] Section 189A(13) has as its purpose to compel an employer in large scale retrenchments to follow a fair procedure if it has not done so.[22] As the learned authors in Labour Relations Law: A Comprehensive Guide[7] point out, the purpose of providing for application proceedings rather than ordinary referral is presumably to simplify and expedite the resolution of disputes about procedural unfairness. Hence this urgent application.[23] The authors of South African Labour Law[Thompson & Benjamin, South African Labour Law (Service no 66, 2016) at AA1-517.] explain: The procedural dimension of retrenchment has been hived off from the substantive dimension. The idea is that if a union or employee sees a failure in the consultative process, they should not stand on their rights but act at once, and approach the court for appropriate relief. The intent no doubt is to allow for early corrective action so that a process failure will not escalate into a substantive injustice.[24] The Constitutional Court recently gave a comprehensive judgment dealing with the provisions of s 189A. In Steenkamp v Edcon Ltd[(2016) 37 ILJ 564 (CC); 2016 (3) BCLR 311 (CC); [2016] 4 BLLR 335 (CC); 2016 (3) SA 251 (CC) paras 161-164.] Zondo J (for the majority) discussed s 189A(13) in circumstances such as these, where the employees had already been dismissed:[161] If an employer has already dismissed employees without complying with a fair procedure, the consulting party may apply to the Labour Court in terms of subsection (13)(c) for an order reinstating the employees until the employer has complied with a fair procedure. The significance of the remedy of reinstatement in subsection (13)(c) is that it is made available even for a dismissal that is unfair only because of non-compliance with a fair procedure. That is significant because it is a departure from the normal provision that reinstatement may not be granted in a case where the only basis for the finding that the dismissal is unfair is the employers failure to comply with a fair procedure. In such a case the norm is that the Labour Court or an arbitrator may award the employee only compensation.[162] Subsection (13)(d) provides that a consulting party may apply to the Labour Court for an award of compensation if an order in terms of paragraphs (a) to (c) is not appropriate. It seems to me that the phrase if an order in terms of paragraphs (a) to (c) is not appropriate constitutes a condition precedent that must exist before the Court may award compensation. The significance of this condition precedent is that its effect is that the Labour Court is required to regard the orders provided for in subsection (13)(a) to (c) as the preferred remedies in the sense that the Labour Court should only consider the remedy in subsection (13)(d) when it is not appropriate to make any of the orders in subsection (13)(a) to (c).[163] This is a reversal of the legal position that obtains in the case of dismissals for the employers operational requirements governed by only section 189 where dismissal is only procedurally unfair and not substantively unfair as well. In these cases the Labour Court is required not to order reinstatement at all. So, in making the remedy of reinstatement available for a procedurally unfair dismissal and also making it one of the preferred remedies in subsection (13), the Legislature has gone out of its way to give special protection for the rights of employees and to protect the integrity of the procedural requirements of dismissals governed by section 189A.[164] The extensive remedies in subsection (13) provide at least partial compensation for the fact that in respect of disputes concerning the procedural fairness of dismissals the employees have been deprived of the right to adjudication that other employees have. In part the extensive remedies in subsection (13) for non-compliance with procedural fairness have been provided because of the importance of the pre-dismissal process. selection criteria (other than LIFO) JS440/14 General Industries Workers Union of South Africa (GIWUSA) and Others v African Explosives Limited (JS440/14) [2021] ZALCJHB 445 (7 November 2021) [6] LIFO is generally accepted as fair and objective criteria. Where appropriate however, a combination of LIFO with retention of skills, qualifications, merit, conduct, performance, experience, and adaptability will equally be deemed to be fair and objective[NUM & others v Anglo American Research Laboratories (Pty) Ltd [2005] 2 BLLR 148 (LC); Food and Allied Workers Union on behalf of Kapesi and Others v Premier Foods t/a Blue Ribbon Salt River [2012] 33 ILJ 1729 (LAC); National Union of Metalworkers of South Africa and Others v Columbus Stainless (Pty) Ltd (JS529/14) [2016] ZALCJHB 344 (30 March 2016) (per Van Niekerk J) at para 10]. It is also accepted that bumping forms part of LIFO as a method for selection of employees to be retrenched[Mtshali v Bell Equipment (DA16/12) [2014] ZALAC 37 (22 July 2014) at paras 22 -23 and 30]. The overriding consideration however is that the employer must objectively provide valid measures and relevance of any such differentiation. This is so in that the employers subjective preferences, or arbitrary, capricious and inconsistent criteria or even other discriminatory or irrelevant factors, would invariably render selection of employees for retrenchment to be unfair[SA Breweries (Pty) Ltd v Louw (2018) 39 ILJ 189 (LAC); Telkom SA SOC Limited v van Staden and Others (JA68/2018) [2020] ZALAC 52; (2021) 42 ILJ 869 (LAC) at para 34]. [13] In considering whether the selection criteria adopted by the respondent was objective and fair, it is useful to reiterate that even though this Court is entitled to scrutinise the fairness and objectivity of the selection criteria, it is however not for it to impose its preference, or to attach any weight to one selection criterion over another. Thus, the Court must accord some deference to the exercise of the employers discretion in that regard[Telkom SA SOC Limited v van Staden and Others at para 37]. [14] As a starting point, it ought to be reiterated that LIFO to the exclusion of other criteria has not been endorsed as the sole objective and fair criteria[National Union of Metalworkers of South Africa and Others v Columbus Stainless (Pty) Ltd at para 10]. To this end, LIFO combined with other criteria as applied in this case, cannot contrary to GIWUSAs contentions, be said to be unfair. The fairness and objectivity of the selection criteria preferred by the respondent ought to be viewed within the context of the entire restructuring process and its objectives. [15.9]...Thus, where the legitimacy and justification for restructuring exists was not doubted, and further where there was justification for modernisation of the respondents operations which required a certain level of skills and qualifications to be fit for purpose, there can be nothing inherently unfair in requiring the employees to meet the minimum requirements set by the respondent, as well as the level of skills required, which might in the end, supersede LIFO on its own. [28] In the end, I am satisfied that the selection criteria adopted by the respondent met the threshold of objectivity and fairness and was consistently applied. The criteria was rationally connected with the operational reasons for the retrenchment, and the ultimate objectives of the exercise. substantive and procedural unfairness with regards to retrenchments overlap JA2/20 Mbekela v Airvantage (Pty) Ltd (JA2/20) [2021] ZALAC 47 (26 November 2021) substantive and procedural unfairness with regards to retrenchments overlap and should not be considered in silos. A failure to consult on ways to avoid retrenchment may lead to substantive unfairness. Order of the court a quo that failure to consult led to procedural unfairness only, set aside and replaced with a finding that the dismissal was substantively and procedurally unfair. [17] In General Foods Industries Ltd v FAWU,[(2004) 7 BLLR 667 (LAC).] this Court said: After consultations have been exhausted the employer must decide whether to proceed with retrenchment or not. The loss of jobs to retrenchment has such a deleterious impact on the life of workers and their families that it is imperative that, even though reasons to retrench employees may exist, they will only be accepted as valid in the employer can show that all viable alternatives have been considered and taken to prevent the retrenchment or to limit this to a minimum.[6][18] When the employer decides to retrench it becomes the courts duty to determine the fairness of the dismissal objectively. In making that determination, the court must always be mindful of the fact that the resort to dismissal especially a so-called no-fault dismissal, which some regard as a death penalty in the field of labour and employment law, is meant to be a measure of last resort.[Chemical Workers Industrial Union v Algorax (2003) 24 ILJ 1917 (LAC) at para 70.][19] The architectural foundation on which the edifice of our law relating to retrenchments is built is the saving of jobs by taking sufficient steps to avoid dismissals. Where it is clear that no steps were taken in order to avoid a dismissal such dismissal would be without a fair reason. It is difficult to discern how a dismissal which could have been avoided but was not can only impact procedural fairness. Substantive and procedural fairness issues, with regard to retrenchments, may and do often overlap. They are, in most cases, interlinked. Whether a failure to follow a particular procedure would lead to substantive unfairness depends on the facts and circumstances of each case.[20] The court a quo evaluated substantive and procedural in silos. It endeavoured to draw a clear and sharp dividing line between substantive and procedural fairness. This was unhelpful. It did not consider whether the failure to jointly consider ways to avoid the dismissal rendered it substantively unfair, even in circumstances where there is a genuine rationale to retrench.[21] Even if there was a fair rationale to retrench the appellant, no proper attempt was made to allow her to give input about her own destiny in an attempt to avoid her dismissal. She was given the notice after the respondent purportedly consulted with her. When she was unresponsive during the meeting, she was not given information on which to make an informed decision. alternative position condition not met JA72/2020 Reeflords Property Development (Pty) Ltd v Almeida (JA72/2020) [2022] ZALAC 8 (16 March 2022) [15] To be meaningful, a consultation in the context of a contemplated retrenchment must be genuine and engaged in with the purpose of seeking alternatives to avoid dismissal.[SA Clothing and Textile Workers Union and Others v Discreto A Division of Trump and Springbok Holdings (1998) 19 ILJ 1451 (LAC) at para 8; Super Group Trading (Pty) Ltd v Janse van Rensburg [2012] ZALAC 7 (25 April 2012) at para 20.] At the second consultation meeting, the appellant presented an alternative, which was accepted by the respondent on condition that training was provided and that the AA rate for travel was paid. If this position had been offered to the respondent, it would have constituted a reasonable alternative to retrenchment.[16] Inexplicably, when the contract of employment in respect of the alternative position was provided to the respondent, the issue of training and the payment of AA rates were both omitted. This was so despite the known fact that it was on the basis of their inclusion that the alternative position was acceptable to the respondent. No explanation was provided by the appellant why it had backtracked from its offer made at the second consultation meeting. In addition, when the respondent gave the appellant notice in writing, prior to the third consultation meeting, that she was not satisfied with the alternative set out in the contract received by her, the appellant elected not to respond to the letter and provided no satisfactory reason for its failure to do so. Constitutional Court: selection criteria and seeking information and section 189A(13) CCT 102/21 Solidarity obo Members v Barloworld Equipment Southern Africa and Others (CCT 102/21) [2022] ZACC 15 (6 May 2022) [2]...For various reasons that will be explored fully below, the Labour Court held that the applications did not raise compliance issues, but rather general issues relating to procedural fairness and, to a certain extent, substantive fairness and that section 189A(13) should not have been invoked. It dismissed the applications with costs. [8]...possible termination based on race [14]... It referred to this Courts decision in Steenkamp II,[Steenkamp v Edcon Limited [2019] ZACC 17; (2019) 40 ILJ 1731 (CC); 2019 (7) BCLR 826 (CC) (Steenkamp II).] and held that the jurisdiction of the Labour Court to adjudicate on procedural fairness of a dismissal based on the employers operational requirements has been ousted.[11] The Labour Court said that there is an incorrect view that its jurisdiction in such matters was restored, pursuant to section 189A(13) of the LRA. The Court held that this view is plainly incorrect because section 189A(13) does not make any reference to procedural fairness but specifically provides that if an employer does not comply with a fair procedure, a consulting party may apply to the Labour Court for an order compelling the employer to comply with a fair procedure. It does not, the Court emphasised, refer to procedural fairness.[12] [16] The Labour Court held that procedural fairness in a broader sense goes beyond an employer’s statutory obligations alone. A typical example, according to the Court, relates to disclosure of information. It also said that, notwithstanding that disputes over procedural fairness are excluded from the ambit of section 189A(13), the LRA does not leave the consulting parties without a remedy or permit the employer to do whatever it wishes during the consultation process. Rather, it enjoins facilitators to facilitate the process and, where necessary, exercise their wide powers to make rulings. In addition, employees retain their constitutional right to strike over issues arising from procedural fairness throughout the consultation process.[16] [18]...The Court also held that in its view transformation is not a selection criterion per se, and that Solidarity’s complaint, properly construed, related to substantive fairness. The issue of which selection criteria to apply is one of substance and not procedure, so reasoned the Court. It then stated that Solidarity had a right, in terms of section 189A(7)(b)(ii), to refer the dispute as to whether there was a fair reason for the dismissal to the Court in terms of section 191(11) of the LRA. The Labour Court then concluded that it would be inappropriate if it were to adjudicate a procedural fairness dispute brought as a section 189A(13) application, as its powers were taken away by section 189A(18).[18] [20] The Court then dealt with the issues presented by NUMSA, which it also held were issues of substance that fell outside the ambit of the Labour Courts powers in terms of section 189A(13).[20] The Court held that NUMSA ought to have dealt with Barloworld’s alleged failure to provide it with certain information through the remedial procedure provided for in section 16 read with section 189(4) of the LRA. It held that this process was specifically designated by the LRA, and could not be bypassed by the Court purporting to exercise jurisdiction in terms of section 189A(13).[21] [29] Solidarity argues that it has been held that consultation must be exhaustive and not sporadic, superficial or a sham, in order to be considered meaningful. And that the Code of Good Practice on Dismissal based on Operational Requirements[24] codifies this where it states that the employer should in good faith keep an open mind throughout and seriously consider proposals put forward.[25] This, in Solidarity’s view, negates the description that the Labour Court attaches to consultation as being mere engagement. It submits that consultation is seldom deemed sufficient when it is rushed. To be meaningful in terms of section 189(2) of the LRA, the consultation process must allow sufficient time for disclosure, consideration and dialogue. It argues that there was no meaningful consultation on the selection criteria in general and the criterion of transformation in particular. [32]...whether the employer had complied with its statutory obligation to engage in a fair consultation procedure. Barloworld submits that the Labour Court correctly held that, in proceedings under section 189A(13), the only relevant question was the second one. [41] Section 189A regulates dismissals for operational requirements by employers with more than 50 employees.[29] Barloworld was such an employer. Section 189A(2) requires that an employer must give notice of termination of employment in accordance with the provisions of the section, that an employee may participate in a strike and an employer in a lock out, and that the consulting parties may agree to vary the time periods for facilitation or consultation. [43] The concept of a meaningful joint consensus-seeking process that is envisaged in section 189(2) is not defined in the LRA. In Atlantis Diesel Engines,[31] the Appellate Division had the following to say about it:[This] approach requires consultation once the possible need for retrenchment is identified and before a final decision to retrench is reached. It proceeds on the premise that consultation requires more than merely affording an employee an opportunity to comment or express an opinion on a decision already made. It envisages a final decision being taken by management only after there has been consultation in good faith.. . . .However, an employer cannot be expected to disclose information which, (a) is not available to it, (b) is not relevant to the issues under discussion, and (c) could harm the employers business interests for reasons other than its relevance to the consultation process, e.g. trade secrets and other confidential information. Atlantis Diesel Engines (Pty) Ltd v National Union of Metalworkers of South Africa [1994] ZASCA 183; 1995 (3) SA 22 (AD). [67] The above excerpts read with section 189A(18) remove disputes about procedural fairness, as a distinctive claim or cause of action, that a dismissal on the basis of operational requirements was procedurally unfair, from the adjudicative reach of the Labour Court. [72] In light of these principles and the jurisprudence canvassed above, it is clear that, other than TAWUSA,[TAWUSA obo Mothibedi v SATAWU, unreported judgment of the Labour Court, Case No J885/20 (17 September 2020).] there is no authority in support of the Labour Courts finding that there is a distinction between compliance with a fair procedure and procedural fairness. selection criteria JA49/2020 Regenesys Management (PTY) Ltd t/a Regenesys v Nortje and Others (JA49/2020) [2022] ZALAC 96 (18 July 2022) [22] The reliance on Louw is misplaced. In that matter, the employee did not apply for a post, despite an invitation to do so, as a result of which he was retrenched. This Court made it clear that a competitive process to seek to avoid retrenchment is not unfair. However, this does not remove the obligation on an employer to ensure that any resultant retrenchment meets the requirements of substantive fairness, with fair and objective selection criteria used to select those employees to be retrenched and alternatives to retrenchment properly canvassed and carefully considered. selection criteria JS 1069/2020 SACU obo Danster v Bidvest Facilities Management (Pty) Ltd (JS 1069/2020) [2022] ZALCJHB 251 (9 September 2022) [16] In National Union of Metalworkers of SA v Columbus Stainless (Pty) Ltd (unreported, JS 529/2014, 30 March 2016) the court said the following: Following the influential article by Prof Alan Rycroft 'Corporate restructuring and 'applying for your own Job' (2002) 23 ILJ 678, the courts have held that criteria need to be clear and transparent and selection criteria and the application should ensure that the dismissal does not cross the line between a no-fault dismissal and one based on performance. John Grogan (see Dismissal at 245) has summarised the position as follows: In summary, criteria for selection can be divided into those that are potentially fair, and those that are unacceptable in principle. Potentially fair criteria include length of service, balanced by the need to maintain history skills. In addition, criteria such as performance (with individual or group performance), conduct, experience, skill, adaptability, attitude, potential and the like - or a matrix or 'mix' of such criteria - are acceptable. When these criteria are adopted, however, the employer is required to ensure that a 'rating' system is used which can be applied fairly, consistently and objectively. [15] The court went on to observe that in order to remove any element of personal feeling and opinion from the assessments, the respondent had appointed a panel of supervisors, each of whom knew the employee from the relevant work area and was able to assess the employee against the stated requirements. The assessment was moderated by an area manager. As a further measure to avoid employees being prejudiced by any subjective assessment, the score had been discussed with employees who were affected, and any employee dissatisfied with his or her rating was afforded the right of appeal. [16] What emerges from these cases is that it is legitimate for any employer to apply LIFO subject to special skills, and that a range of factors may be taken into account in determining, on a case-by-case basis, whether the special skills exception trumps length of service. These factors extend, as Grogan observes, to those that border on the subjective and include attitude, adaptability, potential and the like. But what is significant is a requirement that an affected employee be consulted on the specific factors to be applied, and that he or she be given an opportunity to respond to any assessment made by the employer. by early September 2020, the applicant had already been selected for retrenchment and that by 11 September, she was told why she had been selected, albeit in terms that lacked the specificity reflected in the schedule. In my view, it was incumbent on the respondent, in the circumstances, to afford the applicant and/or her representative the opportunity to challenge the conclusions drawn in the schedule, which unquestionably formed the basis for the applicants selection for retrenchment. That failure to afford the applicant this opportunity renders her dismissal unfair. 1. The respondent is ordered to pay the applicant compensation consequent on an unfair dismissal in a sum equivalent to 6 (six) months remuneration, to be calculated at the rate of remuneration paid to the applicant at the time of her dismissal. alternatives, selection criteria JS 130/20 National Union of Food Beverage Wine Spirits and Allied Workers (NUFBWSAW) and Others v Coca Cola Beverages South Africa (PTY) Ltd (JS 130/20) [2022] ZALCJHB 268 (21 September 2022) [36] Turning to the question of dismissal as a measure of last resort as developed by the Labour Appeal Court in NUMSA v Atlantis Diesel Engines (Pty) Ltd[(1993) 14 ILJ 642 (LC).], the real question is whether there were means available to an employer to avoid a no-fault dismissal. If means are available, it will be substantively unfair to dismiss an employee in the circumstances where his dismissal was avoidable. In casu, it was apparent that CCBSA had available a means to avoid the dismissal of the two applicants that testified before me. As held in Bogopa, and Telkom v Oosthuizen[[2007] 11 BLLR 1013 (LAC).], it remains the duty of an employer to avoid a dismissal. In order to realize that duty, where an employer has vacant positions it must offer those to the affected employees. CCBSA did exactly that. [39] This Court must hasten to state that where an employee wish to rely on the fact that his or her dismissal would have been avoided because the employer had vacant positions, such an employee, must make that allegation in the statement of case. There may be instances where an employer hides the fact that at the relevant time, there were vacant and available positions that could have avoided the dismissal of an employee. In such instances a Court may reach a conclusion that dismissal was unavoidable because there were no alternative available vacancies. Having said that this Court must add that the obligation to consider whether there are other jobs available rests with the employer[13]. Once searched and found, an employer is obligated to offer those available jobs to an employee in order to avoid his or her dismissal. The unfortunate situation in an instance where jobs are made redundant is that unless an alternative position is found an employee affected by the redundancy will ultimately be dismissed. In the case of Williams v Compair Maxam Ltd[14], Mr Justice Browne-Wilkinson stated that the first principle to adopt in a redundancy is that an employer must seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and if necessary find alternative employment elsewhere in the undertaking or elsewhere. [41] In terms of section 189 (7) of the LRA, an employer is obliged to select employees using criteria that were agreed and if there is none agreed to, one that are fair and objective. When it comes to selection criteria two issues arise, namely; (a) the selection adopted must be fair and objective; and (b) the criteria must be objectively and fairly applied. In Grieg v Sir Alfred McAlpine and Son (Northern) Ltd[[1979] IRLR 372.] it was held that where an employer has failed to prove that the criteria had been objectively and fairly implemented, the dismissal was unfair. It is important to state that in a situation where all positions are made redundant a selection criterion does not apply because everyone is to be dismissed if alternative positions are not found. [42] I am in full agreement. Where all employees are to be dismissed in a redundancy situation there can be no assessment to be undertaken as to who stays and who goes. All will go if alternative positions are not found. However, if an employer adopts criterion other than last in first out (LIFO) for the purposes of redundancy selection, that employer must be able to show both that the criteria adopted are fair and objective and that the criteria has been applied rationally and objectively. In a situation involving so many employees, it is not sufficient for a single person who makes the selection to say he has done so on the basis of his management skill and judgment. When so many employees are involved, and a basis of selection is to be used which is open to the possibility of being influenced by over-subjective assessments, or even sheer prejudice, on the part of the person making the choice, it is important that management be able to show that they took sufficient steps to make their decision as objective and unbiased as possible. selection criteria JS 994/20 Koprindjiyska v 80 Westcliff (PTY) LTD T/A Four Seasons Hotel (JS 994/20) [2022] ZALCJHB 325 (22 November 2022) [13] The LRA does not compel the adoption and application of any particular criterion for selection for retrenchment. It requires only that in the absence of agreed criteria, the employer apply criteria that are fair and objective. That is a broad remit, and admits a number of potential criteria, many of which may be justifiable in relation to prevailing circumstances. For example, the court has upheld selection criteria based on performance, verified by objective standards (see NUM & others v Anglo American Research Laboratories (Pty) Ltd [2005] 2 BLLR 148 (LC)). As Prof Rochelle le Roux observes The way in which LIFO is applied can lead to vastly diffident results. Ultimately, the question remains whether it is applied in a fair and objective manner (R le Roux Retrenchment Law in South Africa (Lexis Nexis 2016). Put another way, while an employee has the right to influence the employers decision on the selection criteria to be applied, the employee has no right to insist that any particular criteria applied, provided that those ultimately applied meet the test of fairness and objectivity. [14] A case to which Prof le Roux refers resonates closely with the present. In SA Commercial Catering & Allied Workers Union & others v Sun International SA Ltd (A Division of Kersaf Investments Ltd (2003) 24 ILJ 594 (LC), a hotel group retrenched employees at several of its hotels on account of declining revenue. The employer applied LIFO by hotel, by department, by job category. The union argued that LIFO ought to have been applied across the board in each hotel. The court held that there was no reason to conclude that the criteria applied by the employer were not fair and objective. At paragraph 22 of the judgment, the court said the following: If it is accepted, as the union accepts, that the respondent was facing serious financial difficulties which required to cut costs by reducing staff numbers, it seems to me that it was not inappropriate or unfair for the respondent to have identified the number of employees in each job category at each unit whose services it could most afford to lose and then to subject on the basis of applying LIFO within such job categories. In my view this was both a fair and objective approach. [19] In summary: The LRA is not prescriptive on the matter of selection for retrenchment. It requires only that the selection criteria adopted by the employer are fair and objective. The application of LIFO can have vastly different consequences for individual employees potentially affected by a retrenchment. Employees have no right to require that particular criteria, the application of which would be favourable to them, must be adopted. Ultimately, it is for the employer to make a decision that is best consistent with its legitimate business interests. Selection on the basis of LIFO based on length of service with the hotel rather than the department in which the applicant was employed was not inherently unfair; nor was it inherently unfair to apply LIFO in the absence of consideration of skills and experience. The applicants dismissal was thus substantively fair. bumping JS 415/17 Bayane and Another v Fischer Tube Technik SA (JS 415/17) [2023] ZALCJHB 12 (3 February 2023) "[20] In the present case, the consultation process engaged by the parties was genuine and bona fide, geared to minimise the impact of the retrenchment on the individual applicants and in fact gave birth to an agreed retrenchment criteria or alternative solution which in my opinion was fair and objective. It is not in dispute that the alternative positions were offered and accepted only for the salaries condition to be presented at a later stage. The Labour Appeal Court in Mtshali v Bell Equipment[(DA16/12) [2014] ZALAC 37 (22 July 2014).] it was held that: “Bumping is situated within the “last in-first out” (LIFO) principle which is itself rooted in fairness for well-established reasons. Longer serving employees have devoted a considerable part of their working lives to the company and their experience and expertise is an invaluable asset. Their long service is an objective tribute to their skills and industry and their avoidance of misconduct. In the absence of other factors, to be enumerated hereinafter, their service alone is sufficient reason for them to remain and others to be retrenched. Fairness requires that their loyalty be rewarded”" "[21] There are two forms of bumping, “horizontal bumping” – where an employee is transferred to a position of similar status, conditions of employment and remuneration and “vertical bumping” – where an employee is transferred to a position with less favourable status, conditions of employment and remuneration. It is trite in law that an employer must first apply horizontal “bumping” before vertical “bumping”. In the case of Porter Motor Group v Karachi[[2002] 4 BLLR 357 (LAC).] the Labour Appeal Court dealt extensively with “bumping” in dismissals for operational requirements. The Court laid down the following principles where “bumping” is to take place: 21.1 that an employer is required to consult over the possibility of “bumping”; 21.2 that the practice uses as its point of departure the LIFO principle; 21.3 that “horizontal” bumping should take place before “vertical bumping” is resorted to; 21.4 that “bumping” should be implemented in a way that creates the minimum possible disruption for the employer; 21.5 that geographical limits may be placed on the unit within which “bumping” is effected; 21.6 that the size of the unit will depend on the mobility and career paths of the employees concerned; 21.7 “bumping” must be effected with due regard for the retention of necessary skills; 21.8 downward “bumping” should take place where the employee is prepared to accept downgrading in work and status" [22] The principle laid out in Karachi case is simply that the employees may refuse the vertical bumping and if this is imposed on them then the dismissal becomes unfair. If this principle is anything to go by then the dismissal of the Applicants is unfair. alternative fixed term contract JS 212/21 Wolmarans v Rio-Carb (Pty) Ltd (JS 212/21) [2023] ZALCJHB 278 (17 October 2023) Retrenchment – Fixed-term contract offer – Applicant retrenched for operational reasons arising out of effects of Covid-19 pandemic – Genuine reason for retrenchment communicated to applicant – LIFO implemented as fair selection criterion – Applicant has himself to blame for rejecting fixed-term contract offer made to him in uncertain times in which not only the company but the entire country and the globe found itself in – Dismissal of applicant was procedurally and substantively fair. [52] In my view, the applicant having accepted the rationale for the retrenchment was premised on the impact of the Covid-19 pandemic on the operations of the respondent, having been well aware of the effect that the pandemic and the national lockdown regulations had on the respondent, given the 20% cut in salaries and TERS payments as measures to keep employees in employment, I find that the applicant has himself to blame for rejecting the fixed -term contract of employment offer that was made to him in the uncertain times in which not only the respondent but the entire country and the globe found itself in. The evidence of Mr Maine is that the fixed term employment contract that Mr. van Wyk concluded on 23 June 2020 with the respondent comprised of a portion of the applicant’s previous job and that Mr. van Wyk did not occupy the previous position in which the applicant was employed. section 189A J 250/2019 BIFAWU obo Miya and Another v Scorpion Legal Protection (Pty) Ltd (J 250/2019) [2023] ZALCJHB 314 (8 November 2023) [6] Mr Nhlapo for the Applicant submitted that the LRA distinguishes between small-scale and large-scale retrenchments and that the Respondent had an obligation to indicate to the Applicant which process would be followed. The section 189 notice that was issued by the Respondent was quiet on the issue and at no stage was the Applicant aware that it was indeed a section 189A retrenchment. "[12] The relationship between sections 189 and 189A of the LRA is symbiotic and this was confirmed by the Labour Appeal Court (LAC) in Gijima AST (Pty) Ltd v Hopley[[2014] ZALAC 9; (2014) 35 ILJ 2115 (LAC) at para 34.] where it was held that: ‘The two sections must be read together since they both apply to dismissals for operational requirements. Further, the overall obligation imposed by the two sections is for consultation on the matters referred to in s 189. It is also significant to note that the s 189A process is initiated by the very same s 189(3) notification issued for retrenchments. The items that form the subject of consultation are only listed in s 189(2) which includes the method for selecting employees to be dismissed. Such a provision is not found in s 189A.’" " [13] Section 189A aims for a firm separation between substantive and procedural fairness and in the case of a large-scale retrenchment, procedural fairness can be addressed only via section 189A(13). As such, section 189A provides for a procedure in respect of procedural lapses whereby an applicant may approach the Labour Court by way of an application for relief. It also provides for adjudication of procedural disputes at an early stage, preferably for procedural lapses to be remedied early on and not once the process has run its course. [14] Section 189A(13) provides as follows: ‘If an employer does not comply with a fair procedure, a consulting party may approach the Labour Court by way of an application for an order — (a) compelling the employer to comply with a fair procedure; (b) interdicting or restraining the employer from dismissing an employee prior to complying with a fair procedure; (c) directing the employer to reinstate an employee until it has complied with a fair procedure; (d) make an award of compensation, if an order in terms of paragraphs (a)–(c) is not appropriate.’ [15] An application contemplated by section 189A(13) is an application sui generis. There is little point in affording an applicant the remedy of an interdict or an order directing an employer to reinstate an employee until it complies with the fair procedure unless the application is accorded a degree of urgency and is dealt with on that basis. [16] The purpose of section 189A(13) is to prevent procedural issues from clouding the substantive fairness of the retrenchment, wherefore the relief will usually be sought on an urgent basis and be in the form of a pre-emptive interdict. An application in terms of section 189A(13) should not be delayed as the relief in terms of section 189A(13)(a)-(c) will be granted with the aim of ensuring that the consultation process serves its proper purpose.[3]. " "[17] In Insurance and Banking Staff Association and another v Old Mutual Services and Technology Administration and another[[2006] 6 BLLR 566 (LC) at para 9.] (Old Mutual), the Court described the aim and purpose of the 2002 amendments to the LRA, with specific reference to section 189A, as follows – ‘…section 189A was aimed at enhancing the effectiveness of consultations in large-scale retrenchments. It allows for a facilitator to be appointed to put back on track at the earliest possible moment a retrenchment process that falls off the rails procedurally. The overriding consideration under section 189A is to correct and prevent procedurally unfair retrenchments as soon as procedural flaws are detected, so that job losses can be avoided. Correcting a procedurally flawed mass retrenchment long after the process has been completed is often economically prohibitive and practically impossible. All too often the changes in an enterprise with the passage of time deters reinstatement as a remedy. So, the key elements of section 189A are: early expedited, effective intervention and job retention in mass dismissals.’" "[18] In National Union of Mineworkers v Anglo American Platinum Ltd and others[[2013] ZALCJHB 262; [2013] 12 BLLR 1253 (LC) at para 19.] it was held that: ‘Section 189A(13) was introduced in 2002 and was intended, broadly speaking, to provide for the adjudication of disputes about procedural fairness in retrenchments at an earlier stage in the ordinary dispute resolution process, and by providing for their determination, inevitably as a matter of urgency, on application rather than by way of referral. The section empowers employees and their representatives to approach the court to require an employer to apply fair procedure, assuming, of course, that the jurisdictional requirements set out in section 189A are met. The section affords the court a broad range of powers, most of which appear to suggest that where a complaint about procedure is made by a consulting party, the court has a broad discretion to make orders and issue directives, thereby extending to the court an element of what might be termed a degree of judicial management into a contested consultation process.’" "[20] In Banks and another v Coca-Cola SA - A Division of Coca-Cola Africa (Pty) Ltd,[2007] ZALC 175; (2007) 28 ILJ 2748 (LC) at para 18.] the Court summarized the role of the Court in a section 189A(13) application as follows: ‘In short, the conclusion to be drawn from the wording of s 189A is that this court appears to have been accorded a proactive and supervisory role in relation to the procedural obligations that attach to operational requirements dismissals. Where the remedy sought requires intervention in the consultation process prior to dismissal, the court ought necessarily to afford a remedy that accounts for the stage that the consultation has reached, the prospect of any joint consensus-seeking engagement being resumed, the attitude of both parties, the nature and extent of the procedural shortcomings that are alleged, and the like. If it appears to the court that little or no purpose would be served by intervention in the consultation process in one of the forms contemplated by s 189A(13)(a), (b) and (c), then compensation as provided by para (d) is the more apposite remedy.’" [22] In Steenkamp and Others v Edcon Limited[[2019] ZACC 17; (2019) 40 ILJ 1731 (CC).] (Steenkamp II), the Constitutional Court dealt with the question of whether claims for relief for procedural unfairness in large-scale retrenchments can be dealt with ex post facto. The Constitutional Court endorsed the finding of the Labour Appeal Court[10] that section 189A(13) does not constitute a self-standing remedy for compensation for procedural unfairness long after the event. "[25] What are the legal principles that emerged from Steenkamp II? The Constitutional Court, considering the nature, purpose and functioning of section 189A(13) held that: ‘[45] The LRA provides for a consultative framework within which employees facing possible retrenchment may participate in the consultation process in an attempt to either avoid a possible retrenchment or, where retrenchments are unavoidable, to participate in attempts to ameliorate the adverse effects of such a retrenchment. [46] Where a retrenchment exercise involves a large number of employees, s 189A of the LRA applies. This section not only strives to enhance the effectiveness of the consultation process by providing for the appointment of a facilitator, but also provides for mechanisms to pre-empt and resolve disputes about substantive and procedural unfairness issues as and when they arise during the consultation process. [47] A distinctive feature of section 189A(13) of the LRA is the separation of disputes about procedural fairness from disputes about substantive fairness. Disputes about substantive fairness may be dealt with by resorting to strike action or by referring a dispute about the substantive fairness of the dismissals to the Labour Court in terms of s 191(11) of the LRA. [48] Disputes about procedural fairness have been removed from the adjudicative reach of the Labour Court and may no longer be referred to the Labour Court as a distinctive claim or cause of action that a dismissal on the basis of operational requirements was procedurally unfair.’" [26] The Constitutional Court made it clear that, although a clear policy decision has been made to remove claims of procedural unfairness from the ex post facto jurisdictional competence of the Labour Court, employees are not left without a remedy as they may approach the Labour Court in terms of section 189A(13) of the LRA for an order compelling the employer to comply with a fair procedure. Where employees have already been dismissed, the Labour Court has the additional power in terms of section 189A(13)(c) of the LRA to reinstate such an employee to allow for the consultation process to run its course. Only where these orders are not appropriate, may the Labour Court, where it is appropriate to do so, order compensation in terms of subsection (d). [33] The facts in casu as submitted by Mr Nhlapo are that the Applicant was unaware that the retrenchment of the individual applicants was governed by section 189A. Even though I have empathy for the individual applicants on this score, this Court cannot assume jurisdiction on that ground. [39] In summary: The provisions of section 189A(18) remove a claim for procedural unfairness in a large-scale retrenchment from this Court’s jurisdiction, where such a case was not pursued in terms of section 189A(13). Furthermore, none of the remedies provided for in section 189A(13)(a) - (c) are available to the individual applicants, having been dismissed as far back as October 2018 and the only remaining remedy is that of compensation. The position is clear: Disputes about procedural fairness have been removed from the adjudicative reach of the Labour Court and may no longer be referred to the Labour Court as a distinctive claim or cause of action that a dismissal, on the basis of operational requirements, was procedurally unfair. For these reasons, this Court has no jurisdiction to adjudicate the Applicant’s claim for procedural unfairness. procedurally unfair and compensation JS316/19 Phaladi v Afri Guard (Pty) Ltd (JS316/19) [2023] ZALCJHB 326 (20 November 2023) "[28] In Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk [[2020] ZALAC 4; [2020] 6 BLLR 549 (LAC); (2020) 41 ILJ 1360 (LAC).], the LAC reiterated that an employer must follow a fair procedure in dismissing employees for operational requirements, and that the failure to do so exposes the employer to pay a penalty in the form of a solatium. It was further added that the determination of the quantum of compensation requires the court to apply a discretion taking into account a variety of factors, including the extent of the deviation from a fair procedure; the employee’s conduct; the employee’s length of service; and the anxiety and hurt caused to the employee as a consequence of the employer not following a fair procedure. It was however added that to the extent that an award of compensation must be “just and equitable in all the circumstances”, the Court ought to take into account the interests of both parties[11]. [29] In this case, although the Court ought not involve itself in an exercise of conjecture related to the proximity of the appointment of Sibeko in relation to the issuing of the notice in terms of section 189(3) of the LRA, it has been already stated that there was no discernible evidence that the respondent had engaged with the applicant in any meaningful consultation process prior to 7 to her termination on 7 January 2019. [30] Given the nature of consultation processes and the effects of a retrenchment, the Court cannot simply rely on the evidence of van Loggenberg that any such meaningful consultations were held, especially in view of the absence of any documentary evidence that demonstrates that indeed such consultations were held." [31] In considering compensation as a result of these procedural lapses, it is taken into account that (i) the applicant would not ordinarily have been entitled to severance pay in view of the provisions of section 41(4) of the BCEA and further based on the contents of the notice of termination to which she had attached her signature; (ii) that she was served with a section 189(3) notice at the time that she was due to take study leave; (iii) that there was no history of poor performance or besmirched disciplinary record; and (iv) that she is as at the time of this hearing still unemployed, had to rent out her property and stay in a back room, and is financially indebted, which invariably causes her anxiety and hurt. In the light of these considerations, and having further taken account of what is in the interests of both parties, it is determined that compensation equal to four months’ salary is deemed to be just and equitable in the circumstances. bumping forms an integral part of the application of LIFO. JA100/23 Fischer Tube Technik SA v Bayene and Another (JA100/23) [2024] ZALAC 25; (2024) 45 ILJ 1804 (LAC) (21 May 2024) "14] In South African law, bumping forms an integral part of the application of LIFO.[7] While there is no absolute obligation on an employer applying LIFO to bump, it is a matter that ought properly to be canvassed during the consultation process when LIFO is agreed. Indeed, it is not open to an employer to contend that employees cannot raise the issue of bumping only because they failed to do so during the consultation process. In General Food Industries Ltd t/a Blue Ribbon Bakeries v Food & Allied Workers Union & others[8], this Court said the following: ‘Counsel’s submission is that, if a union has failed to raise bumping or indeed any alternative measure to retrenchment during consultation, it is precluded from raising it to challenge the fairness of the dismissal at trial… In my judgment, the only conceivable legal basis for such a submission would be an agreement or a waiver. If it were to be found that a union had agreed not to rely on a particular basis, eg bumping, to challenge the fairness of a dismissal or that it had waived its right to rely on a particular basis to challenge the fairness of a dismissal, it certainly would be precluded from raising such a basis at trial. I cannot see any other legal basis in the absence of a statutory provision.’ As Prof Le Roux observes, the ultimate responsibility for fairness remains with the employer.[9]" [16]...Although, as this Court observed in Karachi, vertical bumping is inevitably accompanied by a diminution in salary, bumping is a concept related to the employer’s organisational structure, and not the effect that placement in an alternative position may have on the salary of any employee who benefits from the application of bumping. To be clear, horizontal bumping is the placement of an employee within the organisational structure at the same or a similar level; vertical bumping is placement (usually) at a lower level. What terms and conditions attach to any form of bumping that is implemented is a separate matter, best dealt with in the consultation process. [17] What the applicable authorities[10] require is that an employer applying LIFO must raise and discuss the question of bumping with consulting parties during the consultation process. In the absence of any agreement on the issue, the employer must be in a position to justify its decision not to bump, or to bump either horizontally or vertically, within the selection pool that it has defined. Ultimately, any requirement to bump is a matter of fairness, both to the employer (who faces the disruptive consequences of bumping), the employee selected for retrenchment (whose job security is at risk in the absence of bumping) and the displaced employee (whose job security is equally prejudiced on account of the application of bumping). "...A different approach was later adopted in BMD Knitting Mills (Pty) Ltd v SA Clothing & Textile Workers Union[13] where Davis AJA rejected the test for fairness predicated on the approach to judicial review of administrative action and said the following:[14] ‘The word ‘fair’ introduces a comparator, that is a reason which must be fair to both parties affected by the decision. The starting-point is whether there is a commercial rationale for the decision. But, rather than take such justification at face value, a court is entitled to examine whether the particular decision has been taken in a manner which is also fair to the affected party, namely the employees to be retrenched. To this extent the court is entitled to enquire as to whether a reasonable basis exists on which the decision, including the proposed manner, to dismiss for operational requirements is predicated. Viewed accordingly, the test becomes less deferential and the court is entitled to examine the content of the reasons given by the employer, albeit that the enquiry is not directed to whether the reason offered is the one which would have been chosen by the court. Fairness, not correctness, is the mandated test.’ " "[40] In SA Transport & Allied Workers Union v Old Mutual Life Insurance Co SA Ltd,[15] the Labour Court said the following:[16] ‘…[A]s stated in BMD Knitting Mills, the court is entitled to look at the content of the reasons given to ensure that they are neither arbitrary nor capricious and are indeed aimed at a commercially acceptable objective. The second leg of the enquiry is directed at the investigation of the proportionality or rationality of the process by which the commercial objectives are to be achieved. Thus, there should be a rational connection between the employer’s scheme and its commercial objective, and through the consideration of alternatives an attempt should be made to find the alternative which least harms the rights of the employees in order to be fair to them. The alternative eventually applied need not be the best means, or the least drastic alternative. Rather it should fall within the range of reasonable options available in the circumstances allowing for the employer’s margin of appreciation to the employer in the exercise of its managerial prerogative. The formulation of the test in this way adds nothing new. It simply synthesises what has already been said in Disreto and BMD Knitting Mills.’ " substance JA 130/22 National Union of Food Beverage Wine Spirits and Allied Workers v Coca Cola Beverages South Africa (Pty) Ltd (JA 130/22) [2024] ZALAC 26 (27 May 2024) [21...There was thus a commercial rationale for the retrenchments. The Labour Court considered that it was not for the Court to determine whether the decisions made by CCBSA were correct – the test to be applied was whether the solution adopted by CCBSA was fair and commercially rational. To the extent that the union had argued that CCBSA erred in restructuring only the positions of merchandisers and pre-sellers, the Court held that for it to second-guess CCBSA’s decision in these circumstances would be to apply a test of correctness.... [39] In the case of a dismissal based on an employer’s operational requirements, there must necessarily be some objective link between the dismissals and some economic, technological or similar need on the part of the employer. This Court has held that while employers have the prerogative to restructure their operations to maximise profits and operational efficiency, the courts do not have to accept the employer’s proffered rationale at face value, nor do the courts defer to employers. Earlier decisions by this Court limited intervention to those instances where the employer was unable to demonstrate that the ultimate decision arrived at by the employer was not genuine, or was merely a sham, or put in a positive sense, that the dismissal was operationally and commercially justifiable on rational grounds. On this approach, the Court’s function is not to decide whether the employer’s decision was the best decision in the circumstances; rather, the Court’s enquiry is limited to whether it was a rational commercial or operational decision, properly taking into account what emerged during the consultation process.[12] "...A different approach was later adopted in BMD Knitting Mills (Pty) Ltd v SA Clothing & Textile Workers Union[(2001) 22 ILJ 2264 (LAC) (BDM). For a discussion on the jurisprudential evolution of the test for substantive fairness, see R le Roux ‘Retrenchment Law in South Africa’, LexisNexis at pp 191-198.] where Davis AJA rejected the test for fairness predicated on the approach to judicial review of administrative action and said the following:[14] ‘The word ‘fair’ introduces a comparator, that is a reason which must be fair to both parties affected by the decision. The starting-point is whether there is a commercial rationale for the decision. But, rather than take such justification at face value, a court is entitled to examine whether the particular decision has been taken in a manner which is also fair to the affected party, namely the employees to be retrenched. To this extent the court is entitled to enquire as to whether a reasonable basis exists on which the decision, including the proposed manner, to dismiss for operational requirements is predicated. Viewed accordingly, the test becomes less deferential and the court is entitled to examine the content of the reasons given by the employer, albeit that the enquiry is not directed to whether the reason offered is the one which would have been chosen by the court. Fairness, not correctness, is the mandated test.’ " "[40] In SA Transport & Allied Workers Union v Old Mutual Life Insurance Co SA Ltd,[[2005] ZALC 50; (2005) 26 ILJ 293 (LC).] the Labour Court said the following:[16] ‘…[A]s stated in BMD Knitting Mills, the court is entitled to look at the content of the reasons given to ensure that they are neither arbitrary nor capricious and are indeed aimed at a commercially acceptable objective. The second leg of the enquiry is directed at the investigation of the proportionality or rationality of the process by which the commercial objectives are to be achieved. Thus, there should be a rational connection between the employer’s scheme and its commercial objective, and through the consideration of alternatives an attempt should be made to find the alternative which least harms the rights of the employees in order to be fair to them. The alternative eventually applied need not be the best means, or the least drastic alternative. Rather it should fall within the range of reasonable options available in the circumstances allowing for the employer’s margin of appreciation to the employer in the exercise of its managerial prerogative. The formulation of the test in this way adds nothing new. It simply synthesises what has already been said in Disreto and BMD Knitting Mills.’ " all posts affected- no selection criteria applicable JA 130/22 National Union of Food Beverage Wine Spirits and Allied Workers v Coca Cola Beverages South Africa (Pty) Ltd (JA 130/22) [2024] ZALAC 26 (27 May 2024) 22] In respect of the selection criteria adopted by CCBSA, the Labour Court considered that, since all of the merchandisers’ posts were no longer part of the new organisational structure, all of the merchandisers would be selected for retrenchment and the question of fair and objective selection criteria thus did not arise. [46] This is not one of those case where an employer restructures its business and then invites existing employees in a competitive process to apply for positions in the new structure, and where non-placement becomes the criterion for retrenchment.[18] In those cases, this Court has held that the placement process and in particular, decisions on placement, must meet the objective standard of fairness. In respect of the redundant pre-sellers this is a case, no more and no less, where alternative employment in the form of opportunities within the organisation were drawn to the attention of employees already selected for retrenchment on the basis of agreed criteria, and where they were free to seek appointment to those positions. An employee seeking to claim an unfair retrenchment in these circumstances must at least plead the fact of the exclusion and the grounds on which the employee asserts that the exclusion was unfair. s 187 (1) (c) JA 130/22 National Union of Food Beverage Wine Spirits and Allied Workers v Coca Cola Beverages South Africa (Pty) Ltd (JA 130/22) [2024] ZALAC 26 (27 May 2024) National Union of Metalworkers of SA & others v Aveng Trident Steel (A division of Aveng Africa (Pty) Ltd) & another[2020] ZACC 23; (2021) 42 ILJ 67 (CC) (Aveng Trident).[2020] ZACC 23; (2021) 42 ILJ 67 (CC) (Aveng Trident). [67] A careful analysis of the wording of the section, alongside the explanatory memorandum, demonstrates that the interpretation contended for by NUMSA is incongruous with the section. What that contention boils down to is that an employer considering operational requirements may never resort to retrenchments without contravening the section. This, in my view, would undermine an employer’s right to fair labour practices as entrenched in s 23 (1) of the Constitution, since it would take away its right to resort to retrenchments where operational requirements render them necessary. [30] Put another way, it is not an automatically unfair dismissal for an employer to dismiss an employee who refuses to accept an offer of alternative employment made in the context of a retrenchment process, where the reason for dismissal is the employer’s operational requirements. As the Constitutional Court observed,[8] it does not necessarily follow that, simply because a proposed change to terms and conditions of employment is refused by an employee and a dismissal ensues thereafter, the reason for dismissal is the refusal to accept the proposed change. [31] The sole enquiry under s 187 (1) (c) therefore is into the reason for dismissal and specifically, whether the reason for dismissal was a refusal by the employee to accept a demand made by the employer concerning terms and conditions of employment. On the approach endorsed in the first judgment in the Constitutional Court, the factual and legal causes of the dismissal ought to be determined by asking first whether the dismissal would have occurred had the employees not refused the demand (a ‘but for’ test), and secondly, whether the refusal was the main, dominant or proximate cause of the dismissal.[9] "[32] The application of these principles assumes that a proper factual foundation for the application of s 187 (1) (c) has been laid. An employee claiming to have been dismissed for a reason that is automatically unfair is required to adduce some evidence to establish at least on a prima facie basis that a reason for dismissal that is automatically unfair is the main for dismissal. In Kroukam v SA Airlink (Pty) Ltd[ [2005] ZALAC 5; [2005] 12 BLLR 1172 (LAC) at para 28.] Davis AJA said: ‘In my view, s 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in s 187 for constituting an automatically unfair dismissal.’" 189A application J 52/2024 Solidarity obo Putter v Anglo Black(Pty) Ltd and Another (J 52/2024) [2024] ZALCJHB 107; (2024) 45 ILJ 1084 (LC); (2024) 45 ILJ 1108 (LC) (4 March 2024) [13] The Applicant approached this Court in terms of the provisions of section 189A(13), challenging the procedural fairness of Mr Putter’s dismissal. The relief sought is inter alia an order to declare that the Respondent has acted in a procedurally unfair manner when it dismissed Mr Putter for operational reasons, that the Respondent be ordered to reinstate Mr Putter and to initiate and continue with a meaningful joint consensus-seeking process as envisaged by section 189 of the LRA, alternatively that Mr Putter be compensated for his procedurally unfair dismissal. "21] The Constitutional Court held that the LRA specifically provides for a dispute-resolution mechanism designed to deal with procedural flaws that arise during or immediately after the consultation process and to allow the Labour Court, acting as the guardian of the process, to set the consultation process back on track. The legal principles that emerged from Steenkamp II are clear and apply to all retrenchments in terms of section 189A of the LRA. " [25] The primary purpose of section 189A(13) is to allow for early corrective action “to get the retrenchment process back onto a track that is fair”. Paragraphs (a)-(d) establish a hierarchy of appropriate relief and only where it is not appropriate to grant an order in terms of paragraphs (a)-(c) may an order for compensation be granted in terms of paragraph (d). [75] In the circumstances, this Court has no jurisdiction to lift the moratorium in accordance with section 133(1)(b) and effectively grant the Applicant leave to litigate against the Respondent or BRP during the business rescue proceedings. However, to the extent that this court has jurisdiction to deal with Mr Putter’s claim in terms of section 189A(13) of the LRA, the application stands to be struck off the roll and could only be re-enrolled with the leave granted in terms of section 133(1)(a) or (b), alternatively after the conclusion of the business rescue process. Business rescue J 52/2024 Solidarity obo Putter v Anglo Black(Pty) Ltd and Another (J 52/2024) [2024] ZALCJHB 107; (2024) 45 ILJ 1084 (LC); (2024) 45 ILJ 1108 (LC) (4 March 2024) " [34] Once business rescue proceedings commence, there is an automatic and general moratorium on legal proceedings or executions against the company.[9]" [37] The Companies Act does not define the phrase “legal proceedings” as provided for in section 133, however, academics have expressed the view that the clear intention of the provision is to “cast the net as wide as possible in order to include any conceivable type of action against the company…”[10] 42] Section 210 of the LRA provides that, if any conflict arises relating to matters dealt with in the LRA and the provisions of any other law, save for the Constitution, the provisions of the LRA will prevail. "[47] Shortly after Burba was decided, the Labour Court in National Union of Metal Workers of South Africa obo Members v Motheo Steel Engineering[ [2014] ZALCJHB 315 (7 February 2014) at para 1.] (Motheo Steel) was again approached to determine whether an application brought against a company in business rescue was stayed in accordance with section 133. The Court (per Lagrange J) held that: ‘In terms of s 210 of the Labour Relations Act, 66 of 1995 a matter dealt with in that Act prevails over the provisions of any other law save the Constitution or any Act expressly amending it. I am satisfied that s 133(1) of the Companies Act 71 of 2008 does not expressly amend the provisions of the LRA, and insofar as it might otherwise prevent legal proceedings without the leave of a court or the relevant business rescue partner, it does not prevent the applicant bringing this application.’ [48] In effect, in Motheo Steel the Court accepted that the provisions of section 133 did not prevent the applicant from approaching the Labour Court on application." [56] In NUMSA and another v South African Airways SOC Ltd and others[[2021] ZALCJHB 6 (LC); 2021 (4) SA 575 (LC) at paras 16 – 17.] (SAA), the Labour Court per Van Niekerk J (as he was then) considered the effect of the section 133 moratorium on legal proceedings. In SAA, the BRPs had not been approached for consent to uplift the moratorium, the High Court had not been approached to grant leave to that effect and the notice of motion in the proceedings did not seek an order uplifting the moratorium. [57] In summary: The position accepted by this Court is that there is no conflict between the Companies Act and the LRA that would bring section 210 of the LRA into play. Chapter 6 of the Companies Act does not oust the jurisdiction of the Labour Court where this Court has jurisdiction in respect of claims arising under the LRA as it does no more than impose a general moratorium on legal proceedings against a company in business rescue. Employees remain at liberty to institute proceedings in the Labour Court against an employer that has been placed in business rescue and in respect of which this Court has jurisdiction, but they must do so subject to section 133 of the Companies Act. [60]...The current issue does not relate to any unpaid amount of remuneration or reimbursement for expenses or any other amount owed relating to employment that becomes due and payable during a business rescue process. It relates to procedural unfairness and this Court’s jurisdiction to ensure compliance with the general scheme of the LRA. [69] Chapter 6 of the Companies Act does not oust the jurisdiction of the Labour Court where this Court has jurisdiction in respect of claims arising under the LRA as it does no more than impose a general moratorium on legal proceedings against a company in business rescue. Employees remain at liberty to institute proceedings in the Labour Court against an employer that has been placed in business rescue and in respect of which this Court has jurisdiction, but they must do so subject to section 133 of the Companies Act. [75] In the circumstances, this Court has no jurisdiction to lift the moratorium in accordance with section 133(1)(b) and effectively grant the Applicant leave to litigate against the Respondent or BRP during the business rescue proceedings. However, to the extent that this court has jurisdiction to deal with Mr Putter’s claim in terms of section 189A(13) of the LRA, the application stands to be struck off the roll and could only be re-enrolled with the leave granted in terms of section 133(1)(a) or (b), alternatively after the conclusion of the business rescue process. placement of employees as alternatives, whether the employees ought properly to have automatically filled these vacancies. JA111/2023 South African Commercial Catering and Allied Workers Union obo Thage and Others v Connect Financial Services (Pty) Ltd (JA111/2023) [2024] ZALAC 36; [2024] 11 BLLR 1130 (LAC); (2024) 45 ILJ 2536 (LAC) (5 August 2024) [13] The Labour Court found that the respondent had participated in the facilitated consultation meetings in good faith and complied with the agreement reached in the consultation meeting of 6 August 2020, that a distinction would be drawn between the 50 vacancies in the credit division which arose in the course of restructuring, and vacancies in other divisions in respect of which employees were required to apply. The Court found that employees were invited to apply for vacancies in the call centre, but that they did not do so given that it was not in dispute that the positions were at a much lower level and salary than those in the credit division “and that [SACCAWU’s] members were not interested in applying for them”. As a result, the Court found that the vacancies were not an alternative to avoid retrenchment. The Court found that in any event, the issue was res judicata as it had been determined as a procedural one by Mahosi J in the section 189A(13) application. 17] The central question raised by the appellants for determination in this appeal is whether the retrenchment of the employees was substantively unfair given that, prior to the dismissal of the employees, the respondent was aware of and later advertised 25 vacancies in its call centre, which vacancies were not considered as an alternative to the retrenchment. 25] In finding the dismissal of the employees substantively fair, the Labour Court did not err. The appeal cannot therefore succeed and, having regard to considerations of law and fairness, no costs order is warranted. distinction between procedural and substantive fairness JA111/2023 South African Commercial Catering and Allied Workers Union obo Thage and Others v Connect Financial Services (Pty) Ltd (JA111/2023) [2024] ZALAC 36; [2024] 11 BLLR 1130 (LAC); (2024) 45 ILJ 2536 (LAC) (5 August 2024) [21] As a legal doctrine, res judicata bars continued litigation on the same case, on the same issues, between the same parties.[4] The underlying rationale of the doctrine is to give effect to the finality of judgments, limit needless litigation and ensure certainty on matters already decided by the courts.[5] Mahosi J was called upon by the appellants to adjudicate only the claim of procedural unfairness. Thereafter, the appellants challenged the substantive fairness of the retrenchments in the Labour Court. While a neat distinction between procedural and substantive fairness is not always without difficulty given that the two enquiries are often integrally connected, there can be little doubt that the application before Mahosi related to issues of procedural fairness, whereas the Labour Court judgment on appeal to this Court was concerned with the substantive fairness of the dismissals. This constituted a different cause of action, even if some of the same facts placed before Mahosi J were relied upon and the doctrine of res judicata therefore does not apply. Focused on inherently subjective considerations absent agreement – No on-the-job evaluation performed – Nature of questions bore no real correlation to objectives – Unfair to employees – Problematic formulation of questions – Failed to prove employees were selected based on fair and objective selection criteria PA3/23 Umicore Catalyst South Africa (Pty) Ltd v National Union of Metalworkers of South Africa and Others (PA3/23) [2024] ZALAC 37; [2024] 11 BLLR 1138 (LAC); (2024) 45 ILJ 2545 (LAC) (29 August 2024) [14]...Umicore submitted, in essence, that the selection criteria implemented, which involved a combination of LIFO and skills, were fair and objective, both at the level of form and at the level of formulation and application of selection criteria. [18] Put differently, an employer who does not use agreed selection criteria to select the employees to be dismissed may not depart from ‘fair and objective’ selection criteria.[5] To do so would render the dismissals substantively unfair.[6] 19] The onus is on the employer to prove that there was a fair reason to dismiss the selected employees.[7] This raises the issue of the basis for selection. Selection criteria that are generally accepted to be fair include length of service, skills and qualifications. While the use of LIFO generally satisfies the test, there are instances where the LIFO principle, or other criteria, require adaptation.[8] The Code makes mention of ‘the retention of employees based on criteria mentioned above which are fundamental to the successful operation of the business’ as an example, adding that such exceptions should be treated with caution.[9] "[20]...The key question remains whether Umicore has discharged the onus of proving that the behavioural assessment was a fair and objective component of the process to select employees for retrenchment. " "[24] Firstly, by using the questionnaire as the basis for the selection, Umicore decided to focus on the employees’ personality characteristics, including initiative, enthusiasm and determination, instead.[14] These are inherently subjective considerations and, absent agreement, ought not to have been included in the circumstances.[15] " Mdleleni and Others v Faurecia Emission Control Technologies (Pty) Ltd Unreported Labour Court decision (Cape Town) (Case Nos C790/19 and C1099/18). The method of assessment encouraged multi-skilling instead of evaluating the competency of an artisan in the specific field for which they were qualified. The rating process was akin to a performance appraisal. It was completed by department managers or team leaders without any input from employees, who were restricted to querying the assessment after the fact. [34] As explained, the evidence before the Labour Court in the current matter was of a vastly different texture. Umicore has failed to prove that the employees were selected based on fair and objective selection criteria so that the appeal against the order of the Labour Court must be refused. General Food Industries Ltd t/a Blue Ribbon Bakeries v FAWU & others [2004] 9 BLLR 849 (LAC); (2004) 25 ILJ 1655 (LAC) at para 36. "‘I can see no justification for an employer to retrench an employee who has served him loyally for, for example 20 years, and retain one who has been employed for only a few months to perform work that the one with a longer service period can also perform. Certainly in this case nothing that was said by the appellant or its witnesses seems to me to justify such conduct. On the contrary, allowing that approach in the absence of a really sound reason or explanation could lead to abuse. An employer who wants to get rid of an employee (but lacks legitimate grounds to do so) could transfer such employee to a branch which he knows is likely to embark upon a retrenchment exercise in due course if he thought that such employee would be a likely candidate for retrenchment in that branch on the basis of LIFO which is applied only the affected branch. In that way the employee could be selected for retrenchment at that branch and be retrenched despite the fact that in his old branch there are employees who have shorter service periods that him who perform work that he can perform. Obviously, if it was to be shown that the employer transferred the employee in order to get such employee retrenched and not because of any genuine reason, the dismissal would be unfair. However, in my view there would be cases in which the employer could give a reason that appears to be genuine. That is the case that gives me grave concerns …’ " Union did not refer matter to conciliation before referring it to Labour Court – Proper interpretation of section is that, notwithstanding facilitation process, referral to conciliation is mandatory – Labour Relations Act 66 of 1995, s 189A(7)(b)(ii). JA109/23 National Union of Metalworkers of South African obo Members v SAA Technical SOC Ltd (JA109/23) [2024] ZALAC 41; (2024) 45 ILJ 2524 (LAC) (10 September 2024) [50] In short: facilitation and conciliation are two different processes. Facilitation happens pre-dismissal, as part of the consultation process with a view to avoid retrenchment and to ensure compliance with the provisions of section 189(3) of the LRA. When the facilitation process happens, there exists no dispute, but rather a contemplation of dismissal based on the employer’s operational requirements. managerial prerogative JS475/2022 Ndaba v South African Mint (Rf) (Pty) Ltd (JS475/2022) [2024] ZALCJHB 445 (4 November 2024) " [58] In SA Transport & Allied Workers Union v Old Mutual Life Assurance CO SA Ltd[18], this Court (per Murphy AJ, as he then was) recognised that the notion of proportionality ought to form part of the assessment of the substantive fairness of a dismissal for operational requirements:[[2005] ZALC 50; (2005) 26 ILJ 293 (LC) para 85] ‘The test formulated by the legislature in the 2002 amendments [to s 189 of the LRA] harkens back to the principle of proportionality or the rational basis test applied in constitutional and administrative adjudication in other jurisdictions. As such, the test involves a measure of deference to the managerial prerogative about whether the decision to retrench is a legitimate exercise of managerial authority for the purpose of attaining a commercially acceptable objective. Such deference does not amount to an abdication, and as stated in BMD Knitting Mills (Pty) Ltd, the court is entitled to look at the content of the reasons given to ensure that they are neither arbitrary nor capricious and are indeed aimed at a commercially acceptable objective. The second leg of the enquiry is directed at the investigation of the proportionality or rationality of the process by which the commercial objectives are to be achieved. Thus, there should be a rational connection between the employer's scheme and its commercial objective, and through the consideration of alternatives an attempt should be made to find the alternative which least harms the rights of the employees in order to be fair to them. The alternative eventually applied need not be the best means, or the least drastic alternative. Rather it should fall within the range of reasonable options available in the circumstances allowing for the employer's margin of appreciation to the employer in the exercise of its managerial prerogative. The formulation of the test in this way adds nothing new. It simply synthesises what has already been said in Discreto and BMD Knitting Mills. The two decisions are not entirely at odds with one another. They are simply elucidations of the governing principle that the decision to dismiss must be operationally justifiable on rational grounds, which permits some flexibility in the standard of judicial scrutiny, depending on the context.’ (Own emphasis.)" dismissal for operational reasons was serious corruption allegations JS895/19 Lekalake v Eoh Mthombo (Pty) Ltd (JS895/19) [2025] ZALCJHB 62 (21 February 2025) Resulted in respondent losing government contracts and closure of a division – Retrenchment would not have occurred but for allegations – Reasons provided were not genuine operational requirements – Dismissal substantively unfair – Retrospective reinstatement granted “An employer, who senses that it might have to retrench employees in order to meet operational objectives, must consult with employees likely to be affected (or their representatives) at the earliest opportunity in order to advise them of the possibility of retrenchment and the reasons for it. The employees or their representatives must then be invited to suggest ways of avoiding terminations of employment, and should be placed in a position in which they are able to participate meaningfully in such discussions. The employer should in all good faith keep an open mind throughout and seriously consider proposals put forward. The final decision will, however, remain with the employer.”[National Union of Metalworkers of SA v Atlantis Diesel Engines (Pty) Ltd (1993) 14 ILJ 642 (LAC) at 649J-650C.] [40] Dismissal for operational requirements as contemplated in section 189 of the LRA provides a safeguard to employers to engage in retrenchments of employees in instances of economic downturn, structural and technical reasons or any other reason prescribed in the LRA. In essence, section 189 of the LRA serves as a statutory provision that sets out commercial circumstances that warrant the dismissal of employees solely for operational requirements. "[41] However, in the implementation of section 189 retrenchments, fairness to both the employers and employees is paramount as per the exposition of the Labour Appeal (LAC) Court decision in SACTWU and Others v Discreto (A Division of Trump and Springbok Holdings)[3] where is was held: “As far as retrenchment is concerned, fairness to the employer is expressed by the recognition of the employer’s ultimate competence to make a final decision on whether to retrench or not…For the employee fairness is found in the requirement of consultation prior to a final decision on retrenchment. This requirement is essentially a formal or procedural one, but, as is the case in most requirements of this nature, it has a substantive purpose. That purpose is to ensure that the ultimate decision on retrenchment is properly and genuinely justifiable by operational requirements or, put another way, by a commercial or business rationale… It is important to note that when determining the rationality of the employer’s ultimate decision on retrenchment, it is not the court’s function to decide whether it was the best decision under the circumstances, but only whether it was a rational commercial or operational decision, properly taking into account what emerged during the consultation process.”" [53] If serious corruption allegations led to the downfall of the Public Sector Division of EOH which culminated in the retrenchment of Mr Lekalake, then did EOH have any justifiable reason in law or in the LRA to justify the dismissal of Mr Lekalake for operational requirements? A stern no is the answer to that question. As stated in Telkom[6], the moment the employer fails to prove and justify that it instituted the section 189 process for a fair reason, then re-instatement becomes the prime remedy in the circumstances. In the conspectus of the facts of this matter, it is apt to find that the re-instatement of Mr Lekalake becomes unavoidable like the air we breathe. selection criteria JS863/21 LEWUSA obo Maesela and Others v RGM Cranes (Pty) Ltd (JS863/21) [2025] ZALCJHB 173 (29 April 2025) [89] Given all of the above, especially taking into consideration that other employees were performing the duties of the applicants, that no fair and objective selection criteria was followed by the respondent, the failure by the respondent to consider alternatives to retrenchment and the respondent simply not informing the applicants about alternatives at RGM Rustenburg. Adding to this, the fact that when the new structure was drafted in August 2020, the applicants were already not part of the new structure despite the fact that the retrenchment process was considered at the end of October 2020, the fact that the applicants were already last at work 30 June 2020 and 26 May 2020 respectively, failure by the respondent to disclose to the trade union and the applicants why the measures previously implemented were not working ( it was not enough for the respondent to mentioned the previous measures taken). All this illustrates that there was no genuine and justifiable reason to dismiss the applicants based on operational requirements. The respondent had no intention to participate in a meaningful joint consensus-seeking process in an attempt to avoid or minimise the retrenchment. 1. The dismissal of the applicants was substantively and procedurally unfair. what 'bumping' is JS195/21 De Weijer v Babcock Africa Services (Pty) Ltd (JS195/21) [2025] ZALCJHB 193 (19 May 2025) "[77] In Amalgamated Workers Union of SA v Fedics Food Services[25], the Court considered bumping and held that: ‘[3] This brings me to the question of precisely what 'bumping' is. M H Cheadle 'Retrenchment: The New Guide-lines ' (1985) 6 ILJ 127 at 137, says the following: “The LIFO principle is to retain long-serving employees at the expense of those with shorter service in like or less skilled categories of work. Accordingly, LIFO would not apply to employees in a different grade if the longer-serving employee could not do the work of the employee with shorter service in that grade. The principle, if not qualified by agreement, should apply throughout the establishment or the collective bargaining unit provided that it falls within like or lesser categories of work. In other words, should an employee with long service be made redundant in one department he should be transferred to a similar post elsewhere in the establishment, even though it may be occupied by an employee with shorter service. Should there be no such post, the practice is to offer the longer-serving employee a less skilled position occupied by employees with shorter service. This procedure is graphically called ""bumping"". In short, one ""bumps"" sideways and down. The restriction of this principle to departments can lead to abuse. Long-serving employees can be transferred to departments where redundancy is expected and thereby retrenched at a later stage. Such a practice would clearly subvert the objective application of the principle.” [4] 'Bumping' as a practice has been accepted in the Labour Appeal Court. See Reckitt &Colman (SA) (Pty) Ltd v Bales (1994) 15 ILJ 782 (LAC); [1994] 8 BLLR 32 (LAC), where the following is said, at 46G-H: “Whilst every case must be considered on its merits, there is no immutable rule that in applying the LIFO principle, an employee should not be downgraded. Indeed as appears from the article by Cheadle ""Retrenchment: The New Guide-lines"" (1985) 6 ILJ 127 at 137-8, in reallocating of posts, as between employees on the LIFO principle, there may be a process of ""bumping"" both sideways and down. This is sometimes also referred to as horizontal and vertical ""bumping"". See Contemporary Labour Law vol 2 no 1 (August 1992) at 8-10 and vol 2 no 8 (March 1993) at 1991.”’" "[78] In respect of bumping, the LAC found in Porter Motor Group v Karachi[26] (Karachi) that: ‘[15] The Code of Good Practice on dismissal in schedule 8 to the Act deals with selection criteria and lists length of service, skills and qualifications as generally accepted considerations. Selection criteria laid down by case law, in addition to the three factors mentioned, for determining which employees are to be retrenched, would include the employee's competence and merit; technical knowledge or experience; conduct; service record; age; and gender. [16] Early mention of bumping in South African labour law comes from Professor H Cheadle's article 'Retrenchment: The New Guide-lines' (1985) 6 ILJ 127 at 137, and this article has been considered in a number of decisions and has received some academic attention. See inter alia Reckitt & Colman (SA) (Pty) Ltd v Bales (1994) 15 ILJ 782(LAC), Amalgamated Workers Union of SA v Fedics Food Services (1999) 20 ILJ 602 (LC), SACCAWU & others v Wimpy Aquarium [1998] 9 BLLR 965 (LC) at 969E-F, Unilever SA (Pty) Ltd v Salence [1996] 5 BLLR 547 (LAC) at 557, Shangase & others v BKB Ltd (1999) 20 ILJ 2475 (CCMA), Fisher v Sylko Paper Co (1998) 8 Arb 5.2.2, Nyathi & others v Queensburgh Equipment Rental NHN 11/2/3939 (1992) (IC), Professor Alan Rycroft's article 'Bumping as an Alternative to Retrenchment' (1999) 20 ILJ 1489 and Le Roux & Van Niekerk The SA Law of Unfair Dismissal . In determining a fair selection of employees for retrenchment bumping has often been implemented and the following principles have developed in relation thereto. This does not purport to be an exhaustive list and merely catalogues the rules laid down which are relevant to this case. (1) It should be reiterated once again that fairness is not a one-way street. It must accommodate both employer and employee. Section 189(2) of the Act requires both parties to attempt to reach consensus on alternative measures to retrenchment, so there is a duty on an employee as well to raise bumping as an alternative. An employer is obliged to consult with an employee about the possibility of bumping. (2) Bumping is situated within the 'last in first out' (LIFO) principle which is itself rooted in fairness for well-established reasons. Longer serving employees have devoted a considerable part of their working lives to the company and their experience and expertise are an invaluable asset. Their long service is an objective tribute to their skills and industry and their avoidance of misconduct. In the absence of other factors, to be enumerated hereinafter, their service alone is sufficient reason for them to remain and others to be retrenched. Fairness requires that their loyalty be rewarded. (3) The nature of bumping depends on the circumstances of the case. A useful distinction is that of dividing bumping into horizontal and vertical displacement. The former assumes similar status, conditions of service and pay and the latter any diminution in them. (4) The first principle is well established, namely that bumping should always take place horizontally, before vertical displacement is resorted to. The bumping of an individual, in the absence of the other relevant factors, seldom causes problems and the fact of longer service establishes the inherent fairness thereof. Vertical bumping should only be resorted to where no suitable candidate is available for horizontal bumping. Where small numbers are involved the implementation of horizontal or vertical bumping should present few problems. (5) Where large-scale bumping, sometimes referred to as 'domino bumping', necessitates vast dislocation, inconvenience and disruption, consultation should be directed to achieving fairness to employees while minimizing the disruption to the employer. Examples of disruption include difficulties caused by different pay levels, client or customer reaction to a replacement of employees and staff incompatibility. In evaluating the competing interests of the employer and the affected employees the consulting parties should carry out a balancing exercise. Where minimal benefits accrue to employees, while vast inconvenience is the lot of employers, fairness requires that fewer employees should move. (6) There will always be geographical limitations to bumping in that fairness will require that limits be placed on how far an employee is expected to move to bump another. Although prejudice to the employer in long-distance relocation cannot be excluded, in practice this will be rare. Generally speaking it is the employee who will suffer as a result of being removed from a cultural and social environment he or she has become accustomed to. Second guessing the desires of employees is undesirable; if they are happy to translocate then bumping should take place whatever the distances involved. (7) The pool of possible candidates to be bumped should be established and the circumference thereof will depend on the mobility and status of the employees involved. The managerial prerogative entails moving employees to the best advantage of a company within the parameters of its activities, national or international; fairness requires that the same circumference should define the limits of potential candidates to be bumped. The career path of the employee in the company will often be a useful indication of scale of mobility. (8) The independence of departments as separate business entities may be relevant but the argument that a company's departments are managed separately should be strictly scrutinized. Even if there is no past practice of transferring between branches or departments, the employer must consider interdepartmental bumping unless it is injurious to itself and to other employees. (9) Bumping does not apply to employees in a different grade if the longer serving employee cannot do the work of the employee with shorter service in that grade. This limitation applies most frequently where competence, technical or professional knowledge or experience and specialised skills are involved. Where the necessity arises of retraining those, who are transferred, this should be carried out, unless it places an unreasonable burden on the employer. (10) The status of the post into which an employee is bumped is relevant, as the employer's prerogative to choose someone of managerial/supervisory level should be respected. Management concerns that downgrading an employee will be demoralizing will not justify a decision not to bump downwards where the employee is prepared to accept downgrading. On the other hand the unwillingness of the affected employee to accept a lower wage may justify not bumping.’ " [79] In Mtshali v Bell Equipment[27] (Mtshali), the LAC held that LIFO (last in, first out) as a method of selection entails that employees are selected for retrenchment according to the period they have been with the employer. It simply means that employees who have served for a shorter period would be higher on the list of those likely to be retrenched. Although it has its own difficulties, LIFO is still regarded as the most objective and fair method of selecting employees. The LAC confirmed that bumping is situated within the LIFO principle. 80] This means that whenever LIFO is the agreed criterion, bumping must be applied as a selection criterion. "[87] In Karachi, the LAC confirmed that bumping does not apply to employees in a different grade if the longer serving employee cannot do the work of the employee with shorter service in that grade. This limitation applies most frequently where competence, technical or professional knowledge or experience and specialised skills are involved. [88] In my view, the same principle applies in casu." [145] The LAC in Karachi and Mtshali confirmed that an employer is obliged to consult with an employee about the possibility of bumping and that it is incumbent on an employer to consult on its application to determine whether its application would have been appropriate. It is not for an employer to decide unilaterally that it would not be appropriate to apply bumping. procedural fairness JS195/21 De Weijer v Babcock Africa Services (Pty) Ltd (JS195/21) [2025] ZALCJHB 193 (19 May 2025) [95] In my view, the pleaded challenge to procedural fairness is twofold – one is that there was no genuine consultation process and that he was presented with a fait accompli, and the second relates to the sharing of information, which deprived the Plaintiff of an opportunity to consult on certain aspects. I will deal with them in turn. [101] In the third consultation meeting of 28 September 2020, Mr Vaughan referred to the Plaintiff’s request for financial information, which was not given to him and said that ‘so the process has carried on and it is nearly, I think nearly at the end now. So the company feels that to show you all the financial information at this point is kind of irrelevant’. [103] Notwithstanding the efforts by the Defendant to paint a picture that the reason for retrenchment was not only for economic and financial reasons, but that it was also a restructuring exercise which had little to do with its financial position, I am of the view that the reason for retrenchment was indeed the poor economic environment and the financial challenges Babcock faced as a result thereof. [111] In casu, the Plaintiff did not refer a dispute to the CCMA in respect of the information he sought. [112] What seems clear is that, in terms of section 16, it is for a commissioner of the CCMA, and not for this Court, to determine disputes about what information is required to be disclosed in terms of section 16. Does this imply that it is not the function of this Court to determine whether the information concerned should have been disclosed and that, if the applicant was aggrieved in this regard, he was confined to his remedies as provided for in section 16 of the LRA? "[113] In Robbertze v Marsh SA[30], the Court held that: ‘[50] Section 189(3) casts a positive obligation on an employer contemplating a dismissal for reasons based on its operational requirements to disclose all relevant information. It is clear that compliance with the requirements of s 189 is highly material to, if not determinative of, the question as to whether a dismissal based on the employer's operational requirements is fair. (See eg Johnson & Johnson (Pty) Ltd v CWIU (1999) 20 ILJ 89 (LAC); [1998] 12 BLLR 1209 (LAC) at paras 26-31; Alpha Plant & Services (Pty) Ltd v Simmonds & others (2001) 22 ILJ 359 (LAC); [2001] 3 BLLR 261 (LAC) at paras 7-10.) It is the duty of this court to adjudicate disputes concerning the fairness of a dismissal based on the employer's operational requirements. If this court should find that relevant information required to be disclosed in terms of s 189(3) was not disclosed, it is in my view required to consider and determine whether such non-disclosure rendered the dismissal unfair, for example, on the basis that it prevented fair and adequate consultation. The fact that it was open to the employee to invoke the procedures contemplated in ss 16(6)-16(14) does not, in my view, deprive this court of the right, and indeed the obligation, to determine whether the non-disclosure of the information rendered the dismissal unfair.’" [115] If this Court finds that relevant information required to be disclosed in terms of section 189(3) was not disclosed, it is required to consider and determine whether such non-disclosure rendered the dismissal unfair, for example, on the basis that it prevented fair and adequate consultation. This Court must determine whether the non-disclosure of the information rendered the Plaintiff’s dismissal unfair. [119] The Defendant’s failure to make the detailed financial information available to the Plaintiff, in addition to what was provided to him for purposes of consultation, was not inconsistent with its obligations in terms of s 189(3) of the LRA. The Plaintiff was unable to show that the financial information that was provided to him was insufficient to allow a proper opportunity to consult. He requested more detailed information for other purposes. meaningful consultation JS195/21 De Weijer v Babcock Africa Services (Pty) Ltd (JS195/21) [2025] ZALCJHB 193 (19 May 2025) [120] The Plaintiff challenges the procedural fairness of his dismissal and claims that the consultation process was not a genuine process, as his retrenchment was a fait accompli. He testified that although there were four consultation meetings held, there was no genuine consultation, there was no meeting of the minds or consensus. [127] Section 189 of the LRA imposes a number of obligations in peremptory terms, for instance, the employer ‘must consult’, ‘must issue a written notice’ and that the employer and the other consulting parties ‘must’ engage in a meaningful joint consensus-seeking process. alternatives JS195/21 De Weijer v Babcock Africa Services (Pty) Ltd (JS195/21) [2025] ZALCJHB 193 (19 May 2025) "[135] The Plaintiff also took issue with the fact that he was not properly consulted in respect of alternatives. His case is that he was told that he would be retrenched, all his proposals were shot down, and the alternatives he proposed were not considered. [136] I already alluded to the fact that the alternatives referred to the available vacant positions and bumping." [145] The LAC in Karachi and Mtshali confirmed that an employer is obliged to consult with an employee about the possibility of bumping and that it is incumbent on an employer to consult on its application to determine whether its application would have been appropriate. It is not for an employer to decide unilaterally that it would not be appropriate to apply bumping. fait accompli JS195/21 De Weijer v Babcock Africa Services (Pty) Ltd (JS195/21) [2025] ZALCJHB 193 (19 May 2025) [149] I am also not convinced that the Plaintiff was met with a fait accompli and that the consultations that were held were superfluous. There was no convincing evidence placed before this Court to show that the Defendant approached the process with a predetermined outcome or that a decision was already taken, and that the Plaintiff was faced with a fait accompli. The mere fact that his name was included on a list of positions which may be affected and be made redundant is not sufficient to establish a fait accompli, nor is the fact that the Plaintiff was unable to come up with sufficiently persuasive arguments for the employer to change. "...In National Education Health and Allied Workers Union and others v University of Pretoria,[36] the LAC considered a matter where the employees challenged the fairness of their dismissals inter alia on the ground that their union was faced with a fait accompli by the time the consultation in terms of section 189 of the LRA commenced. were held that: ‘[51] Section 189 of the Act does envisage that the employer may come to the first consultation table with a proposal that can be said to be not only his preferred proposal but, indeed, one that he strongly views as the solution to the problem. The obligation placed upon the employer to consult only arises in terms of s 189(1) of the Act when a situation has been reached where he “contemplates dismissing one or more employees” for operational requirements. In other words, before he reaches such stage, he is under no obligation to consult and is within his rights to try and deal with the problem on his own with such assistance and advice as he may in his discretion feel he needs which need not be that of the consulting parties envisaged in s 189(1). This is because the employer is entitled to deal with the problems of his business without consulting the parties envisaged in s 189(1) as long as he is not contemplating the dismissal of any employees for operational requirements. It would be natural for him to form a view or even a strong view about one or other possible solution to the problem out of all those that he might have applied his mind to while trying to solve the problem before contemplating the dismissal. Section 189(1)(b), (c),(3)(c) and (g) refer to “employees likely to be affected.” The frequent reference in those provisions to “employees likely to be affected” is an indication that it is permissible for the employer to have already grappled with the problem to the extent that he has in mind “employees likely to be affected by the proposed dismissal.” [52] Section 189(3) requires the employer to disclose the reason for the proposed dismissals, the alternatives that he considered before proposing the dismissals and the reasons for rejecting each one of those alternatives, the number of employees likely to be affected and the categories in which they are employed, the time when or the period during which the dismissals are likely to take effect. The content of what s 189(3) requires the employer to disclose suggests quite clearly that the employer is allowed to initiate the consultation process after he has done a lot of work to try and resolve the problem on his own. He is permitted to have done so much work that – a) he is in a position to propose dismissal because in his view there are no other acceptable alternatives that can address the problem satisfactorily without dismissals. b) he has reasons for proposing dismissals as opposed to other alternatives. c) before proposing the dismissal, he has considered other alternatives and has rejected them. d) he has reasons for rejecting other alternatives and is ready to articulate them. Section 189 contemplates that, when the employer initiates the s 189 consultation process, he contemplates the dismissal of one or more of his employees for operational requirements; that is why already in paragraph (b), (c) and (d) of sec 189(1) there are references to “proposed dismissals”. So what s 189(1) contemplates is that the employer is already proposing a dismissal or dismissals when he initiates the s 189 consultation process. [53] The fact that s 189(3)(b) contemplates that, when the employer initiates the consultation process in terms of s 189(1) of the Act, he has already considered alternatives to dismissals which he has rejected for certain reasons and requires him to disclose the reasons why he rejected such alternatives does not mean that such alternatives cannot be revisited in the consultation process. Of course, they can be because the other consulting party or parties may view them as potentially viable solutions. Obviously, the employer may have strong views on such alternatives because he will have had an opportunity to consider them already and will have already rejected them before. For the employer to pretend as if he has no views on such alternatives would be dishonest because he will already have formed some or other view on them. However, what will be required is that the employer should consider honestly and properly whatever the other consulting party may have to say on such alternatives and change its mind or view on them if the other consulting party comes up with sufficiently persuasive arguments for the employer to change. Before considering such alternatives, the employer may have found it necessary to launch some or other research or investigation into the viability of such alternatives and may, therefore, seem to have strong views on them because it has considered them properly and thoroughly.’ " "[150] The LAC concluded that[37]: ‘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.’" (complete) 2. severance pay (incomplete)

Labour Law cases decided in the South African Courts (Highlights and updated 6 1997 to 12 2025 [Copyright: Marius Scheepers/16.12.1]) LABOUR COURT Condonation, costs, court appeal, damages, execution, high court jurisdiction, interdict (see also urgent interdict), joinder, jurisdiction, labour court, order, plea, prescription, reinstatement, remedies, res judicata, rule nisi. Condonation Retention and share option payment. The applicant resigned from the respondent and claimed payment of the further instalments under the agreement. Undertaking by the respondent to make good the loss that the applicant would suffer as a result of resigning. Employment contract gave rise to an enforceable obligation on the part of the respondent to pay the applicant the amount claimed. (J1720/12) [2014] ZALCJHB 72 Grup v Renaissance BJM Securities (Pty) Ltd Noted that a party is obliged to apply for condonation as soon as it realises that it has not complied with a time period. Held that a party applying for condonation must provide the Court with a satisfactory explanation for any delay in bringing the application for condonation. JS741/01 NUMSA & Others v Duro Pressing (Pty) Ltd Benefit, Other case law cited Apollo Tyres South Africa (Pty) Ltd v CCMA and others [2013] 5 BLLR 434 (LAC) C 546/12 South African Revenue Services v Ntshintshi Test Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A). JR1367/01 Public Servants Association of South Africa obo Coetzee v MEC for Education, North West Province & Another (a) the degree of lateness or non-compliance with the prescribed time frame; (b) the explanation for the lateness or the failure to comply with time frames; (c) prospects of success or bona fide defence in the main case; (d) the importance of the case; (e) the respondents interest in the finality of the judgment; (f) the convenience of the court; and (g) avoidance of unnecessary delay in the administration of justice. Strong/weak prospects of success as soon as aware of lateness JR1552/06 Academic & Professional Staff Association v Pretorius N.O. & Others Due to no funds to pay attorney Dismissed J 03/2009 Balmer and Others v Reddam (Bedfordview) (Pty) Ltd No application for condonation the commissioner should not have heard the matter as he did not have jurisdiction JR2470/09 Orlando Pirates FC (Pty) Ltd v Raffee NO and Others 19 months strong prospects of success D534/09 NUMSA and Others v Adecco Recruitment Services Ltd Condonation from bar Condonation granted in application from the bar Key consideration in condonation application the prejudice to the other party JA94/98 Tully vs Mills bank regard to the applicants claim for leave pay. He stated that he had terminated the contract of employment because of a breach by the respondent but then simply stated that as a consequence of the above he suffered damages. He did not state whether this was due under the BCEA, not disclose a cause of action and the exception was upheld. (C 414/13) [2014] ZALCCT 24 Volschenk v Pragma Africa (Pty) Ltd Late filing of statement of claim some 54 days late. Negligence of a legal representative was not considered an acceptable excuse for a delay it was clear in the present matter that the appellant and his legal team did not believe that the statement of claim was filed out of time and that the appellant had to apply for condonation. This was so because the appellant initially referred the matter for arbitration to the CCMA. (JA55/2013) [2015] ZALCJHB 1 Khosa v ABSA Bank Ltd 3 years late JR2744/12 Mngomezulu and Another v Mulima N.O. and Others (JR2744/12) [2017] ZALCJHB 402 (7 November 2017) High Tech Transformers (Pty) Ltd v Lombard the Honourable (2012) 33 ILJ 919 (LC) at page 919. An unsatisfactory and unacceptable explanation for any of the periods of delay will normally exclude the grant of condonation, no matter what the prospects of success on the merits NUM v Council for Mineral Technology (1999) 3 BLLR 209 (LAC) at 211 G-H at para 25. There is a further principle which is applied and that is without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for delay, an application for condonation should be refused. Moila v Shai and others (2007) 28 ILJ 1028 (LAC) at para. 36. Indeed, it is clear from PE Bosman Transport Wks Com v Piet Bosman Transport 1980(4) SA 794 (4) at 799 D that in a case such as this one, it is not necessary to consider the prospects of success and that condonation could be refused no matter how strong the prospects of success are in a case such as the present one. Van Wyk v Unitas Hospital and another [2007] ZACC 24; 2008 (4) BCLR 442 (CC) at para. 31. A litigant is entitled to have closure on litigation. The principle of finality in litigation is intended to allow parties to get on with their lives. After an inordinate delay a litigant is entitled to assume that the losing party has accepted the finality of the order and does not intend to pursue the matter any further. To grant condonation after such an inordinate delay and in the absence of a reasonable explanation would undermine the principle of finality and cannot be in the interest of justice. delay, explanation, prospects of success JA37/2012 MEC for Education (North West Provincial Government) v Makubalo (JA37/2012) [2017] ZALAC 13 (3 February 2017) NEHAWU and Others v Charlotte Theron Childrens Home [2004] 10 (BLLR) 979 (LAC). Court held that in an exceptional case, even where a delay is substantial, the explanation for it less than adequate and the prospects of success indeterminable, it is sometimes nevertheless in the interest of justice to grant condonation. lack of funds on its own cannot constitute reasonable explanation for the delay. JR74/17 Madzhie v General Public Service Sectoral Bargaining Council and Others (JR74/17) [2019] ZALCJHB 304 (8 November 2019) Du Plessis v Wits Health Consortium (Pty) Ltd [2013] JOL 30060 (LC) at para 36. [16] It is clear that a claim of lack of funds on its own cannot constitute reasonable explanation for the delay. In other words, when pleading lack of funds as the cause of the delay, the applicant needs to provide more than a mere claim that the reason for the delay is lack of funds. In this respect, the applicant has to take the Court into his or her confidence in seeking its indulgence by explaining "when" not only that he or she finally raised funds to conduct the case but also how and when did he or she raise those funds. The "when" aspects of the explanation is important as it provided the Courts with the information as to whether there was any further delay after raising the funds and whether an explanation has been provided for such a delay. [16]...In my view, attorneys should start advising clients to approach the Court on their own in the event that they have no funds to pay for the legal services. To the extent that the litigants have no necessary knowledge, this Court has various pro forma court documents (such as affidavits, statement of case, notice of motion, etc.) that are easy to complete or adapt. So far, they have been utilised by less sophisticated, unrepresented litigants with great success. JR 306/15 Sitoe v Commission for Conciliation, Mediation and Arbitration and Others (JR 306/15) [2020] ZALCJHB 196 (22 May 2020) [24] In SA Transport and Allied Workers Union v Tokiso Dispute Settlement and Others[(2015) 36 ILJ 1841 (LAC)] the LAC confirmed that where a party is out of time and has to take the jurisdictional step of applying for condonation but failed to do so, a court cannot come to the party’s assistance. The LAC held that in the absence of an application for condonation, the court cannot assist the party. Due to attorney's conduct JA81/19 SAMWU obo Shongwe and Others v Moloi N.O and Others (JA81/19) [2021] ZALAC 2; [2021] 5 BLLR 464 (LAC) (26 February 2021) See, inter alia, Regal v African Superslate 1962 (3) SA 18 (A) at 23 C-H; Saloojee & another v Minister of Community Development 1965 (2) SA135 (A) at 141 B-H. [33] Even though, generally, a party is not absolved from blame where its legal representative, through negligence, or otherwise, has not complied with time periods, an exception is made, generally, in circumstances where the party has not remained passive in the face of such non-compliance and has done something about it.[4] 45.2. The order of the Labour Court, refusing to condone the late filing of the rule 7A(8)(b) notice, dismissing the review, and ordering the appellant to pay the costs of the third respondent, is set aside and is substituted the defect would have to be of a kind which would result in a miscarriage of justice if it were allowed to stand JA53/2019 National Education Health and Allied Workers Union (NEHAWU) and Others v Metrofile (Pty) Ltd and Others (JA53/2019) [2021] ZALAC 8 (29 March 2021) [10] To grant condonation is an exercise of judicial discretion that is only fettered by being judicially explained.[1] The test is whether the court whose decision is challenged on appeal has exercised its discretion judicially. The exercise of the discretion will not be judicial if it is based on incorrect facts or wrong principles of law[2] or where the court of first instance acted capriciously, or in a biased manner, or committed a misdirection or an irregularity, or exercised its discretion improperly or unfairly.[3] If none of these grounds is established, it cannot be said that the exercise of discretion was not judicial. In those circumstances the claim for interference on appeal must fail. [11] Where time-limits are set, whether statutory or in terms of the rules of court, a court has an inherent discretion to grant condonation where the interests of justice demand it and where the reasons for non-compliance with the time-limits have been explained to the satisfaction of the court. [4] Steenkamp & others v Edcon Ltd (2019) 40 ILJ 1731 (CC) at 1740 para 26. [41] In giving effect to this primary object, the LRA imposes strict time-limits within which various applications and referrals must be launched. Non-adherence to these time-limits may be condoned. Both the Labour and the Labour Appeal Courts have incorporated the general principles for condonation referred to above. But they have also infused factors and considerations specific to labour law: Condonation in the case of disputes over individual dismissals will not readily be granted. The explanation for non-compliance would have to be compelling, the case for attacking a defect in the proceedings would have to be cogent and the defect would have to be of a kind which would result in a miscarriage of justice if it were allowed to stand. Whether the delay was a result of a deliberate, wilful decision not to comply with a lawful and binding award in terms of the LRA is also an important factor to consider. Where the explanation for the delay is the internal processes and procedures of trade unions, the Labour Court has taken a stricter view. (Emphasis added) Department of Agriculture , Forestry & Fisheries v Baron & others (2019) 40 ILJ 2290 (LAC) at 2304 para 41. Edcon Ltd v Steenkamp & others (2018) 39 ILJ 531 (LAC) at 544 para 45. that the explanation in support of condonation, relying on a failed legal strategy to justify the delay, is not acceptable. [24] Truth be told, the appellants and their legal representatives bungled their case. Their argument went off on a tangent and did not meaningfully, or at all, address their prospects of success. No cogent criticism can be sustained in the Labour Courts determination that the special pleas, including one concerning the identity of the employer, were destined for separate adjudication. The appellants belated attempt to call in the aid of their statement of claim, to show their reasonable prospects of success, is contrived. They failed to incorporate their statement of case into their founding papers. The Labour Court correctly invoked the time- honoured convention that an applicant must, 'stand or fall by his/her founding affidavit and resisted the temptation to consider the pleadings in the referral proceedings. Its finding that the appellants did not demonstrate their prospects of success remains unassailable. Once party becomes aware JR 1215/18 Greater Taung Local Municipality v South African Local Government Bargaining Council and Others (JR 1215/18) [2021] ZALCJHB 16 (17 January 2021) [11] It is also well established that as soon as the party in default becomes aware that condonation is necessary, an application for condonation must be filed without further delay[10]. Horatious Seatlolo and others v Entertainment Logistics Services (A Division of GALLO AFRICA LTD) (2011) 32 ILJ 2206 (LC). It is trite that an application for condonation must be brought as soon as the party becomes aware of the default. This principle has been emphasized by the Supreme Court of Appeal on numerous occasions (see Saloojee supra at 138H; Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 129G; and Napier v Tsaperas 1995 (2) SA 665 (A) at 671 B-D). This approach has been endorsed by the Labour Appeal Court which in fact advocates bringing the application for condonation on the same day it is discovered to be necessary. See in this regard inter alia Allround Tooling (Pty) Ltd v NUMSA and others [1998] 8 BLLR 847 (LAC) at 849 para 8; NEHAWU v Nyembezi [1999] 5 BLLR 463 (LAC) at 464 D-F; and Librapac CC v Fedcraw and Others [1999] 6 BLLR 540 (LAC) at 543. Interest of justice JS 170/20 Pheganyane v SANCA Witbank Alcohol and Drug Help Centre and Others (JS 170/20) [2021] ZALCJHB 55 (27 March 2021) [3] See Steenkamp and Others v Edcon Limited 2019 (7) BCLR 826 (CC); (2019) 40 ILJ 1731 (CC); [2019] 11 BLLR 1189 (CC), where it was held that [36] Granting condonation must be in the interests of justice. This Court in Grootboom set out the factors that must be considered in determining whether or not it is in the interests of justice to grant condonation:[T]he standard for considering an application for condonation is the interests of justice. However, the concept interests of justice is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant. It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the courts indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or courts directions. Of great significance, the explanation must be reasonable enough to excuse the default.The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.[37] All factors should therefore be taken into account when assessing whether it is in the interests of justice to grant or refuse condonation. barring exceptional circumstances, this is no explanation at all: a lack of funds JR 764/18 Kock v CCMA & Others (JR 764/18) [2021] ZALCJHB 101 (31 May 2021) Du Plessis v Wits Health Consortium (Pty) Ltd In fact, a lack of funds is surely commonplace with all employees pursuing cases where they have been dismissed. There is nothing unique or exceptional about it. Most litigants, despite such lack of funds, manage to prosecute their disputes within the time limits prescribed. I consider the following dictum from the judgment in Du Plessis v Wits Health Consortium (Pty) Ltd[23] as apposite: a claim of lack of funds on its own cannot constitute reasonable explanation for the delay. In other words, when pleading lack of funds as the cause of the delay, the applicant needs to provide more than a mere claim that the reason for the delay is lack of funds. In this respect, the applicant has to take the Court into his or her confidence in seeking its indulgence by explaining "when" not only that he or she finally raised funds to conduct the case but also how and when did he or she raise those funds. The "when" aspects of the explanation is important as it provided the Courts with the information as to whether there was any further delay after raising the funds and whether an explanation has been provided for such a delay. appeal in matters of discretion is strictly circumscribed JA89/2020 Smith Capital Equipment (Pty) Ltd v Mergui (JA89/2020) [2021] ZALAC 40 (27 October 2021) [21] As already stated earlier in this judgment, in order to determine whether good cause is shown, the following factors together with any other relevant factors are taken into account: the degree of lateness, the reasons for the lateness, the prospects of success, any prejudice that the respondent may suffer, and the respondents interest in finality.[Melane v Santam Insurance Company Limited 1962 (4) SA 531 (A) at 552.] These factors are interrelated. Thus, a slight delay and good explanation may help to compensate for prospects of success which are not strong, and strong prospects of success may tend to compensate for a long delay.[8] [14] It is a well-settled principle that the power to interfere on appeal in matters of discretion is strictly circumscribed. For a court of appeal to interfere with the decision of the court a quo where a discretion has been exercised, the test is whether the court a quo acted improperly and unreasonably or that it acted capriciously, or upon the wrong principle or with bias, or whether the discretion exercised was based on unsubstantial reasons or whether the court a quo adopted an incorrect approach.[Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC) at para 55.] Unfair Labour Practice: 90 days JR1450/17 Department of Military Veterans v Moche and Others (JR1450/17) [2022] ZALCJHB 44 (7 March 2022) [16] In Amalungelo Workers Union obo Mayisela and 29 Others v CCMA and Others,[Case No. JA07/21, dated 29 November 2021.] the Labour Appeal Court held that: The act or omission referred to in subsection (3) is clearly that which gave rise to the dispute. And the dispute, as long as it is the same one, only has one initial date on which it arose. The fact that the dispute is ongoing, in the sense that it recurs after it arose, may be because it is either never resolved, or satisfactorily resolved. But does that (sic) not imply that the parties, as it were, necessarily have a new act or omission or wrong every time the same dispute erupts again.[ [18] In casu, the act or omission that gave rise to the dispute arose in July 2013, or August 2013. The first respondent, prior to requesting a job evaluation, requested to be paid an acting allowance, which proves that he became aware of his right at that time to be paid for the additional responsibilities. Further, in June 2015 when he requested the job evaluation, he was aware of his right. On any reading of section 191(1)(b)(ii), the 90-day period cannot be said to run from the date when the employer communicates its decision of either the grievance referred by the employee or the demand or request made by the employee. This will not accord with the provision itself and will render the 90-day time limit completely useless.[Eskom Holdings SOC Ltd v NUM obo Kyaya and Others (2017) 8 BLLR 797 (LC) and City of Johannesburg v South African Local Government Bargaining Council and Others (JR3204/10) [2014] ZALCJHB68 (10 February 2014).] If the employee lodged a grievance and the decision was communicated at a later stage such that the referral of dispute to the relevant bargaining council or the Commission for Conciliation, Mediation and Arbitration (CCMA) is made outside the 90-day period, the fact that there was a grievance that took long to be resolved may be used to motivate for application for condonation. [19] The commissioner should have, the moment he made such an award that was retrospective from 2013, enquired if he was legally empowered to make it. Put differently, he should have realised that he was not clothed with the requisite jurisdiction to entertain the dispute and to make such an award, in the absence of an application for condonation for the late referral of the dispute. when application be made J 1747 / 2018 Chasi v University of Johannesburg (J 1747 / 2018) [2022] ZALCJHB 275 (3 October 2022) [58] And finally, where condonation is needed, It is essential that condonation must be applied for either immediately upon or at least as expeditiously as possible after, the applicant party became aware or reasonably should have become aware, that condonation is needed.[See Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) at 449G; Darries v Sheriff, Magistrate's Court, Wynberg, and Another 1998 (3) SA 34 (SCA) at 401-41B; Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd 2010 (4) SA 109 (SCA) at para 39; A Hardrodt (SA) (Pty) Ltd v Behardien and Others (2002) 23 ILJ 1229 (LAC) at para 18.] The failure to expeditiously apply for condonation and the resulting delay would be considered to add to the length of the delay, and the failure to property justify and explain this further delay may of its own also lead to the refusal of condonation.[See De Beer en 'n Ander v Western Bank Ltd 1981 (4) SA 255 (A) at 257; Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 129G; Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281C-F.] In Van Der Merwe v The Minister of Police[2019 JDR 1263 (FB) at para 8.] it was said that: '... However, the period of delay before the notices were delivered, is not the only aspect that has to be considered, because the delay of 6 months in filing the condonation application is of equal importance. If, for instance, it is found that there is no reasonable and acceptable explanation for the delay in filing the application, then it would follow that the application for condonation as a whole cannot succeed ...'. A similar approach was followed by this Court in Seatlolo supra[(2011) 32 ILJ 410 (LC) at para 12.], where it was said:'... It is incumbent on a party to apply for condonation as soon as possible upon becoming aware of the default. This point has been repeatedly emphasized by the Supreme Court of Appeal ... , an approach strongly endorsed by the Labour Appeal Court. Indeed the LAC has held that an application for condonation ought to be launched on the same day that the default is discovered ... ' minimal delay...not bringing a full condonation application JS395/19 Landman v Deutsche Bank AG Johannesburg Branch (JS395/19) [2023] ZALCJHB 44 (2 February 2023) "[24]      The Applicant has adopted a highly technical and formalistic approach which, in the circumstances, is not appropriate.  In this light I refer to the judgment of Moshoana J in this Court, Abrahams v Murray and Roberts Power and Energy[(JS409/20) [2021] ZALCJHB 382 (19 October 2021).]:   “[3]      Given the primary aim of the Rules of Courts, it is inappropriate in my view, for litigants to attempt to gain advantage over each other in a litigation process by using the Rules, even where effectiveness and efficiency is not achieved.  Labour disputes require speedy and effective resolution. Accordingly, practitioners should be reasonable in their approach when seeking to oppose minimal departure from time periods prescribed in the Rules.  It is indeed so where a time period is prescribed in the Rule, litigants are bound to promptly comply with such time periods.  However, if a litigant minimally misses the time period, where immense prejudice is not demonstrable, it remains an unreasonable opposition to heavily oppose a quest for indulgence by this Court.”" "[25]      The Learned Judge went on to state that:   “Practitioners and litigants should know that on application of the de minimis non curat lex – the law is not concerned with insignificant or minor matters, Courts are inclined to indulge where the delay is not excessive. Under those circumstances, opposition becomes reasonable, if immense prejudice is shown to exist. Otherwise, if prejudice is non-existent, opposition must be unreasonable”"   alleged unfair discrimination in terms of Employment Equity Act, 1998 – when the conduct complained of is continuing and repetitive there is no need to apply for condonation. JS 903/21 Msani v Mpact Operations (Pty) Ltd (JS 903/21) [2023] ZALCJHB 11 (6 February 2023) [18]       In the case of Moqhaka Local Municipality v The South African Legal Government Bargaining Council and Others,[6] the Court found that an application for condonation in an unfair labour practice dispute relating to demotion was not required. Although the act of demotion was a single act, the consequences thereof, namely the depletion of the employee’s duties, were continuous and therefore an application for condonation was not required. [20]       In casu, I take note of the respondent’s contention that the act of promotion or non-promotion is a single act. However, from the applicant’s statement of case, it is clear that he is alleging a number of discriminatory acts on the part of the respondent over a period of time. In my view, I support the Solidarity judgment that regard should be had to all the relevant facts and circumstances surrounding the matter, in this instance, the 2019 and 2020 incidences.  Failure to promote has ongoing consequences for the employee’s welfare and in particular his remuneration. The consequence of the alleged discriminatory act is therefore continuous. In other words, when an employee is not promoted, the benefits that would have accrued to that employee had they been promoted, is not accruing to that employee, at least from the time the discriminatory act occurred.   explanation for the delay must have been comprehensive, convincing and compelling and should have covered every period of the delay JR 809/2021 Olivier v Bloemfontein Metal Merchants CC t.a Southern Cross Industries and Others (JR 809/2021) [2023] ZALCJHB 276 (10 October 2023) [36] As the Applicant sought an indulgence and bore the onus to satisfy the CCMA that condonation should be granted, it was incumbent to provide the CCMA and the arbitrator with a full explanation for every period of the delay. It is not sufficient simply to list significant events that occurred during the period in question as that does not assist in properly assessing the reasonableness of the explanation.[11] In short: the explanation for the delay must have been comprehensive, convincing and compelling and should have covered every period of the delay.   Condonation – Response to statement of case – Employer filed 84 days late JA35/24 Government Printing Works v Public Service Association and Another (JA35/24) [2024] ZALAC 63 (28 November 2024) Labour Court refusing condonation – Found that explanation for delay was entirely unreasonable and unacceptable and that prospects of success were immaterial – Employer’s prospects of success are excellent – Has concerns that it will contravene legislation by employing employee as security service provider – Interests of justice and fairness are best served by granting condonation – Order of Labour Court replaced with one granting application for condonation. 1]  Labour disputes, by their very nature, require speedy resolution.[1] Delays undermine the primary object of legislation designed to afford expeditious outcomes to employers and employees. An excessive delay in responding to a statement of case may also induce a reasonable belief that the claim has been accepted.[2] Adherence to the rules on the part of both parties contributes to the attainment of the broader objectives of the Labour Relations Act[3] (LRA) so that prescribed time periods are significant,[4] but they are not ironclad. A court has an inherent discretion to condone non-compliance with prescribed time-limits in the interests of justice, provided that the applicant has shown sufficient cause to obtain the indulgence.[5] [17]  A note on the choice of language. It is arguably the labels that are frequently attached to these two kinds of discretion that have caused some confusion. As the Constitutional Court has noted, the reference is often to a ‘strict / narrow / true’ discretion, on the one hand, as opposed to a discretion in the ‘broad / wide / loose’ sense, on the other. [18]  This court has previously held that the discretion whether to condone a late referral of a dispute is ‘loose’ because of the variety of relevant considerations.[26] The minority judgment of Zondo J in Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others is along the same lines,[27] as are various decisions of the SCA dealing with condonation.[28] 26]  Judicial discretion involves a value judgment based on the facts of the case.[51] The Labour Court must be fair to both sides.[52] It must also consider the broader objects of the LRA, including the importance of expeditious resolution of employment disputes.[53] The factors that must be considered in determining whether or not it is in the interests of justice to grant condonation, and the appropriate approach, "27]  This description evokes a balancing approach, characterised by proportionality and flexibility. The general principle remains that the various factors are to be considered collectively, and not mechanically, in determining the interests of justice.[55] While no single factor is ever likely to be decisive, the prospects of success in favour of the party seeking condonation is usually an important factor to be considered.[56] Only in exceptional circumstances would a party’s disregard for delay and delay in pursuing a matter justify completely overlooking the merits of the case.[57] The Western Holdings principle is, in a sense, less exacting and now appears to have been overtaken by the approach of the Constitutional Court. In the words of Zondo J, where the delay is ‘unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success’ (own emphasis).[58]  The prospects remain relevant, it seems, even ‘where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party’.[59] " [31]  Considering these dimensions, it is evident that a court may only rarely avoid any assessment of the prospects of success based on the extent of delay and quality of the explanation. This accords with the broad approach to delay and condonation that has emerged in our jurisprudence, also in respect of legality and administrative reviews.[70] It is so that one of the primary objects of the LRA is to promote the effective resolution of labour disputes, so that procedural expeditiousness is desirable. The overall approach must nonetheless accord with the interests of justice, including fairness to both parties, in the context of an enquiry that naturally lends itself to a holistic consideration of interrelated factors to enable an objective value judgment. 36]  The explanation offered for the delay between 19 July 2022, when the response was due, and the end of August, is reasonable and acceptable. It is the further delay of approximately 50 days that is problematic. The cause of this can only be attributed to the appellant’s legal representatives, both in respect of the explained and unexplained portions. " [40]  On balance, the appellant has succeeded in proving that there is good cause to grant the indulgence sought.[82] The uncontested prospects of success, in particular, coupled with the importance of the issue, are such that these factors compensate for the excessive delay and complete inadequacy of part of the explanation. Considering the relevant factors in their totality, the interests of justice and fairness are best served by granting condonation." Attorney to blame JA42/23 Malepe and Others v Mega Volt Loden Electrical (Pty) Ltd (JA42/23) [2025] ZALAC 6 (4 February 2025) [36]  The argument that, because the appellants were at all material times represented either by a union official or legal representatives, while it sounds attractive, ignores the fact that even where a person has been legally represented, it does not necessarily follow that condonation will always be refused. In fact, the interests of justice may very well point to the granting of a condonation application being in the interests of justice even where a litigant was legally represented and had the benefit of legal counsel. " In Saloojee and Another, NNO v Minister of Community Development,[5] Steyn CJ said: ‘This Court has on a number of occasions demonstrated its reluctance to penalise a litigant on account of the conduct of his attorney. A striking example thereof is to be found in R v Chetty 1943 AD 321. In that case there was an even longer delay than here, and the excuses offered by the attorney concerned were clearly unsatisfactory, but the Court nevertheless granted condonation. Feetham JA remarked…: “So far, however, as appeared from the papers before us, the applicant himself was not responsible for the delays which have occurred, save in so far as he continued to allow his case to remain in the hands of an attorney who had shown himself unworthy of his confidence, and, in view of the serious nature of the conviction recorded against the applicant, and of the fact that he was given leave to appeal by the Transvaal Provincial Division, the application for condonation is now granted.” In Regal v African Superslate (Pty) Ltd 1962 (3) SA 18 (AD) at p.23 also, this Court came to the conclusion that the delay was due entirely to the neglect of the applicant’s attorney, and held that the attorney’s neglect should not, in the circumstances of the case, debar the applicant, who was himself in no way to blame, from relief.’" [44]  It seems to me that the interests of justice call for the granting of the condonation application. Is it in the interest of justice to grant condonation JR1982/24 Seunane v South African Police Service and Others (JR1982/24) [2025] ZALCJHB 93 (5 March 2025) "[45]  In the case of Chetty v Law Society, Transvaal,[13] the Court held that a bona fide defence and good prospects of success are not sufficient in the absence of a reasonable explanation of the delay. This principle has been interpreted NUM v Council for Mineral Technology[14] as follows: ‘There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.’" "[46]  In Queenstown Fuel Distributors CC v Labuschagne N.O and others,[15] it was held that: ‘Condonation in the case of disputes over individual dismissals will not readily be granted. The excuse for non-compliance will have to be compelling, the case for attacking the defect in the proceedings would have to be cogent and the defect would have to be of a kind which will result in a miscarriage of justice if it were allowed to stand.’ " [42]  The Constitutional Court pointed out in Brummer v Gorfil Brothers Investments (Pty) Ltd and others,[11] that an application for condonation should be granted if it is in the interest of justice and refused if it is not. The Constitutional Court went on to say that the interests of justice must be determined by reference to all relevant factors outlined in Melane supra[12], including the nature of the relief sought, the nature and cause of any other defect in respect of which condonation is sought, and the effect of the delay on the administration of justice. 16.12.1 "AI: Key points from the judgment include: The Labour Court erred in not considering the interests of justice and the prospects of success. The delay in filing the statement of claim was not excessive, and the appellant acted in good faith. The dismissal of employees who were not involved in the strike (e.g., those on study leave or at home with permission) was deemed to have strong prospects of success. The Labour Appeal Court emphasized the importance of considering the right to fair labor practices and access to justice under the Constitution." JA111/2024 Numsa obo Members v Macsteel Service Centres South Africa (Pty) Ltd (JA111/2024) [2025] ZALAC 60 (14 November 2025) "Melane v Santam Insurance Co Ltd (1962): Established the principle that condonation requires consideration of the degree of lateness, explanation for the delay, prospects of success, and the importance of the case." "Ditsoane v ACWA Power Africa Holdings (Pty) Ltd (2024): Emphasized that courts must consider the interests of justice and prospects of success when deciding condonation applications." "Department of Transport and Others v Tasima (Pty) Limited (2018): Highlighted that courts may overlook delays if it is in the interests of justice, even if the explanation for the delay is unsatisfactory." "Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited (2019): Stated that courts must consider the merits of a case when deciding whether to condone delays" "Khumalo v MEC for Education, KwaZulu-Natal (2014): Stressed the importance of analysing the impugned decision and considering the merits of the challenge when assessing delays." "Road Accident Fund and Another v Mdeyide (2011): Highlighted the importance of time limits in ensuring certainty and stability in legal disputes" "Chief Lesapo v North West Agricultural Bank and Another (1999): Affirmed the constitutional right of access to courts as foundational to an orderly society." "City of Johannesburg Metropolitan Municipality and Others v Independent Municipal and Allied Trade Union and Others (2017): Emphasized the importance of considering the right to access courts and the interests of justice in condonation applications." "olett v Commission for Conciliation, Mediation and Arbitration and Others (2014): Held that without a reasonable explanation for delay, prospects of success are immaterial" "Matoto v Free State Gambling and Liquor Authority and Others (2017): Stated that condonation may be refused if there is no satisfactory explanation for the delay, regardless of prospects of success." Costs  Punitive costs JA111/2022 Lekhesa: In re Ngwenya v Trustees for the time being of Sishen Iron Ore Company Community Development Trust and Another (JA111/2022) [2024] ZALAC 11; [2024] 6 BLLR 585 (LAC); (2024) 45 ILJ 1220 (LAC) (26 March 2024) [17]       Punitive costs convey a court’s displeasure at a party’s reprehensible conduct[11] and are justified where the conduct concerned is extraordinary and deserving of a court’s rebuke.[12] Additionally, an order of costs de bonis propriis is made against an attorney, as an officer of the court who owes a court an appropriate level of professionalism and courtesy, as a mark of the court's displeasure for the conduct of that practitioner.[13] This occurs where a court is satisfied that there has been negligence to a serious degree, or a gross disregard for professional responsibilities, where an attorney acted inappropriately and egregiously, or where a legal practitioner misleads the court.[14]   manifestly unjust Acted Mala Fide P487/09 Inzuzu IT Consulting (Pty) Limited v CCMA & Others Security for costs peregrinus Respondent a peregrinus seeking review of arbitration award ; Court empowered to order that security for costs to be provided HC rule 47 C664/06 September & Another v Muddford International Services Ltd Costs to follow the result subject to considerations of fairness the ongoing relationship between the parties; the fact that the union was not at all unreasonable in opposing the relief sought; the unions belief that since a certificate of outcome had been issued after conciliation, which was never set aside, the strike action would be protected; the issue for decision, i.e. the legality or otherwise of the strike, was of great importance to the union and its members; the fact that the union did not oppose the granting of the final order; and the fact that the union had called off the strike immediately after the temporary order was issued. C429/07 City of Cape Town v South African Municipal Workers Union not vexatious and the case was not one of the exceptional cases that justified punitive costs JR1524/06 Moshela v CCMA and Others de Bonis Propriis JR2454/10, JI304/13 Lusitania Food Products (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR2454/10, JI304/13) [2017] ZALCJHB 148 (8 May 2017) 30]The circumstances in which a costs order bonis propriis may justifiably be imposed are however significantly more exacting. Negligence in a serious degree must be established on the part of the party against whom such a costs order is sought. Moloi and another v Euijen and another(1999) 20 ILJ 2829 (LAC) Costs de bonis propriis are awarded against legal practitioners in cases which involve serious delinquencies such as dishonesty, wilfulness or negligence in a serious degree. SA Liquor Traders Association v Chairperson, Gauteng Liquor Board and Others 2009 (1) SA 565 (CC) An order of costs de bonis propriis is made against attorneys where a court is satisfied that there has been negligence in a serious degree which warrants an order of costs being made as a mark of the courts displeasure. Waar v Louw 1977 (3) SA 297 (O) The tendency of time past was to make attorneys pay for their mistakes by means of an order of costsde bonis propriis. And the reason for such an order against an attorney is quite clear. The office of an attorney is a high and responsible office. The attorneys profession is a learned profession requiring great skill from its members. Mistakes which an attorney makes in litigation and which result in unnecessary costs should, therefore, not lightly be overlooked. And a litigant should not always be obliged himself to the costs which have been caused by the negligence of his attorney. But too strict action should not be taken against an erring attorney. The administration of justice is sometimes an irritating discipline, and even the most skilful practitioners can make mistakes which cause unnecessary costs. The attorneys profession should not be moved by too lenient an attitude to loosen its reins, but should also not be demoralised by too much cracking of the whip. As usual, in the affairs of man, the middle course s best. The circumstances under which a court can make an order of costs de bonis propriis against an attorney should be reasonably serious, as, eg, dishonesty, wilfulness or negligence of a serious degree. principle JA15/2014 Vermaak v MEC for Local Government and Traditional Affairs, North West Province and Others (JA15/2014) [2017] ZALAC 2 (10 January 2017) [11] The rule of practice that costs follow the result does not govern the making of costs orders in the Labour Court and such orders are made in accordance with the requirements of law and fairness.[17] For the above reasons, I conclude that the Labour Court did not exercise its discretion properly. This Court is therefore at large to interfere with the award of costs and make an order that we consider appropriate in the circumstances. Taking into account considerations of law and fairness, I am of the view that the order of the Labour Court should be substituted with one of no order as to costs. Moloi v Euijen it was observed that the framework of s 162 supports the proposition that when making orders of costs the requirements of law and fairness are paramount Callguard Security Services (Pty) Ltd v Transport and General Workers Union and Others (1997) 18 ILJ 380 (LC), and Xaba v Portnet Ltd (2000) 21 IJL 1739 (LAC). The requirements of law and fairness are on equal footing, and none is secondary to the other. Member of the Executive Council for Finance, Kwazulu-Natal and Another (2008) 29 ILJ 1707 (LAC) at para 17. [T]he norm ought to be that costs orders are not made unless those requirements (of law and fairness) are met. In making decisions on costs orders this court should strive to strike a fair balance between, on the one hand, not unduly discouraging workers, employers, unions and employer organisations from approaching the Labour Court and this court to have their disputes dealt with, on the other, allowing those parties to bring to the Labour Court and this court frivolous cases that should not be brought to court. This is a balance that is not always easy to strike, but if the court is to err, it should err on the side of not discouraging parties to approach these courts with their disputes[8] Lewis v Media 24 Ltd (2010) 31 2418 (LC) para 129. it was observed that the Labour Court has generally been reluctant to order costs against an individual employee.   JS1043/16 Massmart Holdings Limited v Theron (JS1043/16) [2018] ZALCJHB 4 (11 January 2018) Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd [1977] 4 All SA 94 (A) at page 108; 1977 (3) SA 670 (A) at page 687 C-F. The fundamental rule in regard to the award of damages for breach of contract is that the sufferer should be placed in the position he would have occupied had the contract been properly performed, so far as this can be done by the payment of money and without undue hardship to the defaulting party To ensure that undue hardship is not imposed on the defaulting party the sufferer is obliged to take reasonable steps to mitigate his loss or damage (ibid.) and, in addition, the defaulting party's liability is limited in terms of broad principles of causation and remoteness, to (a) those damages that flow naturally and generally from the kind of breach of contract in question and which the law presumes the parties contemplated as a probable result of the breach, and (b) those damages that, although caused by the breach of contract, are ordinarily regarded in law as being too remote to be recoverable unless, in the special circumstances attending the conclusion of the contract, the parties actually or presumptively contemplated that they would probably result from its breach. The two limbs, (a) and (b), of the above stated limitation upon the defaulting party's liability for damages correspond closely to the well-known two rules in the English case of Hadley v. Baxendale, 156 E.R. 145, which read as follows (at p. 151):   "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." Emphasis added. 37]I am persuaded that the respondent, a former employee of the applicant, was directly involved in headhunting Mr Pillay to join the bank in breach of the contractual undertaking and consequently rendered himself liable for damages suffered by the applicant in replacing Mr Pillay. The total amount claimed is fair and reasonable.   delay in delivering the answering affidavit is about 17 months JR137/201 Passenger Rail Agency South Africa v Commission for Conciliation, Mediation and Arbitration and Others (JR137/2015) [2018] ZALCJHB 160 (26 April 2018) [24] The granting of condonation nonetheless comes at a price. The third and fourth respondents had clearly been remiss and negligent in not delivering the answering affidavit when required to do so, compelling PRASA to file an objection in terms of clause 11.4.2 of this courts Practice Manual read with Rule 7 (5) (a) of the Rules of this Court. PRASA as a consequence of the third and fourth respondents dilatoriness was also compelled to oppose the condonation application in circumstances which the third and fourth respondents could have avoided. In the circumstances, considerations of law and fairness dictate that the fourth respondent be burdened with the costs of this application.   Constitutional Court CCT136/17 Zungu v Premier of the Province of Kwa-Zulu Natal and others (CCT136/17) [2018] ZACC 1 (22 January 2018) [23] ...  The correct approach in labour matters in terms of the LRA is that the losing party is not as a norm ordered to pay the successful party’s costs.  Section 162 of the LRA governs the manner in which costs may be awarded in the Labour Court. Member of the Executive Council for Finance, KwaZulu-Natal v Wentworth Dorkin N.O. [2007] ZALAC 41 (Dorkin) at para 19. The rule of practice that costs follow the result does not govern the making of orders of costs in this Court.  The relevant statutory provision is to the effect that orders of costs in this Court are to be made in accordance with the requirements of the law and fairness.  And the norm ought to be that costs orders are not made unless the requirements are met.  In making decisions on costs orders this Court should seek to strike a fair balance between on the one hand, not unduly discouraging workers, employers, unions and employers organisations from approaching the Labour Court and this Court to have their disputes dealt with, and, on the other, allowing those parties to bring to the Labour Court and this Court frivolous cases that should not be brought to Court. Post CC court cost ruling: costs to be made J1829/1 Mokoena v Credit Guarantee Insurance Corporation Africa Limited and Others (J1829/18) [2019] ZALCJHB 47 (7 March 2019) [1]          It has become crystal clear that some practitioners believe that since section 151(1) of the Labour Relations Act[1] (LRA) refers to this Court as one of law and equity, this Court is incapable of making cost orders. Such a belief is wrong and inconsistent with section 162 of the LRA. Before me is an interlocutory application dealing with the special pleas raised by the respondents against the applicants claim as set out in the statement of case.   party be given an opportunity to make representations JA29/2019 Kopanong Local Municipality and Another v Mantshiyane (JA29/2019) [2020] ZALAC 21; (2020) 41 ILJ 1907 (LAC) (28 May 2020) Punitive costs in the labour dispute guided by fairness and equity----fairness dictates that a party be given an opportunity to make representations----in the absence of such representations costs order contravening the principle of natural justice---Appeal upheld.   vexatious J 2548/2015 SASBO-The Finance Union v Duma (J 2548/2015; D 1154/2015) [2020] ZALCJHB 80 (25 May 2020) [10]      If this Court is satisfied that the rescission is vexatious or amounts to abuse of the court processes; it may order security for costs but has to be guided inter alia by the provisions of section 162 of the Labour Relations Act[2] (LRA). The court in Fisheries Development Corporation of SA Ltd v Jorgensen and Another; Fisheries Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and Others[1980 (4) SA 156 (W)], explained the term vexatious thus: In its legal sense vexatious means: frivolous, improper: instituted without sufficient ground, to serve solely as an annoyance to the defendant. Vexatious proceeding also not doubt proceedings which, although properly instituted, continued with the sole purpose of causing annoyance to the defendant, abuse connotes a mis-use, improper use, a use mala fide, a use for an ulterior motive   Constitutional court CCT 154/20 National Union of Mineworkers obo Masha and Others v SAMANCOR Limited (Eastern Chromes Mines) and Others (CCT 154/20) [2021] ZACC 16 (22 June 2021) [28]           Lastly, the question of costs.  The applicant submits that the costs orders are unjustified.  The Labour Appeal Court did not apply the principle set out in Dorkin[10] and Zungu,[11] and thus did not exercise its discretion judicially.  The first respondent submits that the principles applicable to the awarding of costs are well-known and there is no principle for this Court to engage with or provide guidance on.  Further, the matter does not raise a constitutional or a legal issue of general public importance.[29]           I agree with the applicant that the Labour Appeal Court did not have regard to this Courts decision in Zungu.  In Zungu, this Court held that the rule of practice that costs follow the result does not apply in labour court matters.[12]  The Court also quoted Dorkin with approval where it was held that it is crucial not to discourage employees, unions and employers organisations from approaching the Labour Court and Labour Appeal Court by mulcting unsuccessful litigants in costs.[13]  This Court further said that reasons must be provided where a costs order is issued.[14] [31]           The applicants role is to defend the rights of its members.  It cannot be argued that challenging a dismissal alone justifies a costs order.  Mulcting the applicant in costs in a labour matter where there is no finding of any untoward conduct on the part of the applicant is intolerable.  The costs orders will have a chilling effect on the applicant and may deter it from fulfilling its duty to represent its members without fear of reprisal.  This may affect its members right to access justice and thus, may infringe sections 23 and 34 of the Constitution.  However, there may be instances where a costs order is warranted and in that case, reasons must be provided.   Constitutional Court: no reasons from the Labour Court for departure from the general rule that costs do not follow the result in labour matters CCT 192/20 Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others (CCT 192/20) [2021] ZACC 26; 2021 (11) BCLR 1249 (CC); (2021) 42 ILJ 2371 (CC); [2021] 12 BLLR 1173 (CC) (7 September 2021) [24]          The established rule in litigation that costs follow the result does not apply in labour matters.  This Court has made that abundantly clear on a number of occasions, not least in its often-quoted decision in Zungu.[Zungu v Premier of the Province of KwaZulu-Natal [2018] ZACC 1; 2018 (39) ILJ 523 (CC); 2018 (6) BCLR 686 (CC).  See also South African Commercial, Catering and Allied Workers Union v Woolworths (Pty) Limited [2018] ZACC 44; 2019 (3) SA 362 (CC); 2019 (3) BCLR 412 (CC).]  Despite this, however, there is now a concerning pattern of this Court being requested to overturn decisions of the Labour Court and the Labour Appeal Court applying the general rule that costs follow the result, without more, to matters before those courts.[Since Zungu, we have been requested to do so on at least three occasions, including the present one.  See National Union of Mineworkers v Samancor Limited (Eastern Chromes Mines) [2021] ZACC 16; 2021 JDR 1249 (CC) (NUM) and Long v South African Breweries (Pty) Ltd [2019] ZACC 7; 2019 (40) ILJ 965 (CC); 2019 (5) BCLR 609 (CC).]  I deem it vital, then, to clarify in some detail in this judgment that it is not merely out of overzealous generosity on this Courts part that we say that costs do not follow the result in labour matters.  We are constitutionally and statutorily obliged to do so. [27]          It is clear from a holistic reading of the LRA that the dispute resolution mechanisms that it creates were meant to be a one stop shop for the resolution of labour disputes.[Chirwa v Transnet Limited [2007] ZACC 23; 2008 (4) SA 367 (CC); 2008 (3) BCLR 251 (CC) at para 54.]  These mechanisms were intended to be simple and accessible, so that those to whom the labour rights enshrined in our Constitution are conferred can vindicate those rights speedily and cost-effectively.  This laudable statutory goal is eroded when the bearers of labour rights are faced with the threat of adverse costs orders if their claims are, for whatever reason, unsuccessful.  That brings us to the second, and closely related, constitutional right that the rule against costs in labour matters is meant to fulfil. [33]          The principles set out above form the bedrock of how the question of costs should be understood in labour matters in the context of our democracy.  These principles find expression in section 162 of the LRA,[] which rejects the ordinary rule of litigation that costs should follow the result in favour of an approach based on law and fairness.  When we pay heed to this fairness standard, we do so because we are obliged by the LRA and the above constitutional imperatives.  Hence, I repeat: when making costs orders in labour matters, courts are enjoined to apply the fairness standard in the LRA as a matter of constitutional and statutory obligation. Section 162 of the LRA provides:(1)         The Labour Court may make an order for the payment of costs, according to the requirements of the law and fairness.(2)           When deciding whether or not to order the payment of costs, the Labour Court may take into account(a)           whether the matter referred to the Court ought to have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and(b)           the conduct of the parties(i)            in proceeding with or defending the matter before the Court; and(ii)           during the proceedings before the Court.(3)           The Labour Court may order costs against a party to the dispute or against any person who represented that party in those proceedings before the Court. [35]          In the labour context, the judicial exercise of a courts discretion to award costs requires, at the very least, that the court must do two things.  First, it must give reasons for doing so and must account for its departure from the ordinary rule that costs should not be ordered.[National Union of Metal Workers of South Africa v Bader Bop (Pty) Ltd [2002] ZACC 30; 2003 (3) SA 513 (CC); 2003 (2) BCLR 182 (CC)]  Second, it must apply its mind to the dictates of the fairness standard in section 162, and the constitutional and statutory imperatives that underpin it.  Where a court fails to do so, it commits an error of law and thus misdirects itself.  This Court explained this in Long:[W]hen making an adverse costs order in a labour matter, a presiding officer is required to consider the principle of fairness and have due regard to the conduct of the parties.  This, the Labour Court failed to do.  There is no reasoning on the question of costs beyond an indication that costs are to follow the result.  This is a misdirection of law and it follows that the Labour Courts discretion in respect of costs was not judicially exercised and must be set aside.[Long v South African Breweries (Pty) Ltd [2019] ZACC 7; 2019 (40) ILJ 965 (CC); 2019 (5) BCLR 609 (CC)] not entitled to charge legal costs (J 675/23; J 680/23 University of South Africa v Socikwa and Others (J 675/23; J 680/23) [2023] ZALCJHB 172 (7 June 2023) (1) Applications are struck off the roll for want of urgency. (2) Applicants’ legal practitioners are barred from charging any legal costs flowing from these applications. If the said legal representatives have been paid, they are ordered to reimburse the Applicants within 60 days of this order and submit proof thereof to the Registrar of this court. (3) Applicants are ordered to pay the costs of the Respondents on attorney and client scale.   costs de bonis propriis CA05/2023 Herold Gie and Broadhead Incorporated v Sun Chemical South Africa (Pty) Limited (CA05/2023) [2024] ZALAC 55 (11 November 2024) "[13]  In Stainbank v South African Apartheid Museum at Freedom Park and another[ [2011] ZACC 20; 2011 (10) BCLR 1058 (CC) at paras 52 - 54.], Khampepe J set out the indicated approach to an award of costs de bonis propriis: ‘[52]    Although the courts have the power to award costs from a legal practitioner’s own pocket, costs will only be awarded on this basis where a practitioner has acted inappropriately in a reasonably egregious manner. However, there does not appear to be a set threshold where an exact standard of conduct will warrant this award of costs. Generally, it remains within judicial discretion. Conduct seen as unreasonable, wilfully disruptive or negligent may constitute conduct that may attract an order of costs de bonis propriis. [53]    Punitive costs have been granted when a practitioner instituted proceedings in a haphazard manner; wilfully ignored Court procedure or rules; presented a case in a misleading manner; and forwarded an application that was plainly misconceived and frivolous. [54]    The basic rule relating to the Court’s discretion is as relevant to the award of costs de bonis propriis as it is in other costs awards. Extending from this discretion, it appears the assessment of the gravity of the attorney’s conduct is an objective assessment that lies within the discretion of a Court making the award.’ " 17]  On the strength of the law relating to a punitive cost order of the kind made by the court a quo, there is simply no basis to conclude that the steps taken by the appellant on behalf of the applicants to seek interim relief were of a kind which constituted a material departure from the responsibilities of an attorney acting in the best interests of his or her client. On the basis of the law in respect of interim interdicts, there was no basis to conclude that the appellant had exhibited conduct which could be categorized as negligence of a sufficiently serious fashion to justify a punitive costs order. Court Appeal common law rule of pre-emption of a party’s right to appeal Finding was accepted by Appellant DA20/08 Natal Witness v Govender & Others where an order of the Labour Court does not have the effect of a final order, it is not appealable. J1990/07 Mofokeng, Jantjie and 12 Others v JAC Pallets Africa CC & Another a prerequisite for appealability that the decision should at least be final in its effect and dispose of a substantial issue that may not always be sufficient, J1990/07 Mofokeng, Jantjie and 12 Others v JAC Pallets Africa CC & Another in the case of a periodical contract which was concluded from month to month, as opposed to a fixed term contract, the measure of damages was the remainder of the period of the contract. a claim for compensation could not be equated to a damages claim: this was made clear by s 195 of the LRA (JR 2152/2010) [2013] ZALCJHB 30 Continental Oil Mills (Pty) Ltd v Singh NO and Others No cross-appeal 1975 (1) SA 730 (A) 746E Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (A) 746E. [23] A judgment or order cannot as a general rule be varied against an appellant to its prejudice, in the absence of the necessary cross-appeal by the respondent.[3] There are compelling reasons why this is so, including ensuring that the playing fields in the context of an appeal are levelled, that parties are aware of the issues that are in dispute between them and provided with an appropriate opportunity to answer to such issues. This also prevents litigation by ambush, which is neither fair nor permissible in our legal system. Labour Appeal Court: to finalize a matter on appeal before it and not remit the matter to the Labour Court CA 11/2021 South African Police Services v Coericius and Others (CA 11/2021) [2022] ZALAC 104 (29 September 2022) [17] This Court is at large to hear issues on review not dealt with by the Labour Court a quo under certain circumstances. The circumstances where that is appropriate were addressed extensively in National Union of Metalworkers of SA on behalf of Sinuko v Powertech Transformers (DPM) & others[10]. Coppin AJA (as he then was) held:[42] Giving s 174(b) of the [Labour Relations] Act,[11] or the latter part of that section, a restricted meaning, would, in practice, inhibit the expeditious despatch of litigation and, in certain cases, cause a miscarriage of justice. It is frequently the case with appeals before this court involving a review of an award that only one, or so, grounds, out of a number, were dealt with by the Labour Court and in respect of which it dismissed the application for review, or granted the application and set aside the award, but without saying anything about the other grounds of review. It would be incongruous to suggest that in every case where the appeal (involving the one ground) was successful, this court ought to remit the matter to the Labour Court to decide on the other grounds that it did not consider initially, even though such a course might result in an unacceptable prolongation of the matter, or otherwise cause a miscarriage of justice. It is likely that in many appeals, excluding those in Joseph and Shoprite, this court has, in appropriate circumstances, itself considered the other grounds of review and finalized the application, as the Labour Court ought to have done.[43] In my view, in the light of the above, this court is legally competent, in terms of the latter part of s 174(b) of the Act, to finalize a matter on appeal before it and not remit the matter to the Labour Court if there has already been an inordinate delay in finalizing a matter, or its remittal would entail a further long delay and further costs, or if there is a reasonable possibility of a miscarriage of justice occurring due to a remittal. The exercise of the power would depend on the facts and circumstances of the matter before this court. In considering whether to finalize the matter itself, the remarks of the Constitutional Court in Fleecytex have to be taken into account. In matters involving a review of an award, the general rule is that it is the function of the Labour Court to review awards. A departure from that rule on appeal is exceptional and depends on whether, in a particular case, the interests of justice and convenience will best be served by this court finalizing the matter and not remitting it to the Labour Court. Other factors of importance include whether the issues were fully canvassed in the papers before the Labour Court; whether there is likely to be prejudice if the matter is not remitted and whether finalization of the matter by this court is requested by the parties on both sides. [18] This view was endorsed by the Constitutional court in Stokwe v Member of the Executive Council, Department of Education, Eastern Cape & Others[(2019) 40 ILJ 773 (CC).] at para [87]:In Powertech the Labour Appeal Court held that the following factors bear on the question whether a remittal to the Labour Court is the best course to adopt. These are whether (a) the interests of justice and convenience will best be served by the appellate court itself finalising the matter;(b) the issues were fully canvassed in the papers;(c) the parties are likely to suffer prejudice if the matter is not remitted; and(d) both parties requested the appellate court to finalise the matter. [21] Accordingly, the matter as a whole must be remitted to the Labour Court. Damages general and special damages, future damages, however, was difficult in the absence of an actuarial report, any information about his career path and his qualifications. Electronic Communications Transactions Act 25 of 2002 D204/07 Jafta v Ezemvelo KZN Wildlife award of a solatium in terms of the actio iniuriarum Factors regarded by courts as relevant in the assessment of damages included the nature and seriousness of the iniuria; the circumstances in which the infringement took place; the behaviour of the defendant (was the motive honourable or malicious?); the extent of the plaintiffs humiliation or distress; the abuse of a relationship between the parties; and the attitude of the defendant after the iniuria had taken place. This list was not an exhaustive list. The actual amount to be awarded was a discretionary act of the court JA6/07 Minister for Justice and Constitutional Development & Another v Tshishonga No solatium, loss of dignity post dismissal JS 178/09 Allpass v Mooikloof Estates (Pty) Ltd found guilty of misconduct that caused R7.8 million losses to their employer, counter-claim was that the respondents had breached their contracts of employment through fraudulently or negligently making unwarranted payments to suppliers. The court furthermore rejected an argument that the claim was a delictual one and therefore could not be entertained in terms of s 77(3). The fraud alleged in the pleadings was connected to the contract of employment and the allegation was that the respondents had abused their positions as servants of the appellant and had committed the fraud in this manner JA 78/11 Rand Water v Stoop and Another Fixed term contract, Payment for remainder of contract the maximum payable but not axiomatic that that is in all cases payable Damages must be reasonable. JA13/11 South African Football Association v Mangope JA113/14) KwaZulu-Natal Tourism Authority and Others v Wasa (JA113/14) [2016] ZALAC 35; [2016] 11 BLLR 1135 (LAC); (2016) 37 ILJ 2581 (LAC) (28 June 2016) unlike compensatory relief granted for unfair dismissal in terms of the LRA, no such relief available in a claim for breach of contract made under the BCEA. Claim under BCEA is a claim for damages the extent of the damages suffered by the party seeking damages must be proved employee that failed to prove damages as a result of the breach of contract entitled to no relief Damages for injuria JA104/2015 Pharmaco Distribution (Pty) Ltd v W (JA104/2015) [2017] ZALAC 48; (2017) 38 ILJ 2496 (LAC) (4 July 2017) claims damages for non-patrimonial damages for impairment of her dignity as a result of being unfairly discriminated against held there is in principle no difference between her claim for compensation under s194(3) of the LRA and her damages claim under s50(2)(b) of the EEA for non-patrimonial loss. To award both non-patrimonial damages and compensation to the employee for the same wrongful conduct of the appellant would not be just and equitable as it would amount to penalising the employer twice. ARB v Electrical Wholesalers (Pty) Ltd v Hibbert (2015) 36 ILJ 2989 (LAC) (ARB) at para 29. The Court found that there is no bar for an employee, in a single action, to claim: (a) compensation for an automatically unfair dismissal as a result of unfair discrimination under the LRA, and (b) compensation for unfair discrimination under the EEA. SA Airways (Pty) Ltd v Janse van Vuuren and Another (2014) 35 ILJ 2774 (LAC) at paras 78-80. In the EEA damages refer to an actual or potential monetary loss (i.e. patrimonial loss) and compensation refers to the award of an amount as a solatium (i.e. non-patrimonial loss). It is conceivable that cases of unfair discrimination may involve actual (or patrimonial) loss for the claimant as well as injured feelings (or non-patrimonial loss).The purpose of an award for damages for patrimonial loss by means of a monetary award, is to place the claimant in the financial position he or she would have been in had he, or she, not been unfairly discriminated against. This is the common purpose of an award of damages for patrimonial loss in terms of the South African law in both the fields of delict and contract. In the case of compensation for non-patrimonial loss, the purpose is not to place the person in a position he or she would have otherwise have been in, but for the unfair discrimination, since that is impossible, but to assuage by means of monetary compensation, as far as money can do so, the insult, humiliation and indignity or hurt that was suffered by the claimant as a result of the unfair discrimination. BCEA JA91/16 Pilanesburg Platinum Mines (Pty) Ltd v Ramabulana (JA91/16) [2019] ZALAC 60; (2019) 40 ILJ 2723 (LAC); [2020] 1 BLLR 24 (LAC) (28 August 2019) [32] I also need to add that had I found that appellant did in fact breach the agreement the only relief open to her was either specific performance or damages. In view of the facts of this case, it would not be appropriate to grant her specific performance. With regard to damages, as I said earlier there was a duty upon the respondent to prove the quantum of her damages, to simply demand damages in the amount that she would earn until her retirement is totally misconceived. Damages in a breach of contract needs to be proved, she failed to prove any, nor does she allege that she has been out of work from the date of her employment being terminated. In the circumstances, had the respondent proved a breach, she would not in law be entitled to any relief. [29] The respondent disavowed reliance on the LRA when it sought relief in terms of the BCEA and on unlawfulness of dismissal rather than approaching the CCMA on the basis of an unfair dismissal. She relied on contractual law as opposed to equity and fairness. The respondents contention is that the appellant is bound by the terms agreed upon with regard to the process of termination and that it failed to comply therewith hence it is in breach of their agreement. However, she fails to recognise that she cannot simply raise non-compliance of a term of a contract as a breach. She has to show that the preconditions for the appellant to comply with the clauses of the agreement are met. General and special damages JS154/18 Zulu v Eskom Rotek Industries (SOC) Ltd (JS154/18) [2018] ZALCJHB 459 (10 December 2018) [19] It also appears to me that his claim for an extraordinary sum of damages is expressed more in terms of the language that is used for a claim of special contractual damages. The distinction between general and special contractual damages has been expressed thus: Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) 687. To ensure that undue hardship is not imposed on the defaulting party . . . the defaulting party’s liability is limited in terms of broad principles of causation and remoteness to (a) those damages that flow naturally and generally from the kind of breach of contract in question and which the law presumes the parties contemplated as a probable result of the breach, and (b) those damages that, although caused by the breach of contract, are ordinarily regarded in law as being too remote to be recoverable unless, in the special circumstances attending the conclusion of the contract, the parties actually or presumptively contemplated that they would probably result from its breach (Shatz Investments (Pty) Ltd v Kalovyrnas 1976 (2) SA 545 (A) at p 550). The two limbs, (a) and (b) of the above-stated limitation upon the defaulting party’s liability for damages correspond closely to the well-known two rules in the English case of Hadley v Baxendale (1854) 150 ER 145, which read as follows (at p 151):Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, ie according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. notice pay, contractual leave pay JS539/17 Pansegrouw v Rendeals Four Consulting (Pty) Ltd (JS539/17) [2019] ZALCJHB 7; [2019] 6 BLLR 572 (LC) (23 January 2019) suffered damages for the "non-payment of non-statutory, contractual leave. The applicant says as a result of the unlawful and breach of the employment agreement the applicant has suffered damages, therefore, wants to recover such damages. In my view, section 77 of the Act caters for instances of this nature especially if the employee is no longer employed by such an employer. Considering the applicants statement of case, the way this point is pleaded I am satisfied, unlike the contractual notice pay and leave pay claims mentioned above, that the issue is about damages. difference between damages and compensation JA 86/18 BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa and Another (JA 86/18) [2020] ZALAC 22; (2020) 41 (ILJ) 1877 (LAC) ; [2020] 11 BLLR 1079 (LAC) (18 May 2020) [66] What is clear from this is that Mr Deppes damages claim is for patrimonial loss (loss of earnings) and not non-patrimonial loss for a violation of his dignity. There is, therefore, no duplication between this claim and his compensation claims under the EEA and LRA, both of which are for impairment of his dignity.[16] Accordingly, the Labour Court ought to have found that BMW is liable for Mr Deppes proven damages.[67] There is a fundamental difference between damages and compensation as contemplated in s50(2) of the EEA. Damages in the EEA relates to an actual or potential monetary loss (patrimonial loss) and compensation relates to the award of an amount as a solatium (non-patrimonial loss). This Court has repeatedly held that a claimant in an unfair discrimination claim, such as we have in this case, may suffer actual (patrimonial) loss) as well as injured feelings or non-patrimonial loss. A damages award for patrimonial loss is aimed at placing an employee in the financial position that the employee would have been, had he or she not been unfairly discriminated against. Compensation for non-patrimonial loss, on the other hand, is to assuage by means of monetary compensation the insult, humiliation and indignity or hurt that a claimant has suffered as a result of the unfair discrimination. [17] misconduct: insolence, in the form of a refusal to transfer from one site to another without an acceptable reason JR 2013/2020 Volsec Security SA (PTY) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 2013/2020) [2022] ZALCJHB 305 (3 November 2022) [7]...Further, the arbitrator failed to take into account the provisions of the applicable sectoral determination insofar as it regulates transfers. The determination provides for the transfer of employees, subject to the condition that a security officer transferred to his site in excess of 60 km away from the deployment of the security officer at the time of the transfer attracts payment of an allowance. The applicants dismissal was substantively and procedurally fair. misconduct: cannabis JR 1826 /2020 NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826 /2020) [2022] ZALCJHB 292 (1 December 2022) [55] The Constitutional Court held that the case which was before court, as decided by the High Court, was whether the prohibition by the impugned provisions of the mere possession, use or cultivation of cannabis by an adult in private for his or her personal consumption in private is inconsistent with the right to privacy provided for in section 14 of the Constitution[10] and, therefore, invalid.[56] The Constitutional Court held that the right to privacy entitles an adult person to use or cultivate or possess cannabis in private for his or her personal consumption. Therefore, to the extent that the impugned provisions criminalise such cultivation, possession or use of cannabis, they limit the right to privacy.[57] The essence of the Constitutional Court judgment is that it declared specific provisions and sections of the Drugs and Drug Trafficking Act[11] and the Medicines and Related Substances Control Act[12] to be inconsistent with the right to privacy entrenched in section 14 of the Constitution and, therefore, invalid to the extent that they make the use or possession of cannabis in private by an adult person for his or her own consumption in private a criminal offence and to the extent that they prohibit the cultivation of cannabis by an adult in a private place for his or her personal consumption in private. [58] In Prince v President of the Law Society of the Cape of Good Hope[[2002] ZACC 1; 2002 (2) SA 794 (CC) at para 53.] the Constitutional Court held that: The government objective in prohibiting the use and possession of cannabis arises from the belief that its abuse may cause psychological and physical harm. On the evidence of the experts on both sides, it is common cause that cannabis is a harmful drug. [62] The Constitutional Court did not interfere with the definition of a drug nor did it declare dagga or cannabis to be a plant or a herb, as alleged by Mr Mkoko.[63] It is also evident from the Constitutional Court judgment that it does not offer any protection to employees against disciplinary action should they act in contravention of company policies or disciplinary codes. [68] It is evident from the transcribed record that the existence of the alcohol and drug policy was not disputed. The applicants were aware of the policy and they conceded that they were trained on the policy. The issue was rather whether the alcohol and drug policy applied to dagga. In my view, the arbitrators finding that there was a rule is a reasonable one that is based on the evidence before her. The applicants attempt to introduce evidence to the effect that the policy did not provide for testing positive for cannabis, that dagga was a plant and not a drug and that cannabis could stay in ones system for a long time, was nothing but opportunistic. [80] The court noted a difference between the effects of alcohol and cannabis and held that there is no question that, unlike alcohol which leaves an individual’s bloodstream within a few hours after consumption, cannabis may remain present in an individual’s system for a number of days or up to weeks and that tests for cannabis do not demonstrate the degree of impairment of the employees ability to perform her or his duties. Unlike alcohol, one cannot determine a level of impairment based on test results. Proof of impairment is therefore not required as with alcohol, it is automatically assumed that one is under the influence of cannabis due to its intoxicating nature. [81] In SGB, the LAC confirmed that an employer is entitled to set its own standards to enforce discipline in its workplace. In Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration and others[(2006) 27 ILJ 2076 (SCA) at para 46.], the court referred with approval to Myburgh and Van Niekerk[Dismissal as a Penalty for Misconduct: The Reasonable Employer and Other Approaches (2000) 21 ILJ 2145.] where they suggested that: The first step in the reasoning process of the commissioner should be to recognise that, within limits, the employer is entitled to set its own standards of conduct in the workplace having regard to the exigencies of the business. That much is trite. The employer is entitled to set the standard and to determine the sanction with which non-compliance with the standard will be visited.[82] The Respondent is entitled to set its own standards of conduct. Considering the hazardous workplace where employees work with glass, chemicals, furnaces and operate cranes and forklifts and the provisions of the Occupational Health and Safety Act, which are applicable and enforced as a matter of importance, the Respondent has a zero-tolerance in respect of contraventions of its alcohol and drug policy. misconduct: cannabis, Zero-tolerance JR 1826 /2020 NUMSA obo Nhlabathi and 1 Other v PFG Building Glass (PTY) Ltd (JR 1826 /2020) [2022] ZALCJHB 292 (1 December 2022) [85] Zero-tolerance means that a particular type of behaviour or activity will not be tolerated at all and a zero-tolerance policy is one that does not allow any violations of a rule. How many dependants an individual has or how many years of unblemished service he or she has rendered, or any other mitigating factor for that matter plays no role where a zero-tolerance policy is followed and consistently applied. The only factors that are to be considered are whether the employee was aware of the zero-tolerance policy, whether it was consistently applied and whether it is justified in the workplace. In casu, the applicants were aware of the zero-tolerance policy, it was applied consistently and it was justified due to the hazardous nature of the workplace and the Respondents duty to provide a safe working environment. Damages against employee JS958/2019 Mogale and Another v National Health Laboratory Services (JS958/2019) [2024] ZALCJHB 362 (13 September 2024) Breach of contract – CEO and CFO of National Health Laboratory Services (NHLS) – Fruitless and wasteful expenditure – Irregular and unauthorised payments – Displayed severe negligence and incompetence, resulting in damage to NHLS – CEO should have been looking out for interests of NHLS – Exceeding delegations of authority – Former CEO to pay R22,135 346.70 to NHLS – Claims for unfair dismissal of CEO and CFO dismissed – Constitution, s 217 – Public Finance Management Act 1 of 1999. [9] Subsequently, the Applicants launched proceedings in the Labour Court contesting the fairness of their dismissals and the NHLS has launched a counterclaim for damages, premised on the alleged breach of the Applicants’ employment contracts. [57] In short: The express duties of the Applicants correlate with their common law duties and as senior employees, they were required to act in good faith, to serve the NHLS honestly, faithfully and diligently, and not to work against the NHLS’ interests and not to do anything incompatible with the due or faithful discharge of their duties.[7] In exercising their duties, the Applicants were required to do so in terms of the express terms of their contracts and in a manner which was not in conflict with the provisions of section 217 of the Constitution and the PFMA. [70] Prof Buch commented that the aforesaid clauses in the SLA, signed by Ms Mogale, are highly irregular because the Board approved R 25 985 921.10, yet Ms Mogale signed an SLA for R 83 902 000,63. Ms Mogale was not authorised to enter into any SLA which exceeded what the Board had approved because she had to and could only procure what was approved. If the tender amount or specifications were to be amended, it had to be submitted to the Board for approval. In this instance, the R 83 902 000,63 was never submitted to or approved by the Board, nor was a competitive bid process followed, as was required for a valid tender process. [81] Prof Buch explained that Ms Mogale breached the terms of her contract, and she failed to comply with the provisions of the national treasury regulations, the NHLS’ procurement policy, and the PFMA when she signed the SLA with Blue Future and caused the NHLS to spend almost R 90 million more than what was approved by the Board. She caused the NHLS to incur fruitless and wasteful expenditure and ultimately, she failed to perform her duties as CEO diligently and carefully as required in terms of her contract. Instead, her conduct was grossly negligent and she failed to act in the best interest of her employer. [97] In my view, Ms Mogale acted in breach of her contract of employment when she signed the SLA for R 83 million. She disregarded her obligation of due diligence and her contractual obligations, including compliance with the applicable policies of the NHLS. This is so for the reasons set out below. [202] This Court must, in considering the claim for damages, decide whether the damages were caused by the breach. The NHLS pleaded that it suffered damages as a result of the material breach of contract by the Applicants because had they performed their contractual obligations, the Applicant would not have suffered the damages. 203] The inquiry into whether the damages were caused by the breach, is a two-stage inquiry – first into factual causation and then into legal causation. However, before this Court can consider the question of causation, it must first consider whether the damages claimed were proved. "[207] The Court held that any alleged benefit received by the plaintiff had to have been pleaded and proved by the defendant for purposes of quantification: ‘The initial arbitrator also found that Mr Roux had not pleaded that the money expanded by Mr Roux had been used to acquire some asset, the value of which should been taken into account in assessing the damages. Absent that pleading and proof of the allegation it was not incumbent upon the University to prove “the nature, extent and value” of any benefit obtained as a result of the unlawful expenditure of the funds improperly allocated to the cost centres of the rugby club. I should point out though, that the “value” of the benefits related to the quantification of the damages as per Japmoco. The University would, if benefits were pleaded and proved have been required to have assisted the Initial Arbitrator in the quantification of the benefit.’[Roux v University of Stellenbosch and Others and a related matter[[2023] ZAWCHC 81; [2023] 3 All SA 248 (WCC) at para 11, Ibid at para 31.],] " [210] In my view, the damages suffered by the NHLS cannot be calculated or awarded as claimed. The damages cannot simply be the entire value of the Afrirent contract or the entire amount of the DV8 addendum. [225] In my view, the NHLS is entitled to the following damages in respect of the Afrirent contract: the BAC approved the amount of R 72 127 790.42 for the tender and instead of contracting for the amount approved by the BAC, the amount recorded in the letter to Afrirent and the SLA subsequently signed by Ms Mogale was increased to R 79 691 269.33. The difference was R 7 563 478.90. Prof Buch testified that even if the Afrirent tender was approved by the Board, the contract price could not have been increased by R 7,5 million without approval and a sound reason to increase the amount. Mitigate damages: Section 77(3) of the BCEA J502/2022 Sedumedi v Sefako Makgatho Health Sciences University (J502/2022) [2025] ZALCJHB 142 (4 April 2025) [7] On 25 April 2022 Mr Sedumedi issued action proceedings in this court, under section 77(3) of the BCEA[1], for the outstanding 18 months’ of his contract in a total amount of R2,333,649.06. [8] Mr Sedumedi’s claim for the balance of his contract is based on the common law position, set out in the Labour Appeal Court (LAC) decision of Buthelezi v Municipal Demarcation Board[2], that unless an employee breaches a material term of a fixed-term employment contract, or the fixed-term contract otherwise provides for termination on notice, the employer has no right to prematurely terminate a fixed-term contract prior to its natural end date. This would be in contrast to an employment contract of indefinite duration which may be terminated by providing reasonable, or otherwise agreed, notice. [14] The seminal cases of Natal Joint Municipal Pension Fund v Endumeni Municipality[5], Capitec Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty) Ltd[6], and University of Johannesburg v Auckland Park Theological Seminary and Another[7], all recently approved by the LAC in Herbert v Head of Education: Western Cape[8], make it clear that interpretation begins by considering the text contained in the document, then how the text is situated within its own textual context, then its extra-textual context, then finally by considering the purpose of the document. [15] Although the Constitutional Court in University of Johannesburg stressed that statutory interpretation is now a “unitary exercise” that must be approached “holistically: simultaneously considering the text, context and purpose”[9], there is no doubt that, as stated in both Endumeni[10] and Capitec[11], “the inevitable point of departure [remains] the language of the provision itself”. [39] Given that the University was not entitled to terminate Mr Sedumedi’s contract of employment, by doing so it repudiated the contract. Mr Sedumedi chose to accept the repudiation and sue for damages. The LAC in Buthelezi, referring to Meyers v Abrahamson[28] held that “The measure of damages accorded [an] employee [whose fixed-term contract has been prematurely and unlawfully terminated] is… the actual loss suffered by him represented by the sum due to him of the unexpired period of the contract less any sum he earned or could reasonably have earned during such latter period in similar employment.”[29]. 43] What must also be deduced from the total is “any sum he earned or could reasonably have earned during such latter period in similar employment” – which factor derives from Mr Sedumedi’s contractual duty to mitigate his loss.[Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd [1977] 4 All SA 94 (A)] This factor, in my view, means income that he may have actually received from being similarly employed, or income he could have received in similar employment if he taken reasonable steps to find such employment. "[44] Mr Nhlapo, appearing on behalf of Mr Sedumedi, argued that there was nothing more that Mr Sedumedi was required to do to demonstrate, at least on a prima facie basis, that he had taken reasonable steps to mitigate his loss. I agree. On this point the authors of Christie’s The Law of Contract in South Africa, with reference to Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd[32] state the following: “The plaintiff does not have to plead and prove that it has done what is reasonable to mitigate its damages, because the onus is on the defendant to prove that it has not. The plaintiff is not required to do more than a reasonable person would do to mitigate his or her damages, and the defendant's onus of proving that the plaintiff has not acted reasonably is difficult to discharge”.[33] (my emphasis)" 16.12.1 The Mine Health and Safety Act JS382/2023 Mathebe v Cullinan Diamond Mine (Pty) Ltd (JS382/2023) [2025] ZALCJHB 330 (1 August 2025) "35] The applicant has pleaded that the first respondent breached sections 9 and 11 of the MHSA. However, the applicant, on the face of it, does not seek any relief arising from or in relation to such alleged breaches. Differently put, the applicant has not requested this Court to make any findings specifically in relation to sections 9 or 11 of the MHSA. [36] Section 9 of the MHSA deals with Codes of Practice to be prepared by employers. Section 11 of the MHSA deals with an employer’s obligation to assess and respond to risk. [37] Section 82 of the MHSA provides that the Labour Court has exclusive jurisdiction to determine any dispute about the interpretation or application of any provision of that Act except where that Act provides otherwise. [38] On the face of it, this Court would indeed have jurisdiction to hear and adjudicate a dispute/claim concerning the interpretation or application of sections 9 and 11 of the MHSA. [39] However, as per the applicant’s pleadings, and as also argued by the applicant in his heads of argument, the applicant does not seek any relief specifically in regard to sections 9 and 11 of the MHSA. Rather, the applicant seeks damages and/or recompense for loss of earnings, due to an alleged workplace disease contracted by him. It appears that the applicant relied upon the alleged breaches of sections 9 and 11 of the MHSA to bolster his argument and claims for damages and reimbursement for loss of earnings, and serve as general (factual) allegations levelled against the first respondent, in support of the applicant’s alleged claims. [40] On this basis, I find that any purported dispute between the parties concerning the applicability and/or contravention of sections 9 and 11 of the MHSA is not a dispute which is legitimately before this Court " "Mine Health and Safety Act (MHSA), No. 29 of 1996: Section 9: Codes of Practice to be prepared by employers. Section 11: Employer’s obligation to assess and respond to risk. Section 82: Labour Court’s exclusive jurisdiction over disputes about the interpretation or application of the MHSA." compensation as solatium JR1794/22 Lucchini South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1794/22) [2025] ZALCJHB 589 (19 December 2025) "[59] However, several decisions have held that compensation is a solatium, and that patrimonial loss is irrelevant.[Zeda Car Leasing (Pty) Ltd v Van Dyk (2020) 41 ILJ 1360 (LAC), Association of Mineworkers & Construction Union & Others v Northam Platinum Mine Ltd (2021) 42 ILJ 2565 (LAC), ARB Electrical Wholesalers (Pty) Ltd v Hibbert (2015) 36 ILJ 2989 (LAC), Bester v Small Enterprise Finance Agency SOC Ltd & Others (2020) 41 ILJ 877 (LAC), and Bester v Small Enterprise Finance Agency SOC Ltd & Others (2020) 41 ILJ 877 (LAC).] Recently, in Le Grange v Visser t/a Skukuza Medical Practice & Another[(2025) 46 ILJ 947 (LAC).] (Le Grange), the Labour Appeal Court was called upon to determine whether compensation for a procedurally unfair dismissal should be limited to the three months that an employee was unemployed. The court described the proposition as fallacious and stated this: ‘[24] The proposition is based on a misunderstanding of the difference between patrimonial damages and a solatium. In Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union, this court explained it as follows: ‘The compensation for the wrong in failing to give effect to an employee’s right to a fair procedure is not based on patrimonial or actual loss. It is in the nature of a solatium for the loss of the right, and is punitive to the extent that an employer (who breached the right) must pay a fixed penalty for causing that loss. In the normal course a legal wrong done by one person to another deserves some form of redress. The party who committed the wrong is usually not allowed to benefit from external factors which might have ameliorated the wrong in some way or another. So too, in this instance.’ [25] Dr Visser totally disregarded Dr Le Grange’s rights. She had to endure the indignity of unemployment whilst the other employees returned to work, albeit for a short period. Compensation equal to three months' salary is wholly inadequate.’ " [61] After reviewing all the above decisions, my understanding of the legal position is that the quantum of compensation must be just and equitable for both parties, taking into account all relevant factors, including the financial loss or gain suffered or realised by an employee as a result of the dismissal, as applicable. However, the quantum of compensation is not limited to the employee's actual financial loss. Execution stay execution of a writ shown a well-grounded apprehension of execution taking place and of injustice being done to the applicant by way of irreparable harm if execution was not suspended. Other important considerations were whether the attack on the underlying cause of action was brought in time and whether its prospects of success were strong; the interest all parties had in securing finality, and related to this was the question of the cost to all parties of a delay in finality and the cost to all parties of instituting or opposing further proceedings brought to attack the underlying cause of action or to stay execution pending such an attack. In considering whether justice required a stay of execution, the court would be mindful of the risk that an injustice might be done to the less powerful party. J441/09 Bartmann AAC & Bartmann MME t/a Khaya Ibhubesi v De Lange & Another stay execution of a writ The grounds on which a court might choose to stay execution included that the underlying cause of action on which the judgment was based was under attack, and that execution was sought for improper reasons. The applicant had to show a well-grounded apprehension of execution taking place and that injustice would be done to the applicant by way of irreparable harm if execution were not suspended. Other considerations to take into account were whether the attack on the underlying cause of action was brought in time and whether its prospects of success were strong; the interest of all parties in securing finality; the cost to all parties of a delay in finality; the cost to all parties of instituting or opposing further proceedings to attack the underlying cause or to stay execution pending such attack; and the risk of injustice being done to the less powerful party to the dispute. J2264/08 Robor (Pty) Ltd (Tube division) v Joubert & Others warrant of execution to be stayed and suspended pending outcome of petition for leave to appeal J602/08 Christo Bothma Finansile Dienste v RGP Havenga & Another Execution of judgment unlawful suspension right to be back at work overrule fact getting paid. Prejudice J771/10 Mathe Zandile v The Minister of Water and Environmental Affairs Execution of judgment Other case law cited South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A). J771/10 Mathe Zandile v The Minister of Water and Environmental Affairs Labour Court CA3/2011 PROF A R COETZEE & 49 OTHERS. Labour Court not empowered to sit as arbitrator in terms of section 158(2)(b) of the Labour Relations Act- where matter had to be referred to conciliation (arbitration) an order staying the execution of an arbitration award issued by the CCMA on 7 February 2023, pending the outcome of an application for review filed in this court on 3 January 2023. J 297/2023 Molemole Municipality v Sheriff Bochum and Another (J 297/2023) [2023] ZALCJHB 40 (8 March 2023) [4] The discretion to stay an award is one that must be exercised judicially. In Robor (Pty) Ltd (Tube Division) v Joubert [2009] 8 BLLR 785 (LC), this court noted that at the heart of the enquiry, is whether the applicant has shown a well-grounded apprehension of execution taking place and of injustice being done to the applicant by way of irreparable harm being caused if execution were not to be suspended. In this sense, the approach to be adopted resonates with that applicable in applications for interim relief. The test to be applied is one in which the court must have regard to all relevant factors, including the prospects of success in the review application and the prospect and degree of prejudice to the parties respectively should the implementation of the award under review not be stayed. writ of execution : Attachment of bank account J3/25 Mokoma v M-Njr and Olwethu Consulting (Pty) Ltd and Others (J3/25) [2025] ZALCJHB 100 (11 March 2025) "Attachment of bank account –requirements for attachment of incorporeal property – writ of execution – court application not necessary " "[7] The implications of the relief as it is drafted in the notice of motion have been explained in previous cases, including in MEC, Department of Public Works and Others v Ikamva Architects and Others (Ikamva), where a full bench, referring to the Uniform Rules of Court explained the following:[2022 (6) SA 275 (ECB); [2022] ZAECBHC 13 at para 77. See also: Ormerod v Deputy Sheriff, Durban (Ormerod) 1965 (4) SA 670 (D); [1965] 4 All SA 330 (D) at 673C-H; Burg Trailers SA (Pty) Ltd and Another v ABSA Bank Ltd and Others 2004 (1) SA 284 (SCA); [2003] ZASCA 55 at para 6; Baphalaborwa Projects CC v T & L Civil Electrical Contractors CC and others 2024 JDR 2914 (GJ); [2024] ZAGPJHC 1046 at para 26.] ‘The return of service indicates that the sheriff executed the writ in terms of 'Rule 45(8)(c) read with Rule 45(12)(a)'. The difficulty with this attachment is that the two subrules are mutually exclusive. [Rule 45(8)(c)] provides for the attachment of 'other' incorporeal rights, which in the present context would have been the Department of Health's right to the moneys standing to its credit in its banking account. Importantly, this subrule does not envisage the attachment of actual moneys but rather the right to the money in the bank account. Like any movable property that is attached, the right must be realised by its sale at a sale in execution. This subrule does not place any obligation on the bank in question to pay actual moneys to either the sheriff or the judgment creditor.’" [8] The applicant’s representative is therefore not seeking to enforce Makhura J’s judgment and recover the judgment debt by asking the banks to pay him the money that the first and second respondent owe him pursuant to the taxed bill of costs as one would in a garnishee procedure. He merely seeks to attach a right, to be realised by monies raised at a sale in execution: the applicant is asking for the attachment of the first respondent’s right of action, which a bank account holder would have against its bank/s. This is incorporeal property. "11] In determining the meaning of the term “attachment order” used in the National Credit Act in the case of Nkata v Firstrand Bank Limited and Others[2], Rogers J (then sitting in the Western Cape High Court) articulated the point best: ‘Where a credit provider obtains a monetary judgment against the consumer for the outstanding amount of the loan, the court order will not include an order for the attachment of any property. In such cases, the rules of court entitle the judgment creditor to obtain a writ of execution. The writ is addressed by the registrar to the sheriff. A writ of execution is not itself an ‘order’. It is a process which may be issued where an order for the payment of money has been made. Even where the loan agreement is secured by a mortgage bond and the court declares the bonded property to be specially executable, the court’s order does not include an order for the attachment of the property. The order of executability merely entitles the creditor to levy execution on the immovable property in terms of rule 46 without first attempting execution against movables in terms of rule 45. The court does not order the immovable property to be attached; it is for the judgment creditor to determine how it will go about execution.’ (own emphasis)" [12] Put simply, a judgment creditor cannot apply to Court for an order or attachment or an order of execution – these simply do not exist. The applicant’s representative must approach the Registrar for a writ of execution. [21] In summary, an application of this nature should never have been brought before the Court for hearing. The relief sought can only be granted by the Registrar of this Court. High Court Jurisdiction Court a quo found that it was a labour matter premised on an unfair labour practice and therefore fell outside the High Court’s jurisdiction. It was argued that the claim was to enforce the rights of its members to fair administrative action as protected by s 33 of the Constitution which was clearly cognisable in the ordinary courts. Held that the claim as formulated in the application was not one within the exclusive jurisdiction of the Labour Courts and that the objection to jurisdiction of the High Court fell to be dismissed. SCA441/04 United National Public Servants Association of SA v Digomo SJ N.O.; Premier of the Provincial Government of the Northern Province; Baloyi, C & 34 Others Jurisdiction since the advent of the LRA, which applies to public sector employees, dismissals in the public domain were not dealt with as administrative acts. However, it was also noted that not all issues arising from an employment relationship were governed by the LRA, as shown in Fedlife Assurance Ltd v Wolfaardt (2002 (1) SA 49 (SCA)). Held that despite the High Court having jurisdiction to hear such a matter, relief under PAJA was not intended for a complaint arising from a procedurally unfair dismissal for poor work performance and thus the employee was not entitled to pursue the matter in the High Court. Held that a claimant could not escape the provisions of the LRA by alleging that the case involved a constitutional issue as every labour dispute could be said to do so. Therefore it was held that the employees reliance on PAJA was misplaced and that she had chosen the wrong forum to enforce it. SCA 024/05 Transnet Limited; Transnet Pension Fund & Smith, P I N.O. v Chirwa, P N N three separate claims that could arise when an employee’s contract of employment was terminated (i) infringement of the employees right in terms of the Labour Relations Act 66 of 1995 (LRA) not to be unfairly dismissed; (ii) infringement of the employees common law right of insisting upon performance of contract; and (iii) in the public sector, an infringement of the employees constitutional right to fair administrative action. 218/08 Makhanya v The University of Zululand reasons related to ill health after an incapacity inquiry was held. JR923/2013 Steenwerke v Bobbejan N.O. and Others (JR923/2013) [2016] ZALCJHB 60 (22 February 2016) the undisputed evidence that the employee could not work in a dusty environment as his lung condition would further deteriorate and even a dust mask would not protect him, should have been considered in deciding whether reinstatement would be appropriate. The undisputed evidence was that the Applicant has no alternative position that would be dust free as there is dust everywhere due to the nature of the Applicants operations. Section 18 of the Superior Courts Act J 4415/18 Moloto and Another v Kagisano Molopo Local Municipality and Others (J 4415/18) [2019] ZALCJHB 25 (21 February 2019) [39] The question is whether or not a proper case has been made out to grant leave to put the order issued by Cele J on 8 January 2019 into operation pending an appeal process. [68] In view of the aforesaid, I am not convinced that the Respondents will suffer irreparable harm in circumstances where they will have the benefit of the services rendered by the Applicants, which will eliminate the prejudice caused by paying employees who render no service and which will alleviate the increased workload of the employees who have to perform the Applicants duties in their absence. [71] Although the disciplinary proceedings are not an issue before me, it had been mentioned in the affidavits and on the facts placed before me, I fail to see the reason why the disciplinary proceedings had been stayed until the finalisation of the main application. It is certainly in the interest of all the parties that the disciplinary proceedings commence and that the Applicants be afforded their right to be heard and to put up a case in response to the allegations levelled against them. Any further delay in finalising the disciplinary enquiry is not in the interest of the parties, fairness or justice. 16.12.1 requirements of section 18(3) of the Superior Courts Act No 10 of 2013 2025/121270 TWK Agri (Pty) Ltd v De Lange and Another (2025/121270) [2025] ZALCJHB 361 (19 August 2025) "AI summary: Superior Courts Act No. 10 of 2013: Section 18(1): States that the operation and execution of a decision subject to an application for leave to appeal or an appeal is suspended unless the court orders otherwise under exceptional circumstances. Section 18(3): Allows a court to order the enforcement of a decision pending appeal if exceptional circumstances exist, and the applicant proves on a balance of probabilities that they will suffer irreparable harm if the order is not enforced, and the respondent will not suffer irreparable harm if the order is enforced." "[14] Section 18 of the SC Act provides that: ‘(1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal. (2) Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application or appeal. (3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.’ [15] Therefore, the three requirements to be satisfied in such applications are (a) exceptional circumstances, (b) proof on a balance of probabilities that the applicant will suffer irreparable harm if the operation and execution of the order are not granted interim effect, and (c) that the party against whom the order was granted will not suffer irreparable harm if the order is enforced in the interim. [16] The provision applies to applications for leave to appeal in this Court, which has a status similar to that of the High Court.[6]" Interdict Manadmus same as interdict The applicant must therefore show, amongst others, that it has a clear right worthy of protection; that it either has suffered injury or that an injury is reasonably apprehended; and that it does not have a suitable alternative remedy available. P161/07 Corning Products SA (Pty) Ltd v NUMWSA & Others existence of a clear right terminating services for operational reasons intervention in uncompleted proceedings had to be confined to cases where grave injustice would result to permit applications for review on a piecemeal basis would frustrate the expeditious resolution of labour disputes C249/09 The Trustees for the time being of the National Bioinformatics Network Trust v Jacobson & Others requirements for an interim interdict a prima facie right had to be shown; there had to be a well-grounded apprehension of irreparable harm if the interim relief was not granted and the ultimate relief was eventually granted; the balance of convenience favoured the granting of interim relief; and there was no other satisfactory remedy available. J1935/09 City of Johannesburg v SAMWU & Others S189A J2298/10 SASBO v Standard Bank of South Africa Justice was better served by letting CCMA arbitration proceedings to run their course without intervention by the court C255/09; C362/09 Southern Sun Hotel Interests (Pty) Ltd v CCMA and Others Notice of court order Inappropriate and meaningless that notice of order read in a language that employees did not speak or understand. Insufficient that notice only brought to attention of employees who might have been present at a particular time. J2630/13 Ciro Beverage Solutions (Pty) Ltd v South African Transport & Allied Workers Union and Others dismissal was in breach of his contract JS 929/14 Nwaogu v Bridgestone SA and Another (JS 929/14) [2016] ZALCJHB 104 (18 March 2016) The applicant is entitled to claim specific performance and he is not obliged to cancel the contract and claim damages at a later stage. I am also persuaded that the balance of convenience favours the applicant. The applicant will suffer irreparable harm should the relief not be granted whereas the respondent will suffer little inconvenience by simply proceeding with a process it has already started. I have also had the occasion to write a judgment about the requirements of interim interdicts in Afrisake NPC v City of Tshwane Metropolitan Municipality and Others under case number 74192/2013 dated 14 March 2014 (not reported). I also emphasized that the proper question would be whether an Applicant in interdictory proceedings required an order now so as to protect a right which he would otherwise not be able to protect at all. One does not require an interdict pendente lite to protect the right which one can in any event protecting future by, amongst others, litigation in due course. It is an absolute minimum requirement that in repairable harm must be shown to exist before the Court can grant such an interdict, and in the present context the Constitutional desirability of such an interdict weighs heavily on my mind. court does not ordinarily intervene in incomplete disciplinary proceedings Booysen v Minister of Safety & Security & others(2011) 32ILJ112 (LAC) Jibav Minister: Department of Justice & Constitutional Development & others(2010) 31 ILJ 112 (LC)at para [17] Although the court has jurisdiction to entertain an application to intervene in uncompleted disciplinary proceedings, it ought not to do so unless the circumstances are truly exceptional. Urgent applications to review and set aside preliminary rulings made during the course of a disciplinary enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters best dealt with in arbitration proceedings consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings under s 145. Trustees for the time being of the Bioinformatics Network Trust v Jacobson & others[2009] 8 BLLR 833(LC) stay of execution Rule 49 (11) J1990/15 Passenger Rail Agency of South Africa v Moreki and Another (J1990/15) [2016] ZALCJHB 288 (2 August 2016) Gois t/a Shakespeares Pub v van Zyl & Others (2003) 24 ILJ 2302 (LC) at paragraphs 32 - 36 this court will favourably consider granting the stay of execution when real and substantial justice requires such a stay or, put differently, where injustice would otherwise result. Waglay J (as he then was) had added that in exercising its discretion to grant a stay of execution, a court is not required to take the merits of the underlying attack on the causa of the writ into account. It is sufficient that there must be a possibility that the causa underlying the writ may ultimately be removed. An applicant is accordingly not required to satisfy the court of the existence of prospects of success in the principal dispute and furthermore, an application for a rescission, review or variation of an award qualifies as an attack on the causa underlying the award. an interim interdict: when the initial decision to reduce benefits had been taken CA05/2023 Herold Gie and Broadhead Incorporated v Sun Chemical South Africa (Pty) Limited (CA05/2023) [2024] ZALAC 55 (11 November 2024) [15] In short, it is clear that a party may apply for an interim interdict if it can show that it would receive relief in the future from an action of another party which infringed upon, at the very least, a prima facie right of the applicant.[Nabuvax (Pty) Ltd and others v City of Tshwane Metropolitan Municipality and others [2013] 3 All SA 528 (GNP).] [16] If a prima facie right has been established, then an apprehension of irreparable harm must be established. The test is whether there is a reasonable apprehension that the continuance of the alleged wrong will cause irreparable harm to the applicant.[3] Whatever the dispute as to whether, in this case, an interim interdict could and should have been granted by a court which would have heard the semi-urgent application, there can be no doubt that there was a clear legal basis, at the very least, for seeking some form of interim relief. In terms of an argument to establish irreparable harm, the latter would have been caused to the appellant’s clients by the continued conduct of the respondent to reduce their contributions and hence the amount of their post-retirement medical aid benefits. In short, the alleged harm continued after 1 June 2017. Joinder Definition "Matters of mutual interest" (a matter of mutual interest had to create new or destroy existing rights in the employment relationship and had to be one be one that was in the interest of both employer and employee and had to concern the common good of the enterprise: 1) Interest dispute, 2) Rights dispute. All interest disputes constituted disputes about matters of mutual interest but not all disputes about matters of mutual interest were interest disputes. (J658/14) [2014] ZALCJHB 159 Vanachem Vanadium Products (Pty) Ltd v Normal Union of Metalworkers of SA and Others whether a party has a legal interest in the subject matter, which may be affected prejudicially by the judgment of the court in the proceedings concerned JR1605/07 BHP Billiton Energy Coal South Africa Limited v CCMA & Others Other case law sited Gordon v Department of Health (337/2007) [2008] ZASCA 99. t]he test is whether a party that is alleged to be a necessary party, has a legal interest in the subject matter, which may be affected prejudicially by the judgment of the court in the proceedings concerned. JR1605/07 BHP Billiton Energy Coal South Africa Limited v CCMA & Others Other case law sited Minister of Safety v De Vos (2008) 29 ILJ 688 (LC), arbitrator or a commissioner had a duty to raise the issue of non-joinder mero motu where a party who had an interest in the matter, or who was likely to be affected by the outcome of the arbitration proceedings, had not been cited JS1698/06 Head of the Department of Education Northern Cape v Wessels & Others 191(5)(a)(i). A referral of his alternative claim to the CCMA for arbitration would have been an appropriate course for the court to have taken. (JA63/11) [2014] ZALAC 6 Solidarity obo Wehncke v Surf4cars (Pty) Ltd There are at least two reasons why the limited basis for intervention in criminal and civil proceedings watered extended to and completed arbitration proceedings conducted under the auspices of the CCMA, and why this court ought to be slowed intervene in those proceedings. The first is a policy-related reason for this court to routinely intervening and completed arbitration proceedings would undermine the informal nature of the system of dispute resolution established by the act. The second (related) reason is that to permit applications for review on a piecemeal basis would frustrate the expeditious resolution of labour disputes. In other words, in general terms, justice would be advanced rather than frustrated by permitting CCMA arbitration proceedings to run the course without intervention by this court. J1013/2011 Seepe v Thermadyne Plant Rental and Another (J1013/2011) [2016] ZALCJHB 186 (5 April 2016) National Union of Mineworkers of South Africa v Intervalve (Pty) Ltd and Others [2015] 2 BCLR 182 (CC). Constitutional Court confirmed the decision of the Labour Appeal Court, where it was held that it is not competent to seek a joinder of a party where unfair dismissal allegation was not referred against such a Respondent to the CCMA. Du Preez v LS Pressing and Another (J861/11) 2012 ZALCJHB 74 (26 July 2012) at para 18. joining parties to proceedings where a final decision has already been rendered would have the effect of a judgment being taken and enforced against the parties without their cases ever being heard. JS947/13 De Lucia v Bester and Another (JS947/13) [2017] ZALCJHB 278 (1 August 2017) National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and Others (2015) 36 ILJ 363 (CC) at para 186. The test for joinder at common law is governed by the following principles:(a) There must be a legal interest in the proceedings and not merely a financial interest.(b) A party has a right to ask that someone be joined as a party if such a person has a joint proprietary interest with one or either of the existing parties to the proceedings or has a direct and substantial interest in the Courts order and to avoid a multiplicity of actions and . . . a waste of costs. (Authorities omitted) Klaase and Another v van der Merwe N.O. and Others 2016 (9) BCLR 1187 (CC) at para 45 The test for joinder is that a party must have a direct and substantial legal interest that may be affected prejudicially by the judgment of the court in the proceedings concerned. In ITAC, this Court confirmed the test and said that a party seeking joinder must have a direct and substantial interest in the subject matter. The Court held that the overriding consideration is whether it is in the interests of justice for a party to intervene in litigation. (citations omitted) [18] Whitcher AJ (as she then was) also had an opportunity in Strydom v T-Systems SA (Pty) Ltd[(2012) 33 ILJ 2978 (LC)] to determine an application for a joinder within the context of a section 197 of the LRA claim. Having had regard to the principles enunciated in Gordon v Department of Health: KZN[(2008) 29 ILJ 2535 (SCA) at para 9, where the SCA held that;], the learned Judge held that the position in our civil law was that the mere fact that a third party was jointly and severally liable for a debt did not qualify as a direct and substantial interest in the right that is the subject matter of the dispute, and further that joint liability for a debt did not trigger the joinder of such a party by necessity, and that mere financial interest or prejudice has been held to be secondary and indirect (2008) 29 ILJ 2535 (SCA) at para 9, where the SCA held that; In the Amalgamated Engineering Union case, it was found that the question of joinder should not depend on the nature of the subject matter but on the manner in which, and the extent to which, the courts order may affect the interests of third parties. The court formulated the approach as, first, to consider whether the third party would have locus standi to claim the relief concerning the same subject matter, and then to examine whether a situation could arise in which, because the third party had not been joined, any order the court might make would not be res judicata against him, entitling him to approach the courts again concerning the same subject matter and possibly obtain an order irreconcilable with an order made in the first instance. This has been found to mean that if the order or judgment sought cannot be sustained and carried into effect without necessarily prejudicing the interests of a party or parties not joined in the proceedings, then that party or parties that have a legal interest in the matter must be joined. minister JA4/2017 Minister of Public Service and Administration and Another v Public Servants Association obo Makwela and Others (JA4/2017) [2017] ZALCJHB 409 (1 November 2017) issue for determination is whether the failure to join the Minister constitutes a non-joinder held the Minister not an interested party to the dispute the Minister having no authority over the provincial executive authorities - the role of the Minister is to advise and assist when asked to do so and not to make decisions - the Minister acts merely as the midwife to the OSD and is not affected by a decision that derives from an award resolving a dispute about the implementation of a binding collective agreement - the dispute is one between employer and employee and Minister not employer of the employee - the absence of any legal connection between the Minister and the employee seems to have been overlooked in the argument composed on her behalf. Appeal dismissed with costs. JA40/2018 Murray and Roberts (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA40/2018) [2019] ZALAC 58; [2019] 11 BLLR 1224 (LAC); (2019) 40 ILJ 2510 (LAC) (20 August 2019) [24] It is a trite proposition of law that a person must be joined as a party to court proceedings if that person has an interest which is of such a nature that she (or he, or it) may be prejudicially affected by the judgment in the proceedings.[9] The true test for a joinder has also been said to be whether the person has a direct and substantial interest in the proceedings.[10] It is generally accepted that direct and substantial interest means a legal interest in the subject matter of the proceedings (i.e. litigation) which could be prejudicially affected by the judgment of the court.[11] [25] In Cape Bar Council,[2013 (1) SA 170 (SCA) (Cape Bar Council) para 12] the Supreme Court of Appeal reiterated those basic tenants of the law. The joinder of a party is only required if it is a matter of necessity, and not for convenience. The mere fact that the party has an interest in the outcome of litigation does not warrant its joinder, and the interest must be direct and substantial in the sense mentioned earlier. Similarly, in Makwela, this Court confirmed those principles. This Court specifically held that in court proceedings regarding a claim founded on a contract, a person that was not a party to the contract and had no rights or obligations in respect of it, did not have to be joined as a party. J2217/18 National Union of Public Service and Allied Workers ("NUPSAW") and Others v General Secretary of the Public Health and Social Development Sectoral Bargaining Council and Another (J2217/18) [2018] ZALCJHB 281 (4 September 2018) [49] The objection of non-joinder may be raised where the point is taken that a party who should be before Court, has not been joined or given judicial notice of the proceedings. The substantial test is whether the party that is alleged to be a necessary party for joinder, has a legal interest in the subject matter of the litigation, which may be affected prejudicially by the judgment of the court in the proceedings concerned Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa, Volume 1. whether a party which was not party to initial proceedings can be joined J2205/18 Mabaso v Enicker and Another (J2205/18) [2018] ZALCJHB 337 (18 September 2018) Wallejee and Another v FCSA Organisation Service (Pty) Ltd and Another (2015) 36 ILJ 1943 (LC) a judgment or order cannot be enforced against a party that was not cited as a party in the proceedings which led to the granting of the order. The basis of that conclusion, and further placing reliance on Ngema and Others v Screenex Wire Weaving Manufacturers (Pty) Limited and others[8] was that a party sought to be cited in those proceedings must have been afforded the opportunity to be heard in relation to its potential liability to the applicant. Ngema and Others v Screenex Wire Weaving Manufacturers (Pty) Limited and others (2012) 33 ILJ 681 (LC) at para 22 Dutch reform church entities joinder JS725/2023 Schultz v Congregation of the Dutch Reformed Church Horizon North and Others (JS725/2023) [2024] ZALCJHB 391 (7 October 2024) The applicant’s application to join the first respondent is granted, subject to the applicant’s compliance with the provisions of Rule 52(4) and (5) read with Rule 35 of the Rules of Court, to the extent that the Court lacks jurisdiction in respect of any dispute against the Sixth Respondent. 2. The application to join the Second to Fifth Respondents is dismissed. "CONGREGATION OF THE DUTCH REFORMED CHURCH HORIZON NORTH First Respondent CHURCH COUNCIL OF THE CONGREGATION OF THE DUTCH REFORMED CHURCH HORIZON NORTH Second Respondent ROODEPOORT PRESBYTERY OF THE DUTCH REFORMED CHURCH Third Respondent GOUDLAND SYNOD OF THE DUTCH REFORMED CHURCH Fourth Respondent GENERAL SYNOD OF THE DUTCH REFORMED CHURCH Fifth Respondent DUTCH REFORMED CHURCH OF SOUTH AFRICA Sixth Respondent" "[8] The Church Order establishes the Church and makes provision for the establishment of various structures, viz, (a) The ‘Congregation’, which is the primary employer of the applicant as pastor; (b) The ‘Church Council’, which is responsible for inter alia, oversight and governance of the ‘Congregation’ and supervision of the pastor serving the ‘Congregation’ for which the relevant ‘Church Council’ is responsible. (c) The ‘Presbytery’, which is responsible for the supervision and discipline of all pastors, and exercises powers of supervision concurrently with the ‘Church Council’. The applicant contends that it is this structure that is responsible for initiation and management of discipline against pastors of the Church. (d) The ‘Goudland Synod’, which the applicant deems as the ‘head office’ of the Church in the area of its jurisdiction, and which prescribes through the Church Order, the conduct of pastors (e) The ‘General Synod’, which has overall responsibility to grant competence to be called as Minister of the Church as well as the retention and termination of Minister’s status. [9] The applicant contends that only the Church is a separate legal personality through the Church Order and that each of its structures played a significant role in his employment, discipline and dismissal, hence their joinder is sought." Jurisdiction prima facie right C249/09 The Trustees for the time being of the National Bioinformatics Network Trust v Jacobson & Others Not delictual matters. Only sec 77(3) BCEA J1621/08 Ndlovu & Others v SACCAWU misconduct outside workplace and outside of working hours JR1655/07 Dolo v CCMA & Others Not tax matters Settlement agreement order court J1907/2010 LSRC and Associates v Blom Territorial Locality of employer or enterprise JR149/2010 Global Outdoor Systems Limited v Du Toit & Others Certificate of outcome did not confer jurisdiction on arbitrator to do anything that it was not empowered to do the court did not have jurisdiction at that stage C717/10 Mickelet v Tray International Services and Administration (Pty) Ltd Certificate of outcome did not confer jurisdiction on arbitrator to do anything that it was not empowered to do Other case law cited Distinguishing the matter from that in Fidelity Guards Holdings (Pty) Ltd v Epstein NO and Others (2000) ILJ 2382 (LAC), the court held, following Bombardier Transportation (Pty) Ltd v Mtiya and Others (2010) 31 ILJ 2065 (LC), C717/10 Mickelet v Tray International Services and Administration (Pty) Ltd CCMA nature of its business, it fell within the jurisdiction of MIBCO the CCMA did not exercise its assumption of jurisdiction in terms of s 147(3) of the Labour Relations Act JR 1800/09 Pankana CC t/a R&W Transport Components v Dreyer NO and Others illegal foreigner employee could not lawfully tender her services and was therefore not entitled to any remuneration and that the claim was actually one under the Basic Conditions of Employment Act 75 of 1997 beside the point C255/09; C362/09 Southern Sun Hotel Interests (Pty) Ltd v CCMA and Others CCMA issuing certificate Other case law cited EOH Abantu (Pty) Ltd v CCMA and Another (2008) 29 ILJ 2588 (LC) commissioner was bound to decide any jurisdictional point raised in conciliation proceedings before issuing a certificate of outcome, and that his failure to do so constituted a reviewable irregularity JR 2672/08 Siemens Ltd v CCMA and Others CCMA issuing certificate Other case law cited Bombardier Transportation (Pty) Ltd v Mtiya and Others JR 644/09 (11 March 2010) fell within the power of the CCMA to determine in the course of the arbitration proceedings and are not necessarily to be determined prior to conciliation taking place JR 2672/08 Siemens Ltd v CCMA and Others commissioner could only arbitrate if no party had objected to the matter being dealt with as a con-arb JR 1207/06 Modikwa Platinum Mine (Pty) Ltd v CCMA and Others causa continua, conjunction causarum connexitas causarum and the once and for all rule Court holding that these principles not appropriate in labour law JS21/08 Goussard v Impala Platinum Ltd reason for the dismissal providing the forum to which dispute should serve and in that regard simply provided that forum with provisional jurisdiction Thus Labour Court has provisional jurisdiction. JS21/08 Goussard v Impala Platinum Ltd Labour Court does not have jurisdiction to entertain unfair dismissal disputes relating to misconduct JR2148/08 Saga Moses Mahlangu v Minister of Sport and Recreation Authority Labour Court: The best evidence in such matters is a copy of the resolution authorising the agent to act, this may not be necessary depending on the nature of the challenge to authority. Noted further that even the deponents averment that he was duly authorised to make the affidavit might be sufficient to establish authority JS1034/01 Roebuck v Aerial Excellence CC & Another Territorial an international contract and private international law would have to be used to determine the jurisdiction and the applicable law (noting that these concepts, while nevertheless connected, are conceptually distinct). Noted that parties are free to agree in the contract on the legal system which ought to apply to the contract, but in the absence of such agreement the Court must make that decision. Held that in doing so the LC should apply an objective test. . Held, in particular, that the workplace of the employee, while an important factor, was not decisive in determining the appropriate jurisdiction P151/01 Kleinhans v Parmalat SA (Pty) Ltd ; contract of employment subjected him to the company’s human resources policies which make reference to the LRA and the BCEA; parties implicitly chose South African law to apply to the contract and that the Labour Court had jurisdiction C190/04 Parry, Roger v Astral Operations Ltd Delictual damages of employer Switching of machines during strike the Labour Court had jurisdiction to decide delictual claims arising out of labour disputes as envisaged in s 67 of the LRA relying on the doctrine of vicarious liability, had to prove that a wrongful act had been committed by someone for whom the union was responsible, causing a foreseeable loss; the employer had to prove that the union was a socius criminis as it could not be held liable if the act of authorising its agent was not criminal; none of the evidence had proved whether employees allegedly involved were identified union members D622/02 Mondi Limited Mondi Craft Division v CEPPWAWU & Individual employees Out of time referring statement of case E/r entitled sit back await next move CA 11/08 Booysen Bore Drilling (Pty) Ltd v National Union of Mineworkers and Another Nature of dispute Nature of dispute before court to be decided by court and not bound by a party’s description of it Collective agreement provided for private arbitration and court had no jurisdiction. (JS 884/2011) [2013] ZALCJHB 266 Aucamp v SARS Territorial The CCMA had jurisdiction to hear a dispute referred to it by employees of a South African TES even if the employees were placed with clients outside of South Africa. The logical place where a TES conducted its labour broking service was where it recruited and procured labour and not the place where its clients had their operations. (JR455/12) [2013] ZALCJHB 195 MECS Africa (Pty) Ltd v CCMA and Others Protected disclosure Dispute concerning an occupational detriment other than dismissal. Effect of amendments to LRA brought about by protected disclosures legislation. Legislature envisaging that these disputes to be heard by Labour Court. The court noted that the LRA, in dealing with the right of an employee to refer a dispute, used the word may because it would be ludicrous if the statute obliged employees to refer all labour disputes to tribunals or to the court and used the peremptory shall. It noted further that s 186(2)(d) had been added to the LRA in the 2002 amendments in the wake of the promulgation of the Protected Disclosures Act 26 of 2000 and it was clear that the latter Act contemplated a distinction between the unfair labour practices which were contained in Schedule 7 and those provided for in s 186(2)(a), (b) and (c): the distinction being that an unfair labour practice in terms of para (d) could be referred to the Labour Court while the original unfair labour practice dispute could be referred to arbitration. (C484/2012) [2014] ZALCCT 3 IMATU v Witzenberg Municipality Dismissal by operation of law. Bargaining Council has no jurisdiction. Section 158(1)(h) LRA review by Labour Court. (JR 2934/11) [2014] ZALCJHB 8 Public Servants Association obo Lessing v Safety and Security Services Bargaining Council and Others Existence of dsmissal. Correctness test applicable in jurisdictional dispute whereas reasonableness standard applicable to factual findings. Senior manager told that she should resign and left her office without resigning held not to have been dismissed on the facts. (DA10/2012) [2014] ZALCJHB 32 Jonsson Uniform Solutions (Pty) Ltd v Brown and Others Bargaining Council demarcation. MIBCO vs MEIBC. Depending on the dominant activity (that is the manufacturing of either light or heavy trailers), the whole enterprise would fall under one or the other bargaining council and the parties had been invited to submit further evidence in that regard. (JR2977/07) [2014] ZALCJHB 77 Henred Fruehauf (Pty) Ltd and Another v Marcus NO and Others Territorial jurisdiction Contract concluded in the UK and employee required to work only in UK. Head office situated in South Africa. Employee was South African. He was obliged to work overseas for an agreed fixed term with no right to return to South Africa. No jurisdiction. South African Tourism v Monare and Others Section 17(3)(a)(i) of the Public Service Act 103 of 1994. that a parallel system of review for action which fell outside of the strict definition of administrative action in terms of the poorly drafted PAJA had developed. No dispute to the Bargaining Council. open to review in terms of s 158(1)(a) of the LRA on the grounds of legality. Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) at para [44] (CA4/2013, CA5/2013) [2014] ZALAC 13 MEC for the Department of Health, Western Cape v Weder; MEC for the Department of Health, Western Cape v Democratic Nursing Organisation of South Africa obo Mangena Territorial jurisdiction Employee employed by a South African registered company to work in the DRC. Misconduct allegedly committed in the DRC. Contract entered into in South Africa and dismissal taking place in South Africa .CCMA having jurisdiction. (D1118/12) [2014] ZALCD 15 Redis Construction Africa (Pty) Ltd v CCMA and Others Labour Court and Bargaining Council Jurisdictional point could be raised at any stage of proceedings, including at the hearing of the matter. (JS 619/13) [2015] ZALCJHB 7 Tshehla v Emfuleni Local Municipality Discrimination CCMA jurisdiction to conciliate and not Bargaining Council (JS 619/13) [2015] ZALCJHB 7 Tshehla v Emfuleni Local Municipality A declarator sough: finding that the dismissal was unlawful would not justify. First follow procedures laid down in the LRA. (D1035/14) [2015] ZALCD 6 Ravhura v Zungu NO and Others Interdict: Disciplinary hearing. Court no Jurisdiction, go to CCMA (D827/13) [2015] ZALCD 14 Reddi v The University of KwaZulu Natal 194(2) of the LRA; Discretion to award compensation in cases of substantive unfairness the extent to which the employer has deviated from the norm required of him; requires that an award of compensation must be just and equitable; there is no express provision in (2) that allows compensation not to be awarded in respect of any unreasonable delay on the part of the employee (although this may be taken into account under the notion of just and equitable) DA3/01 HM Leibowitz (Pty) Ltd t/a The Auto Industrial Centre Group of Companies v Fernandes Compensation Johnson & Johnson v CWIU Compensation The court should nevertheless be careful to ensure that the purpose of the compensation is to make good the employees loss and not to punish the employer. Compensation monetary compensation for a procedurally unfair dismissal has in the past been said to be a form of solatium Compensation Compensation CCMA; must give reasons JR284/09 William Mohlakoana v The Commissioner, Commission for Conciliation, Mediation and Arbitration & Others Compensation Remuneration section 194 of the LRA was to the total salary an employee had been receiving at the time of his dismissal JR2649/09 Solidarity obo Bouwer v Arivia (Pty) Ltd trading as Arivia.Kom & Others Compensation* CCMA awarding compensation for unfair dismissal as employee not seeking reinstatement; Court on review awarding reinstatement; Labour Court not able to present; substitute commissioners award unless exceptional circumstances DA6/07 Boxer Superstores (Pty) Ltd v Zuma & Others Compensation (s 194 LRA); Not the same as back pay 194 CCT88/07 Equity Aviation Services (Pty) Ltd v CCMA & Others Jurisdiction. the LRA does not permit parties to join in the dispute resolution process midway, and that parties may not join the action after conciliation. J2114/00 NUMSA (sic) v Alston SA Powers LC is a superior court with power to regulate its own procedures. Held that the procedure adopted in casu served the same purpose as Rule 11 is meant to achieve and avoided unnecessary delay. D893/00 De Laan v Van Dyck Carpert (sic) Company Pre-trial meeting employee to raise an issue not recorded as in dispute in the pre-arbitration minute purpose of a pre-arbitration meeting is to enable the parties to try and redefine issues as emerge from the pleadings and that generally parties are bound to argue only those issues identified as being in dispute in the pre-arbitration minute. Held: In this case, the [council] agreement specifically enjoins parties to attempt; they limited the issues to those recorded in the minute must be deemed to have been their election to limit the issues to those recorded. JR1774/01 Minister of Safety and Security v Mashego NO & Others Procedure Exception: When an exception is raised against a statement of claim, this Court must consider, having regard to what I have said above, whether the matter presents a question to be decided which, at this stage, will dispose of the case in whole or in part. If not, then this Court must consider whether there is any embarrassment that is real and that cannot be met by making amendments or providing of particulars at the pre-trial conference stage an exception that a pleading is vague and embarrassing, that the applicant on exception must show that it would be seriously prejudiced should the pleading be allowed to remain (at [22] and [26], referring to International Tobacco Co v Wolheim & Others 1953 (2) SA 603 (A) C966/02 Harmse v City of Cape Town rescission Attorney negligence (a) should not show disinterest in the conduct of his own case; (b) must maintain close contact with his attorneys; (c) must have no reason to distrust his attorneys competence to look after his affairs. These factors weigh more heavily on an applicant or plaintiff in a matter J3263/99 Fuller v Megacor Holdings Jurisdiction - Noted that in terms of s172(2) of the Constitution, read with s157(1) of the LRA, the LC has jurisdiction to make an order concerning the validity of an Act of Parliament J2953/00 Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO & Others Procedure Amendment of admission Where [an] amendment involves the withdrawal of an admission, the party seeking the indulgence must provided the Court with a full explanation to convince the Court of the bona fides of the party seeking the amendment. A satisfactory explanation of the circumstances in which the admission was made and the reason for seeking to withdraw it (sic). If the result of allowing the admission to be withdrawn is to cause prejudice or injustice to the other party to the extent that a special order as to costs will not compensate him, then the application to amend will be refused C552/01 Papier & Others v The Minister of Safety and Security & Others Procedure Joinder Rule 22 of the Labour Court allows for joinder after conciliation proceedings and nowhere specifies that a party may be joined only after participating in conciliation. Held that the Court has discretion to join parties even if they did not participate in conciliation J1112/99 Mokoena, Ronald & Others v Motor Component Industry (Pty) Ltd; ZL Lemforder (Pty) Ltd; Auto Industrial Spartan (Pty) Ltd & Mr Dean Cataldo Fragale defence of lis pendens objection failed because the Labour Court exercises an equity jurisdiction and may take different considerations into account from the High Court J619/05 Transman v SA Post Office Application to make Award order of court Opposed the party opposing such application must show that the review has reasonable prospects of success: Ntshangane v Specialty Metals CC ([1998] 3 BLLR 305(LC)) C226/04 National Education Health & Allied Workers Union (obo M Vermeulen) v The Director General: Department of Labour Withdraw action an applicant who withdrew was in the same position as an unsuccessful litigant: Germishuys v Douglas Besproeingsraad (1973 (3) SA 299 (NC)) that this was not a general principle covered by the provisions of s 162 of the LRA C329/05 Van den Berg, PJ v SAPS Review "Misconduct" the meaning of misconduct (of an arbitrator) had been examined in both Hyperchemicals International v Maybaker Agrichem (1992 (1) SA 19 ILJ 799 (LC)) and Abdull & Another v Cloete NO & Others ((1998) 19 IJ 799 (LC) P539/02 United National Breweries (SA) v CCMA; Bono L N.O. & FAWU obo Mlonyeni Review gross irregularity related to the procedure adopted and not to an incorrect judgment (see Ellis v Morgan, Ellis v Desai (1909 TS 576); Goldfield Investments Ltd & Another v City Council of Jhb & Another (1938 TPD 551) and County Fair Foods (Pty) Ltd v CCMA & Others ((1999) 4 LLD 459 (LAC) P539/02 United National Breweries (SA) v CCMA; Bono L N.O. & FAWU obo Mlonyeni Reinstatement there were conflicting LAC judgments on this issue but that since there was no limitation or capping on reinstatement in the Act, the Court was competent to award reinstatement beyond a 12-month period. JS 614/04 SACCAWU; Moletsane, SS; Tekane, N & Jonas, T P v Primserv ABC Recruitment (Pty) Ltd t/a Primserv Outsourcing Incorporating (Reg 1997/18792/07) Jurisdiction; Territorial the Court could acquire jurisdiction over foreigners (perigrini) without an attachment to found such jurisdiction if either party submitted to the jurisdiction of the Court; held that all litigants were resident in SA and therefore incolae not perigrini. D 102/06 Moslemany IEL v Unilever PLC & Unilever SA Foods Rescission JR 2774/2012 NATIONAL PROSECUTING AUTHORITY The applicable legal principles regulating the rescission of an order granted in the absence of a party are based on a threshold of good cause shown. Specifically, this requires the applicant to furnish a reasonable explanation for its absence on 12 May 2015 when the order sought to be rescinded was granted, the application must be bona fide and the applicant must show on a prima facie basis that it has a bona fide case to present in respect of that application. Graaff-Reinet Municipality v Van Rynevelds Pass Irrigation Board,[15] the Appellate Division defined the term jurisdiction in relation to courts as the power or competence of a court to hear and determine an issue between the parties.[16] The definition was accepted and applied by the Constitutional Court in Gcaba v Minister of Safety and Security automatic termination of the employment contract at the behest of a third part J2834/16, J2845/16 AMCU and Others v Piet Wes Civils CC and Another (J2834/16, J2845/16) [2017] ZALCJHB 7; (2017) 38 ILJ 1128 (LC); [2017] 5 BLLR 501 (LC) (13 January 2017) [19]On the facts of the case before me, I hold a similar view. The contract was not intended to be for a fixed duration, or to terminate on the occurrence of a specified event or the completion of a specified task or project as contemplated by s 198B(1). And to place the construction of a specified event on the cancellation of the Exxaro contract would, in my view, go beyond the intention of the legislature. The very purpose of the enactment of s 198B was to provide security of employment, except in circumstances where a fixed term contract is clearly justified, such as seasonal work or employment to carry out a specific task or to do so within a specified period. To make the workers employment contingent upon the whims of a third party that can simply terminate the contract between it and the employer on notice, does not fit that purpose. The employers have not, in my view, discharged the onus of showing that there was a justifiable reason to employ the workers on a fixed term contract for more than three months, as contemplated by s 198B(3)(b). The employment contracts were either of an unlimited duration or must be deemed to be of an indefinite duration as contemplated by s 198B(5). SATAWU obo Dube & ors v Fidelity Supercare Cleaning Service Group Ltd [2015] 8 BLLR 837 (LC); (2015) 36 ILJ 1923 (LC) para [51]. Given the expressions about the decisions by this court in Mampeule[12], Nape[13]and Mahlamu[14], supra, the view expressed in Twoline Trading above cannot be correct. A contractual provision that provides for the automatic termination of the employment contract at the behest of a third party or external circumstances beyond the rights conferred to the employee in our labour laws undermines an employee’s rights to fair labour practices [and] is disallowed by labour market policies. It is contrary to public policy, unconstitutional and unenforceable (Grogan The Brokers Dilemma 2010Employment Law6). This view is clear from all the decisions referred to above, and it is apparent from these that labour-brokers may no longer hide behind the shield of commercial contracts to circumvent legislative protections against unfair dismissal. The freedom to contract cannot extend itself beyond the rights conferred in the constitution, as for instance, against slavery. Sindane v Prestige Cleaning Services [2009] 12 BLLR 1249 (LC). Mahlamu v CCMA [2011] 4 BLLR 381 (LC). Appealable test JA27/14 Clencor (Pty) Ltd v Mngezana N.O. and Others (JA27/14) [2018] ZALAC 2 (25 January 2018) susceptible to appeal The decision must be final in effect and not susceptible of alteration by the court of first instance; second, it must be definitive of the rights of the parties; and it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings Cilliers NO and Others v Ellis and Another (200/2016) [2017] ZASCA 13 (17 March 2017). dismissal: no evidence of dismissal other than letter of demand JS 29/14 Chemical Energy Paper Printing Wood & Allied Workers Union and Others v MR IS Wilson t/a ISW Pale (JS 29/14) [2018] ZALCJHB 444 (12 June 2018) [13] At the very least, to establish evidence on which a court could conclude that a dismissal had taken place at that stage, either the applicants needed to put the respondent on terms to pay them according to the previous arrangement, failing which they would accept the breach and pursue a claim for unfair dismissal and, or alternatively contractual damages, or alternatively, they needed to lead some evidence of other unequivocal the employer terminating the relationship. On the evidence led, ignoring once again what was pleaded, at best the applicants provided evidence of a potential unprotected lockout. business rescue proceedings D1051/19 Marques and Others v Group Five Construction (Pty) Ltd and Others (D1051/19) [2019] ZALCJHB 330; (2020) 41 ILJ 677 (LC) (25 July 2019) Labour Court having no jurisdiction to uplift moratorium on legal proceedings-power belongs to the High Court exclusively [16] In the light of the decisions in Chetty, Burda, Sondamase and Shiva Uranium it seems that the weight of authority is against this court assuming the mantle of the High Court to uplift the moratorium on legal proceedings imposed by section 133 (1). That is not to say that justified circumstances may exist for the High Court to do so in instances where permission to uplift the moratorium has been refused by the business practitioner. But that is not a claim that can be pursued in this court. Dispute must be referred for conciliation J183/2018 Dlamini and Others v Sedtrade and Another (J183/2018) [2019] ZALCJHB 363 (12 November 2019) National Union of Metalworkers of SA v Intervalve (Pty) Ltd(2015) 36ILJ363 (CC) the court held that in any dismissal dispute, this court has no jurisdiction if the dispute was not referred to conciliation. At paragraph 108 of the judgment, Zondo J (as he then was) noted that this court does not even have a discretion to adjudicator dismissal dispute that has not been referred to conciliation. Mr Tlali, who represented the applicants, conceded that in so far as the applicants claim is one of unfair dismissal, there had been no referral to the CCMA. That being so, it is manifestly clear that this court lacks jurisdiction to entertain any claim of unfair dismissal made by the applicants. Mr Tlali urged me to refer the matter to the CCMA for conciliation. That is not a course of action that is open to the court. The applicants are required to make a proper referral in terms of the LRA and to the extent that the referral will be made outside of the prescribed time limit, it will be necessary for them to apply for condonation. cannot, by any stretch of imaginative interpretation, be read as intending to provide for the determination of delictual claims arising from breach of an employment contract J2039/19 Heightsafety Training Academy (Pty) Ltd v Mose and Others (J2039/19) [2019] ZALCJHB 326 (22 November 2019) In my view, it would require a very elastic and strained reading of that provision to interpret it as extending to cloaking the court with jurisdiction to entertain delictual claims arising from a contract of employment. Although it is true that a delictual claim can arise from a breach of contractual obligations, unlike the determination of a dispute about the enforcement of a restraint agreement, the determination of the delictual claim is not primarily concerned with the enforceability of contractual obligations. Unlawful dismissal J 346/20 National Union of Public Service and Allied Workers (NUPSAW) obo Members and Another v Gauteng Department of Infrastructure and Development and Others (J 346/20) [2020] ZALCJHB 169 (5 June 2020) [53] In summary: The Applicants approached this Court for relief in terms of the LRA and the cause of action as pleaded by the Applicants is one of unlawfulness, based on the alleged unlawful conduct by the Department. The Applicants claim of unlawful termination of their contracts is not a claim contemplated by the LRA and the LRA does not confer jurisdiction on this Court to grant relief on the Applicants pleaded case. There is no remedy that this Court can afford the Applicants to the extent that they claim that the termination of their contracts was unlawful. Territorial jurisdiction JR827/18 Lime Global Ltd v Myhill E N.O and Others (JR827/18) [2020] ZALCJHB 144 (21 August 2020) [13] What the first respondent appears to have overlooked is that the rationale behind the decision in Astral was based on the courts consideration of the nature and extent of the business carried on in Malawi (in that case) where the respondent, Parry, was employed. The first respondent also apparently overlooked the decision of the Labour Appeal Court in Monare v South African Tourism and Others.[(JA45/14) [2015] ZALAC 47; [2016] 2 BLLR 115 (LAC); (2016) 37 IU 394 (LAC) (11 November 2015)] In these matters, it was clear that the employer did fall within the "territorial" jurisdiction of the CCMA and the question that arose was whether the employee, who worked outside the territorial jurisdiction of the CCMA fell within the jurisdiction of the CCMA. [14] In Monare, the court said: “What is clear from both Astral and Genrec Mei is that the undertaking where the employee was employed (i.e. and which was situated beyond the territorial jurisdiction of the respective fora in each of those cases), has to be separate and divorced from the employer's undertaking which is located within the jurisdictional territory of the relevant forum".[13] [15] There is no evidence to suggest that the applicant conducted a "separate" and "divorced" undertaking in South Africa. At all times the third respondent operated as an employee of the applicant serving its business in the United Kingdom "remotely" from South Africa. (As it appears did a number of its employees in various other countries). It is clear from both the third respondent's evidence and her documentation that the applicant's business was in fact based in the United Kingdom. Bargaining Council demarcation JR 2596/2018 National Union of Metalworkers of South Africa v Commission for Conciliation, Mediation and Arbitration and Others (JR 2596/2018) [2021] ZALCJHB 29 (4 March 2021) Civil engineering vs Mining In effect, Andru ran the mine on behalf of the mine owners. In the present instance, the third respondent was contractually committed to moving earth, and but for the ad hoc in limited circumstances described by Scheepers, it did not excavate coal. It was paid according to the amount of bulk material moved. It did not run the mine on behalf of South 32. [33] In summary, the arbitrator correctly found that there was no evidence that the third respondent was responsible for the beneficiation of any mineralised material, he correctly found that the third respondent was contracted to move bulk material from one point on the mine to a designated stockpile, and that he correctly determined that the third respondent carried out one business, being civil engineering. [34]...What the applicant ignores is that the focus in a demarcation enquiry is not on individual activities or on the association between the employer and its client, or between the client and the employers employees. The focus is on the purpose for which the employer and the employee are associated. To focus on a single, incidental activity which in the scheme of things is insignificant and to seek to elevate that activity to the purpose of association, is to entirely misconstrue the nature of the test to be applied. Unlawfulness claim JR 401/2021 South African Municipal Workers Union obo Makofane v Matjhabeng Municipality and Another (JR 401/2021) [2021] ZALCJHB 72 (31 May 2021) [22] In Gcaba (supra) the Constitutional Court confirmed that if the pleadings, properly interpreted, establish that the applicant is asserting a claim under the LRA, one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction (at paragraph 75). The corollary is that if the pleadings disclose that the applicant is not asserting a claim in terms of the LRA (or any other law) that is to be determined exclusively by this court, or a claim that engages this courts concurrent constitutional jurisdiction under section 157 (2), then this court has no jurisdiction. Given that the applicant in the present instance asserts neither, I fail to appreciate the basis on which this court has jurisdiction to entertain the application. How to deal with jurisdictional points JR1544/18 Sihlali and Others v South African Local Government Bargaining Council and Others (JR1544/18) [2021] ZALCJHB 199 (29 July 2021) [32] I agree that this jurisdictional issue was intricately linked to the merits of the dispute and that it was irregular for the second respondent to have made a jurisdictional determination without hearing any evidence and engaging with the merits of the matter.[33] In any event, the question of whether the applicants were employees of the City, is not a jurisdictional issue as ordinarily raised or in the true sense, rather it’s an issue that is best dealt with together with determining whether there was an unfair dismissal. This was confirmed in Bombardier Transportation (Pty) Ltd v Mtiya NO and others[[2010] 8 BLLR 840 (LC)], where the Court held; The first step in this approach is to recognise that many jurisdictional issues raised by parties in conciliation proceedings are not jurisdictional questions in the true sense. For example, whether a person is an independent contractor or an employee as defined in section 213 of the LRA is more properly a question that falls within the power of the CCMA to determine in the course of the arbitration proceedings (ie the adjudication stage of the matter) in relation to a dispute before it. It is not a question that must necessarily be determined prior to conciliation taking place, nor is it a jurisdictional question contemplated by rule 14 of the CCMAs Rules. A challenge to the CCMAs jurisdiction on the basis that there was no dismissal falls into the same category. New ground of review can be raised during arguments regarding jurisdiction JR 1106/16 Bogoshi v Commission for Conciliation, Mediation and Arbitration and Others (JR 1106/16) [2021] ZALCJHB 186 (2 August 2021) [60]...New grounds of review cannot be raised in argument.[Northam Platinum Ltd v Fganyago No and Others (2010) 31 ILJ 713 (LC) at para 27; SA Post Office v Commission for Conciliation, Mediation and Arbitration and Others (2018) 39 ILJ 1350 (LC) at para 30; ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman NO and Others (2013) 34 ILJ 2347 (LC) at para 32.] However, I do accept that the argument raised by the applicant as above concerns one of jurisdiction of the CCMA to have conducted the arbitration in the first place, and that is an issue that can be competently raised even if not specifically pleaded as a ground of review. The reason for this is that it is up to this Court to decide, de novo, and for itself, whether the CCMA indeed had jurisdiction in a particular case.[Eskom Holdings SOC Ltd v National Union of Mineworkers on behalf of Kyaya and Others [2017] 8 BLLR 797 (LC) at para 32; Nama Khoi Local Municipality v SA Local Government Bargaining Council and Others (2019) 40 ILJ 2092 (LC) at para 16.] Since it is pertinently raised by the applicant, I will thus consider this jurisdictional issue. As held in SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others[(2008) 29 ILJ 2218 (LAC) at para 40. See also Qibe v Joy Global Africa (Pty) Ltd: In re Joy Global Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 1283 (LAC) at para 5; Universal Church of the Kingdom of God v Myeni and Others (2015) 36 ILJ 2832 (LAC) at para 27.]:The CCMA is a creature of statute and is not a court of law. As a general rule, it cannot decide its own jurisdiction. It can only make a ruling for convenience. Financial Sector Regulation Act (FSR Act)[Act No. 9 of 2017, as amended.] J2383/19 Dumakude v Nedbank Group (J2383/19) [2022] ZALCJHB 40 (7 March 2022) [21] I was referred to the judgment of Muthusamy v Nedbank Ltd[(2010) 31 ILJ 1453 (LC).] (Muthusamy). The facts of that case are very similar to the current case, except that the employee in that case, sought to interdict the employer from proceeding with a post termination RED enquiry and placing his name on RED and that after resigning, he filed a constructive dismissal dispute. The Court declined to entertain the matter and held that it had no jurisdiction. Honourable Court does not have jurisdiction to order the removal of the Applicant on RED LISTING. exceptio res judicata, in the form of the rule against collateral challenges JR 2113/21 Woolworths (PTY) Ltd v Phala N.O. and Others (JR 2113/21) [2022] ZALCJHB 265 (16 September 2022) [18] A further reason why the CCMA had no jurisdiction to entertain the unfair labour practice dispute is a rule allied to the exceptio res judicata, in the form of the rule against collateral challenges. That rule seeks to prevent a party avoiding the consequences of an order issued against it by going to another forum, and provides that a party is not entitled to launch a collateral challenge against an earlier juridical act unless and until the earlier act is set aside (see NEHAWU obo Kgekwane v Department of Development, Planning and Local Government, Gauteng (2015) 36 ILJ 1247 (LAC), at paragraph 26). The referral of the unfair labour practice dispute was nothing less than a collateral challenge in the face of the judgment and order by Mahosi J. CCMA: job seeker JR1708/20 Oageng v Mfati N.O. and Others (JR1708/20) [2022] ZALCJHB 336 (28 November 2022) [9] The third respondent contends that the applicant failed to make full disclosure to its satisfaction in relation to his criminal charge of culpable homicide. As a result, it invoked clause 20.3 of the offer of employment. The applicants counsel, Mr Hulley SC, tore this contention to shreds as clause 20.3 refers to a criminal conviction as opposed to a criminal charge. I agree that the third respondents contention is untenable. Embassies and Consulates enjoy general immunity from the South African courts JR2186/21 Pitja v CCMA and Others (JR2186/21) [2023] ZALCJHB 79 (16 March 2023) [13] Section 5(1) indicates that immunity does not apply where the contract was entered into within South Africa and is performed mainly in South African. He worked in the Johannesburg area. Further, he is a South African. In terms of sub-section, jurisdiction exists. "[14] However, section 5(2)(b) sets out where section 5(1) will not apply, i.e. where the Consulate will still have immunity. It reads as follows: “the proceedings relate to the employment of the head of a diplomatic mission or any member of the diplomatic, administrative, technical or service staff of the mission or to the employment of the head of a consular post or any member of the consular, labour, trade, administrative, technical or service staff of the post.”" [15]... Section 5(2)(b) speaks of “any member” of such a diplomatic, administrative, technical or service staff. That would include all employees of varying levels of seniority. Issuing of visas is clearly part of the functions of a foreign entity. In other words, [Pitja’s] job is directly related to the sovereign powers of a foreign State. As such, the CCMA has no jurisdiction to Arbitrate the matter. "[15] There is no merit to this argument. The award by Commissioner Malubane was an advisory award, advising the Consulate to either reinstate Pitja or pay him three months’ salary. If the advisory award was, by itself, not binding on the Consulate, I cannot find a basis why it would be binding on Commissioner Byrne. [16] In this matter, the Consulate has elected not to comply with the advisory award by Commissioner Malubane. That is, in my view, a legally permissible choice if regard is had to the provisions of section 150C(5)(a) of the Labour Relations Act[3] (LRA)." [17] It is a well-established principle of public international law that the courts (including quasi-judicial forums, in my view) of a country will not by their process make a foreign state a party to legal proceedings against its will. I refer in this regard to the judgment by Nicholas J in Liebowitz v Schwartz.[4] [18] It is apposite to reflect briefly on the rationale behind this principle. First and foremost, this principle is grounded on the maxim: ‘par in parem imperium non habet’, which means that equals have no jurisdiction over one another. This maxim is interlinked with the principle of sovereign equality, which affirms that all states are equal members of the international community. "[19] In Democratic Alliance v Minister of International Relations and Co-operation and Others; Engels and Another v Minister of International Relations and Co-operation and Another,[2018 (6) SA 109 (GP)] Vally J deals with the matter thus: [17] The immunity is not for the personal benefit of the official but there to ensure that states function effectively and that there is a well-ordered workable system of international relations where peace and harmony can exist between states. It is a consequence of a simple idea, now recognised as a principle, and captured in the phrase, “par in parem imperium non habet”. However, it is a derogation from another fundamental principle that each state shall enjoy supreme sovereignty over the operation of its laws. [18] In terms of the customary international law officials of a state enjoy immunity from civil and criminal jurisdiction. The immunity takes two forms: immunity based on the functions they perform (functional immunity or immunity rationae materiae); and, immunity granted to certain officials because of the office they hold (personal immunity or immunity rationae personae). The former concerns immunity for acts performed in an official capacity. The immunity is functional to the work of the official of the state; it attaches to the function and not the individual. The immunity rationae personae on the other hand, is given to individuals by virtue of the position they hold, such as heads of state, heads of government or ministers of foreign affairs, while in office. It is these three officials only that enjoy this immunity. This immunity attaches to the individual. The immunity rationae personae covers acts committed prior to and while the official holds office. It is temporary: it takes effect as soon as the official takes office and ceases as soon as s/he leaves office. (footnotes omitted)" "[20] In Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others,[2016 (3) SA 317 (SCA)] the Supreme Court of Appeal (SCA) explained the concept of immunity in customary international law as follows: [66] Professor Crawford describes the basic principles of the international law of immunity in the following terms: ‘State immunity is a rule of international law that facilitates the performance of public functions of the state and its representatives by preventing them from being sued or prosecuted in foreign Courts. Essentially, it precludes the Courts of the forum state from exercising adjudicative and enforcement jurisdiction in certain classes of case in which a foreign state is a party. It is a procedural bar (not a substantive defence) based on the status and functions of the state or official in question. Previously described as a privilege conferred at the behest of the executive, the grant of immunity is now understood as an obligation under customary international law … [T]he existence of this obligation is supported by ample authority … Immunity exists as a rule of international law, but its application depends substantially on the law and procedural rules of the forum.’ This immunity is available when it is sought to implead a foreign state, whether directly or indirectly, before domestic Courts, and also when action is taken against state officials acting in their capacity as such. They enjoy the same immunity as the state they represent. This is known as immunity ratione materiae (immunity attaching to official acts). In addition, heads of state and certain other high officials of state enjoy immunity ratione personae (immunity by virtue of status or an office held at any particular time). This form of immunity terminates when the individual demits, or is removed from, office. The country concerned may waive either form of immunity. (footnotes omitted)" [22] It is apparent that Pitja was, with this matter, courageously pursuing what he regards as a test case so as to break the established legal barrier in holding another sovereign state accountable in the local courts of a country. The principle upholding this barrier is, in my considered view, sacrosanct. Embassies and Consulates enjoy general immunity from the South African courts JS 528/2022 Pitja v United States of America (JS 528/2022) [2023] ZALCJHB 152 (23 May 2023) "the applicant was a member of the ‘consular, labour, trade, administrative, technical or service staff of post’ for the purposes of section 5(2)(b). The exception established by section 5(1) is therefore not applicable, and immunity is retained under section 2. It follows that this court has no jurisdiction to entertain the referral made by the applicant on account of that immunity. the applicant was a member of the ‘consular, labour, trade, administrative, technical or service staff of post’ for the purposes of section 5(2)(b). The exception established by section 5(1) is therefore not applicable, and immunity is retained under section 2. It follows that this court has no jurisdiction to entertain the referral made by the applicant on account of that immunity. " [9] This court has reached similar conclusions in Wilma Jonker v Embassy of the United States of America [1999] 1 BLLR 31 (LC) and the judgment by Voyi AJ to which I have referred, Kgalabi Pitja v Commission for Conciliation, Mediation and Arbitration and others (JR 186/21). None of the authorities referred to by the applicant cast doubt on these decisions. In short, the respondent’s point in limine stands to be upheld and the referral dismissed. In these circumstances, it is not necessary for me to consider the respondent’s submissions based on customary international law. Labour Court for order to hand back personal data on computer J947/2023 Seale and Another v Marce Fire Fighting Technology (J947/2023) [2023] ZALCJHB 220 (13 July 2023) [7] The respondent's argument that the applicants should have approached the High Court is consistent with the applicants' pleaded case. The applicants seek an order that the respondent return their personal information . In terms of their pleaded case, the Labour Court derives the necessary jurisdiction from section 157 (2) of the LRA which grants it concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental rights entrenched in chapter 2 of the Constitution. Sedion-23 (1) of the Constitutional of the Republic of South Africa, 1996 guarantees everyone the right to fair labour practices. This right forms part of the rights entrenched in chapter 2 of the Constitution. Notwithstanding reference to section 157 (1) of the LRA, the pleaded case before me is based on section 157 (2) of the LRA. The principle is expressed in Chirwa (supra)[5]. The applicants have therefore established that this court has the necessary jurisdiction to hear this application. [9] It is common cause that the respondent expressed its willingness to hand over the information the applicants are entitle to including their personal information. There are only a few documents whose ownership is in dispute. The applicants conceded that the ownership of those documents has to be determined in terms of the Companies Act[6]. An employee retains ownership of his or her personal information and the employer has no right to confiscate or deny an employee the right to that information. Employers have a duty to regulate the use of tools of trade by employees in clear terms which should be communicated to employees. Employees need to know beforehand the nature of information that can be stored in employers' devices that they have the right to use and the ownership of the information after it has been stored. Territorial JA45/14 Monare v South African Tourism and Others (JA45/14) [2015] ZALAC 47; [2016] 2 BLLR 115 (LAC); (2016) 37 ILJ 394 (LAC) (11 November 2015) Territorial jurisdiction of the CCMA – employee employed overseas dismissed for misconduct – employee referring unfair dismissal to CCMA – commissioner finding employee dismissal substantively unfair – Labour Court mero motu raising lack of jurisdiction of the CCMA and reviewing and setting aside award on that ground. Appeal – principle enunciated in Astral and Genrec Mei to the effect that the undertaking where employee employed extraterritorially has to be separated and divorced from the other company in the Republic restated. – Employer a creature of statute mandated to perform functions within or outside the boundaries of the Republic – Overseas office not separated and divorced from South African operation. LRA applicable – CCMA having jurisdiction – Labour Court judgment set aside. case is moot / LRA or RGA jurisdiction DA31/22 CCI South Africa (Pty) Ltd v African National Congress Youth League and Others (DA31/22) [2024] ZALAC 7; [2024] 5 BLLR 435 (LAC); (2024) 45 ILJ 969 (LAC) (6 March 2024) "[17] It is settled law that Courts do not provide advisory opinions and that matters that are moot will ordinarily not be considered. In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others,[[1999] ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39.] the Constitutional Court explained mootness as follows: ‘A case is moot and therefore not justiciable, if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law.’[8]" "[18] There is, however, an exception to this rule. Where it would be in the interests of justice for the matter to be heard, a Court may exercise its discretion to hear a matter that is moot. The Constitutional Court explained the exception in Normandien Farms (Pty) Limited v South African Agency for Promotion of Petroleum Exportation and Exploitation (SOC) Limited and Others[9] (Normandien): ‘[46] It is clear from the factual circumstances that this matter is moot. However, this is not the end of the inquiry. The central question for consideration is: whether it is in the interests of justice to grant leave to appeal, notwithstanding the mootness. A consideration of this Court’s approach to mootness is necessary at this juncture… [47] Mootness is when a matter “no longer presents an existing or live controversy”. The doctrine is based on the notion that judicial resources ought to be utilised efficiently and should not be dedicated to advisory opinions or abstract propositions of law, and that courts should avoid deciding matters that are “abstract, academic or hypothetical”. [48] This Court has held that it is axiomatic that “mootness is not an absolute bar to the justiciability of an issue [and that this] Court may entertain an appeal, even if moot, where the interests of justice so require”. This Court “has discretionary power to entertain even admittedly moot issues”. [49] Where there are two conflicting judgments by different Courts, especially where an appeal court’s outcome has binding implications for future matters, it weighs in favour of entertaining a moot matter. [50] Moreover, this Court has proffered further factors that ought to be considered when determining whether it is in the interests of justice to hear a moot matter. These include: (a) whether any order which it may make will have some practical effect either on the parties or on others; (b) the nature and extent of the practical effect that any possible order might have; (c) the importance of the issue; (d) the complexity of the issue; (e) the fullness or otherwise of the arguments advanced; and (f) resolving the disputes between different courts.’[10] [Footnotes omitted]" [25] Therefore, it is settled that if protest action falls within the ambit of the LRA, the Labour Courts have jurisdiction, while if it does not, the RGA applies and the High Courts would have jurisdiction. The Appellant would have been within its rights to seek an interdict whether the protest action was in contravention of the LRA or the RGA. What is important is the forum in which they sought that interdict. The essence of the cases considered in the preceding paragraphs is clear – if the dispute does not revolve around an employer, employees and their union, the LRA does not apply. ODIMWA / MPRDA / MHSA / OHSA J400/23 UASA Union v Anglo American Platinum Limited and Others (J400/23) [2024] ZALCJHB 199; (2024) 45 ILJ 1851 (LC) (10 May 2024) "[92] Section 82 of MHSA provides that the Labour Court has exclusive jurisdiction to determine any dispute about the interpretation or application of any provision of this Act except where this Act provides otherwise. It was also confirmed in the Constitutional Court judgment of Baloyi v Public Protector & others[37] that the exclusive jurisdiction of the Labour Court is engaged where relevant legislation mandates it. [93] On the other hand, OHSA does not have a similar empowering provision, and so acting ultra vires is an option. It is therefore conclusive that with this section in casu as well as sections 157 and 158 of the LRA, the Labour Court is clothed with jurisdiction to entertain the declaration in respect of MHSA and its regulations. However, it is imperative to state that the necessary jurisdictional requirements are lacking in respect of OHSA, as not conferred by the statute or Act of Parliament. " "[63] That the application satisfied the accepted normal requirements of declaration in respect to MHSA, and dismally fails on OHSA for lack of jurisdiction. [64] That indeed MHSA provisions are more beneficial for the health and safety scope of the First and Second Respondent’s Retained Operations. However, the tools of interpretation of statutes including the purpose, explanatory notes and application of the Act, are clearly not supportive of the Applicant’s version. The conclusion, therefore I reach is that MHSA cannot be applicable to Retained Operations of the First and or Respondents, respectively." territorial jurisdiction: regard to the location of the undertaking to which the appellant was engaged to provide services. CA02/2023 Sorrell v Petroplan Sub-Saharan Africa (Pty) Ltd (CA02/2023) [2024] ZALAC 48 (4 October 2024) "Independent Contractor Agreement (ICA) was concluded in South Africa between the appellant and the respondent, a company incorporated in South Africa. In terms of the agreement, the appellant was to perform the role of Logistics Superintendent for the respondent’s clients, Sasol Petroleum Temane Limitada, Sasol Petroleum Mozambique Limitada and Sasol United Kingdom, at a gas exploration project in Mozambique. " [7] Annexure 1 to the ICA provided that the place where services were to be performed was Mozambique. T [9]...The Labour Court, with reference to Commercial Workers Union of SA v Tao Ying Metal Industries & others[2], dealt with the jurisdictional challenge finding that the principle of legality obligates a court to deal with a point of law, even if the parties were unaware of it, where a failure to do so could lead to a decision based on the incorrect application of the law. That finding is not the subject of appeal. 14] In Astral[13], this Court followed the decision of Genrec Mei in which, although the employer’s principal place of business was in Durban, it recruited the employees in Durban to perform work on an oil rig outside of South African territorial waters. The Court found that (a) where an undertaking is carried on at any given time is a question of fact; (b) although Genrec carried on an undertaking in Durban, it was also engaged in another undertaking conducted on the rig; (c) the vast majority of Genrec's employees working on the rig were not part of its regular workforce; (d) the respondent employees were recruited specially for employment to work on the rig; (e) the respondent employees' contracts of employment were of limited duration and were to come to an end on the completion of a particular contract and, thereafter, they would no longer be employees of Genrec. The Court found that the employees were not employed in Durban and that the 1956 Labour Relations Act did not, prior to its amendment in 1991, apply to the undertaking operated by the employer on the oil rig above the continental shelf outside South African territorial waters. [15] In Astral[14], this Court relied on the same criteria to find that while the employer operated a business from South Africa, its subsidiary business in Malawi was an incorporated concern with a separate personality, and that the employee was resident in South Africa but had entered into a contract of employment requiring them to work outside South Africa. The LRA was therefore found not to apply to the appellant's operation in Malawi. In Robineau, this Court followed these decisions and in Antonio v Commission for Conciliation, Mediation and Arbitration and Others[15], the Labour Court found that the CCMA lacked jurisdiction in that the employee was employed in Angola for a legal entity separate and divorced from the third respondent and when an express term of the employee's employment contract was that Angolan law would apply. unfair labour practice dispute: CCMA lacks jurisdiction because the dispute arose and was referred after the applicant had ceased to be an employee of the first respondent. JR1515/22 Mkhize v Rand Water Soc Ltd and Others (JR1515/22) [2024] ZALCJHB 284 (2 August 2024) "[10] In opposition, the first respondent contends that the applicant did not qualify for the 2020/2021 STI bonus, as paragraph 4.3 of the 2019 STI policy provides that: “4.3 Qualifying date Employees must be in service as at 30 June to qualify for the Incentive payment. Employees who exit the organization before 30 June are not eligible for an incentive bonus...”" [19]...The applicant argued, in reliance on the Constitutional Court judgment in Pretorius and Another v Transport Pension Fund and Another[2], that everyone has the right to protection from unfair labour practices, and that unfair labour practices under the LRA may extend beyond the termination of employment. "27] The LAC in Apollo Tyres referred to Velinov v University of Kwazulu- Natal and Others[7] as the basis for rejecting the argument that the CCMA did not have jurisdiction because the employee had resigned and that there was therefore no employment relationship. The court in Velinov held that: “I do not accept that an employee whose employment has been terminated either by resignation or otherwise, but who continues to work out his or her notice period, does not enjoy the protection of the provisions of the LRA and particularly the unfair labour practice provisions contained in Chapter VIII. This would not only be contrary to section 186(2) which, in defining an “unfair labour practice”, does not distinguish between different categories of employees but it is also contrary to the definition of “employee” in section 213. It is also contrary to the principle that despite termination of employment, employees have rights in the wider “ongoing employment relationship” (see National Automobile & Allied Workers’ Union v Borg-Warner SA (Pty) Ltd 1994(3) SA 15 (A) at 25 E – I)”[8]" [28] The facts in Apollo Tyres and in Velinov can be distinguished from the facts of this matter. In Velinov the employee had resigned, but was working her notice period, and in Apollo Tyres the employee resigned before referring her unfair labour practice dispute, but after all the facts giving rise to her dispute had taken place. In other words, her cause of action was already perfected by the time Hoosen resigned. In my view, the decisions in Apollo Tyres and Velinov are not authority for a proposition that the CCMA has jurisdiction to arbitrate an unfair labour practice dispute that only arises after termination of the employment relationship. "[29] In Pretorius supra the Constitutional Court had to decide an exception. For that purpose the court had to accept that all the allegations in the particulars of claim were true. The employer had raised a number of exceptions, including against an unfair labour practice claim under section 23(1) of the Constitution of the Republic of South Africa, 1996, on the basis that the particulars of claim did not allege an employment relationship between the parties. The court considered that the employer had made a promise to the ex-employees in 1989 when they were still employees and held that: “Labour law jurisprudence under the Labour Relations Act (LRA) recognises that unfair labour practices under the Act may extend beyond the termination of employment.” and at [48], “In short, the LRA tabulated the fair labour practice rights of only those enjoying the benefit of formal employment – but not otherwise. Though the facts of this case do not involve these considerations, they provide a compelling basis not to restrict the protection of section 23 to only those who have contracts of employment.”[9]" [30]...In my understanding of the Pretorius judgment, the Constitutional Court did not hold that the CCMA automatically has jurisdiction to arbitrate an alleged unfair labour practice dispute under section 186(2)(a) of the LRA referred by an ex-employee if the unfairness complained of occurred after termination of the employment relationship, and specifically not if the ex-employee relies on his former employment contract. 31]...Magoshi v Gauteng Department of Education[(JR864/15) [2018] ZALCJHB 311; (2019) 40 ILJ 168 (LC) (2 October 2018)...“[12] To the extent that the decisions in Velinov, Malope and Pretorius confirm that on the less restrictive interpretation of the definition of ‘employees’, and the extension of the protections under section 23 of the Constitution, ex-employees are not barred from referring disputes, it is my view that this cannot be read to be open sesame for ex-employees to willy-nilly refer disputes. Implicit in these decisions and as can also be gleaned from the facts of those cases is that there is a qualification. Thus, the common trend in those cases was that the alleged wrong or unfairness complained of, took place during the course of employment and before termination of that employment.”[11] (My emphasis) [33] I am in respectful agreement with the reasoning of Tlhotlhalemaje J in Magoshi. To my mind, the distinction lies between disputes on the one hand that wholly arose during the employment relationship, but which were only referred to the CCMA or a bargaining council after termination of that employment relationship, in which cases the CCMA would have jurisdiction; and disputes that only arose after termination of the formal employment relationship, i.e. the facts that gave rise to the alleged dispute did not exist at the time of termination, in which case the CCMA would not have jurisdiction under section 186(2)(a) of the LRA. It therefore seems to me that the crisp issue for this court to decide is whether the alleged dispute arose before or after the termination of the employment relationship. [35]...The alleged dispute therefore arose after termination of the employment relationship. [38]...Also, in my view the fact that the legislature in section 186(2)(c) of the LRA expressly defined an unfair labour practice with reference to a former employee, while no reference is made to former employees in section 186(2)(a), supports the conclusion that the legislature intended the rights under section 186(2)(a) to be limited to disputes arising during the existence of the employment relationship. 39] If, as in this case, the alleged dispute is on a former employee’s own version about the provisions of benefits, i.e. a dispute contemplated in section 186(2)(a) of the LRA, and the facts that gave rise to the dispute on the former employee’s own version arose after termination of the employment relationship, the dispute falls outside the scope and ambit of the definition of an unfair labour practice in section 186(2)(a) of the LRA. It follows that the CCMA does not have jurisdiction to arbitrate such an alleged dispute. jurisdictional questions at conciliation JR1877/2022 DDP Vervoer v Commission for Conciliation, Mediation and Arbitration and Others (JR1877/2022) [2024] ZALCJHB 438 (13 November 2024) "[15] In Bombardier Transportation (Pty) Ltd v Mtiya NO & others[(2010) 31 ILJ 2065 (LC) at para 13] Van Niekerk J (as he was then) stated as follows: “13] The first step in this approach is to recognize that many 'jurisdictional issues' raised by parties in conciliation proceedings are not jurisdictional questions in the true sense. …. The only true jurisdictional questions that are likely to arise at the conciliation phase are whether the referring party referred the dispute within the time-limit prescribed by s191(1)(b), whether the parties fall within the registered scope of a bargaining council that has jurisdiction over the parties to the dispute to the exclusion of the CCMA, and perhaps whether the dispute concerns an employment related matter at all. The distinction to be drawn is one between facts that the legislature has decided must necessarily exist for a tribunal to have the power to act (and without which the tribunal has no such power) and facts that the legislature has decided must be shown to exist by a party to proceedings before the tribunal, the existence of which may be determined by the tribunal in the course of exercising its statutory powers. The power given to the CCMA to determine the fairness of a dismissal includes the power to determine whether or not an applicant was an employee, and whether she was dismissed. These questions ordinarily fall to be determined in the course of the CCMA's adjudication functions. It follows that a conciliating commissioner is under no obligation to determine them at the conciliation phase.” (Own emphasis)" [16] To summarise, the existence of a dismissal (in an unfair dismissal dispute) is a jurisdictional prerequisite. An administrative tribunal, such as the CCMA, cannot finally determine its own jurisdiction. Its findings on jurisdictional facts are provisional, and are made solely for the sake of convenience. The test on review, in relation to jurisdictional findings, is one of correctness, not reasonableness. [18] The applicant has not provided any basis, compelling or otherwise, to overturn the finding of the commissioner that the applicant told the employees to “go home and starve” while it would source cheap labour. The applicant does not state that this evidence was not presented by the employees to the commissioner. On review, findings of this nature cannot be overturned simply because a party wishes to do so. Something more is required. The finding was based on oral testimony, presented under oath, directly to the commissioner. In my view, no proper basis has been laid to set aside the finding that the respondents were dismissed. true nature of the dispute CA8/23 SA Steelworks division of SA Metal Group (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others (CA8/23) [2024] ZALAC 65 (6 December 2024) [36] The objective facts show quite clearly that the arbitrator was mindful of her duty to determine if she had jurisdiction to entertain the matter based on the true nature of the dispute between the parties. That is why the arbitrator repeatedly pointed out what her understanding of the true nature of the dispute was and on each occasion, AMCU did not object to her characterisation of the dispute. On the basis of the material before her and the evidence given during the arbitration proceedings, it is clear that the arbitrator had jurisdiction to determine the dispute that had been referred for arbitration which was that of misconduct characterised by repeated refusals to obey lawful instructions. This conduct constituted gross insubordination which justified the dismissals. It is unfortunate that it was AMCU, which should know better, that encouraged if not instigated this gross disobedience for reasons that are shrouded in obscurity. Jurisdiction – Bargaining council – Labour Court finding that bargaining council had no jurisdiction to hear and determine fairness of dismissal – Union’s case was never that dismissed was for participation in unprotected strike – Arbitrator was mindful of her duty to determine if she had jurisdiction – Dispute referred for arbitration was misconduct for repeated refusals to obey lawful instructions – Conduct constituted gross insubordination which justified dismissals – Appeal upheld. Labour court regarding a claim for lawfulness: [25] The first issue to be considered is that of jurisdiction and specifically, whether the Labour Court has jurisdiction to grant an order declaring an employer’s failure to comply with a collective agreement to be unlawful or unfair. JA121/2022 MEC Health Limpopo Head of Department of Health v Makgoba Others (JA121/2022) [2025] ZALAC 33 (4 June 2025) "[28]...The Labour Court has no general jurisdiction to make declarations of unlawfulness, except in so far as the LRA or other enabling statute extends that power. In Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA intervening)[5] the appellant employees contended that their dismissals by the employer were unlawful and invalid because their employer had not complied with time periods established by s 189A of the LRA prior to issuing notices of termination of employment. The majority of the Constitutional Court rejected this contention on the basis that the Labour Court has no jurisdiction to determine the lawfulness of a dismissal. The court observed that there was no provision in the LRA in terms of which an order could be sought declaring a dismissal unlawful or invalid. The court said the following: ‘[106] Section 189A falls within chapter VIII of the LRA. That is the chapter that deals with unfair dismissals. Its heading is: ‘Unfair dismissal and unfair labour practice’. Under the heading appears an indication of which sections fall under the chapter. . .. Conspicuous by its absence here is a para (c) to the effect that every employee has a right not to be dismissed unlawfully. If this right had been provided for in s 185 or anywhere else in the LRA, it would have enabled an employee who showed that she had been dismissed unlawfully to ask for an order declaring her dismissal invalid. Since a finding that a dismissal is unlawful would be foundational to a declaratory order that the dismissal is invalid, the absence of a provision in the LRA for the right not to be dismissed unlawfully is an indication that the LRA does not contemplate an invalid dismissal is a consequence of a dismissal effected in breach of a provision of the LRA…’." [29] Thus, when an applicant alleges that a dismissal is unlawful (as opposed to unfair) the Labour Court has no jurisdiction to make any determination of unlawfulness.[6] The same principle holds good for other forms of employer conduct, including an alleged failure to comply with a collective agreement. The LRA provides mechanisms for the enforcement of collective agreements, but a declaration of unlawfulness by the Labour Court consequent on a failure to implement the agreement is not one of them. The Labour Court accordingly erred when it made a declaration to this effect. " [32] Section 77 (3) confers concurrent jurisdiction on the Labour Court, with the civil courts, to hear and determine any matter concerning a contract of employment. Section 77(3) is one of those provisions referred to in section 157 (1) of the LRA that confers jurisdiction of the Labour Court to adjudicate defined disputes- in this instance, a dispute about a contract of employment. What the section envisages is a claim brought in contract and pleaded as such." Foreign Mission JR1346/22 Naidoo v Khosa NO and Others (JR1346/22) [2025] ZALCJHB 131 (18 March 2025) "[16] Here, it appears to be common cause that the Mission operates on a budget determined by DIRCO, it acts on instructions and directions of the Department, and it acted on the instructions from the Department when it abolished her post. Furthermore, when the applicant was engaged, it appears that she was appointed by the Mission, on delegated authority from DIRCO itself. [17] In my view, as previously explained, there is no indication from the Administrative Code, or elsewhere, that the applicant chose to have her employment contract governed by local law." 21] Whether sovereign immunity arises in this context would largely be dependent on the local legislation, in the form of the Foreign Sovereign Immunities Act of 1976 (FSIA)[17] which establishes criteria as to whether a foreign state (or its political subdivisions, agencies, or instrumentalities) is immune from jurisdiction of the federal or state courts. The FSIA also establishes procedures for service of process, attachment of property and execution of judgment against a foreign state. Accordingly, even if the applicant were permitted to proceed with her dispute in the local courts, and she succeeded, the FSIA would make execution difficult. Labour Court plea was one of res judicata based on an earlier application launched by Mr Bouwer in which he had sought an order declaring his position redundant because of the abolition of his post; a similar contention had been dismissed in African Farms & Townships Ltd v Cape Town Municipality (1963 (2) SA 555 (A)). Held therefore, that the special plea of res judicata succeeded. JS 211/05 Bouwer, D W v The City of Johannesburg & National Fund for Municipal Workers Special plea of res judicata [To be corrected later by Constitutional Court: Sidumo case] It was held that a CCMA Commissioner had no discretion in relation to sanction, but bore only the duty of determining whether the employers sanction was fair (as explained in Nampak Corrugated Wadeville v Khoza ((1999) 20 ILJ 578 (LAC)) and further expounded upon in County Fair Foods (Pty) Ltd v CCMA ((1999) 20 ILJ 1701 (LAC)). SCA 598/05 Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA; Moropa T J N.O. & Sidumo Z Review Private Arbitration The grounds of misconduct is a very narrow one. In the result, the court found, its powers of review are limited to the grounds specified in s 33 of the Arbitration Act, i.e. misconduct by the arbitrator in relation to his duties as arbitrator; the commission of a gross irregularity in the conduct of the arbitration; the arbitrator exceeding his powers; or the award having been improperly obtained. Only the first two grounds were relevant in the current matter. C461/03 NUM v Grogan N.O. & Another Review Condonation; 10-day period for filing notice of opposition to be calculated from date on which employers attorneys informed of case number JS294/05 Windybrow Centre for the Arts v SACCAWU obo Gina & Others Procedure 77(1) of BCEA, not s 77(3) the employee had not pleaded a claim based on contract of employment (under s 77(3) of the BCEA), J104/09 Ephraim v Bull Brand Foods (Pty) Ltd Pleadings Statement of Case No case number , no condonation JS822/08 Phoffu and Others v Flexible Staffing Solutions Pleadings Statement of claim did not contain clear and concise statement of material facts or concise statement of legal issues arising from material facts; the possibility of the parties being able to address the defects in the statement of case at the pre-trial conference JS622/07 Davidson, Margaret & Others v Wingprop (Pty) Ltd Statement of case Exceptions Party not precluded from raising an exception to the other party’s claim or defence after conclusion of a pre-trial minute JR1037/05 The Tourism, Hospitality and Sport Education and Training Authority v TMS-Shezi Industrial Services (Pty) Ltd Procedure Default judgment Entitlement to notice; Labour Court is not entitled to debar a person defending a claim without notice or opportunity to show good cause Rule 6 (7) JA21/07 Eberspcher v National Union of Metal Workers of South Africa o.b.o & Others Judgment Dispute of facts Motion proceedings Bound by it CA02/09 GE Security (Africa) v Airy and Others Pre-trial minute fresh submissions from the bar. Party had to state all its grounds for review in its founding papers. JR 3528/09 Communication Workers Union and Others v SA Post Office Ltd and Others Procedure, fresh submissions from the bar Other caselaw cited: Betlane v Shelly Court CC 2011 (1) SA 388 at para [29] JR 3528/09 Communication Workers Union and Others v SA Post Office Ltd and Others Procedure, fresh submissions from the bar non-compliance with s 74(2), s 77(3) of the BCEA, the contractual claim had not been properly pleaded. JS383&7/2007 Van Metzinger and Another v Conservation Corporation t/a CC Africa Pleadings Procedure, Exception, standard of pleading required of a lay litigant, a balance needed to be struck between access to justice in favour of the lay litigant and fairness to the other party. the claim had to set out the essential nature of the applicants claim and the essential basis for the claim in broad terms. JS128/12 Chauke v Machine Tool Market (Pty) Ltd Pleadings Heads of arguments not evidence JR 1151/2008 Masubelele v Public Health and Social Development Sectoral Bargaining Council and Others Evidence JA 87/11 Sondorp and Another v Ekurhuleni Metropolitan Municipality Procedure, Amendment of papers, Whethernew cause of action included, Amendment to change an alleged unfair dismissal to an alleged automatically unfair dismissal. There would be no prejudice to the municipality if the amendments were allowed. Condonation A full and detailed account of the causes of the delay and the effect thereof had to be furnished by an applicant. The more serious the consequences of non-compliance, the more difficult it would be for the party seeking condonation to have his or her application granted. The court held furthermore that there needed to be a differentiation in approach between condonation applications under labour law on the one hand and under civil law on the other in that it should generally be more difficult to obtain the indulgence of condonation. Requires strict judical scrutiny. (DA 4/09) [2013] ZALAC 18 Shaikh v South African Post Office Ltd and Others (incomplete)

Labour Law cases decided in the South African Courts (Highlights and updated 1997 to 06 2025 [Copyright: Marius Scheepers/15.10.1]) desertion, dismissal (misconduct), incapacity, poor performance Desertion prolonged absence might serve as evidence of desertion Termination of employment only occurred when the employer subsequently accepted the repudiation of the employee JR783/07 Khulani Fidelity Services Group v CCMA & Others unlike ordinary absenteeism, desertion required an element of intention not to return to work JS705/08 SATAWU obo Langa & Others v Zebediela Bricks (Pty) Ltd & Another Termination of contract amounts to breach of the contract of employment, but does not in itself bring the contract of employment to an end. Held: The breach of the contract does, in itself, not bring about a termination of the contract. [32] The termination requires an acceptance of the breach by the employer, which then amounts to a dismissal J774/99 Lebowa Platinum Mines Ltd v CCMA & Others s 17(5)(a)(ii) of the Public Service Act employee, who was prohibited by his/her contract of employment from taking any remunerative employment, took up other remunerative employment he/she had to be deemed to have resigned. Section 17(5) read with s 30(b) meant exactly that. Instead of resignation it used the word discharged. JA 71/10 Solidarity and Another v Dickens NO and Department of Health: Free State whether the employee had furnished sufficient and reasonable justification for her extended absence. JR 2679/10 Thubatse Chrome (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others Disciplinary code, can be dismissed after 5 days, also to be reversed after employee return, e dismissal was not final and did not close the door to the possibility of it being reversed on the employees return and his beingable to rebut the inference of desertion by providing a satisfactory explanation for both hisabsence and his failure to inform his employer. The employee bore the onus of providing asatisfactory justification for his absence, this being a matter within the sole knowledge of theemployee. In the circumstances of the present matter, where the employee had not providedany such justification, the dismissal was justified. JR 182/11 Impact Ltd (Mondi Packaging SA (Pty) Ltd) v National Bargaining Council for the Wood and Paper Sector and Others charges JR603/2015 Glencore Operations South Africa (Pty) Ltd v Malapane and Others (JR603/2015) [2017] ZALCJHB 5 (5 January 2017) Police and Prisons Civil Rights Union v Minister of Correctional Services and Others [1999] 20 ILJ 2416 (LC) at 2425, par [33] the charge sheet should contain factual information as to the nature of an allegation against the employee sufficient for an employee to know the case he is expected to meet. wanted to take leave as his son was due to attend a circumcision school...that he had reported his absence to a fellow employee, and had during his sick leave, went home. He had conceded that his initial request to take leave was declined. During his last shift at work he fell ill...the dismissal of Mr Sonnyboy Manyoni was fair [30] I align myself with the views expressed above and agree that in circumstances where an employer in terms of its own disciplinary code/policy and procedure is permitted to deem an employee to have deserted after a certain period of unexplained absence, there is no requirement for that employer to establish an intention to desert on the part of the employee. Upon the employees return and an appeal process granted in terms of the policy, the onus is on the employee to provide satisfactory justification for the absence. [31] The issue of whether there was an obligation on Glencore to make attempts to contact Manyoni seems to have persuaded the Commissioner in finding that the dismissal was substantively unfair. This was notwithstanding the fact that in terms of clause 4.4.3 of the Policy, the onus was upon Manyoni to justify his prolonged absence. I appreciate that in Grootboom v National Prosecuting Authority and Another[2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) at para 45], the approach, albeit expressed obiter, seems to suggest that there is an obligation on an employer to provide some evidence that an absentee employee was contacted. That approach was long stated in South African Broadcasting Authority v CCMA[SABC v CCMA and Others (2002) 8 BLLR 693 (LAC) at para 13], where it was held that an employer who has the means of communicating with the absent employee must do so. It is my view that even if there is such a requirement or obligation on the employer, it does not absolve that employee from his/her obligations to contact the employer, especially where the companys policy explicitly so requires. Grootboom v National Prosecuting Authority and Another[2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) at para 45 Although one might be tempted to conclude that, by virtue of having undertaken a scholarship to the UK, the applicant would, in all likelihood, have found it impractical to return to resume his employment if he were recalled, I find such a conclusion to be unfounded and speculative in the absence of any evidence that he was called to take up his duties and failed to do so. Moreover, the NPA knew where the applicant was at all relevant times as it was communicating with him via email. It made a conscious decision not to recall but to discharge him. This fact leads me inexorably to conclude that the finding by both the Labour Court and the Labour Appeal Court in this regard is wrong. [17] At para 15, where it was stated that; Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alteram partem rule before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty. South African Broadcasting Authority v CCMA[SABC v CCMA and Others (2002) 8 BLLR 693 (LAC) at para 13 It is not desertion when an employee who is absent from work intends returning to work. Desertion necessarily entails the employees intention no longer to return to work. The employer would have to establish this intention in a fair process.para 15...Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alteram partem rule before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty. [32] Thus, where desertion is regulated by the employers disciplinary code as in this case, or some other statute, the principles set out in Grootboom v National Prosecuting Authority and Another[18] by this Court in my view ought to find application, and the employee must show good cause by providing a reasonable and satisfactory explanation for his or her absence without authority, irrespective of whether the employer is required to attempt communication with that employee during his or her absence or not. The employer in considering whether or not good cause has been shown must in addition, take into account considerations of fairness and justice, and further consider whether or not the unauthorized absence was wilful on the part of the employee. (complete) Dismissal Misconduct not reporting overpayment if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable C429/01 Consol Ltd t/a Consol Glass v Ker NO & Others Misconduct Dishonesty Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently had not tried to conceal facts from the employer, as alleged, and that they had therefore not been dishonest DA4/01 Nedcor Bank Ltd v Frank & Others misconduct* derivative misconduct association with culprits JR2537/03 RSA Geological Services (Division of De Beers Consolidated Mines Ltd) v Grogan N.O. Misconduct Assault CA13/98 County fair foods Incapacity JA 69/98 EC Lenning Ltd Misconduct Fraudulent scheme DA24/98 Reddy Misconduct Fraud DA2/99 Toyota Misconduct Absent vs no leave form JA58/99 Karbochem Sasolburg Misconduct No issue warning Insubordination; employer may require employee to perform whatever work is required of him provided that such work falls within the scope of his ability PA6/99 Waverley Blankets Misconduct Nature of warning PA6/99 Waverley Blankets Misconduct Falsifying overtime claim Trust relationship had not broken down; Long service; Remorse; Appeal dismissed JA 68/99 De Beers Consolidated V CCMA Misconduct Falsifying overtime claim Trust relationship had not broken down (Anglo American farms t/a Boschendal Restaurants vs Komjwayo (1992) 13 ILJ 573 (LAC)) JA 68/99 De Beers Consolidated V CCMA Misconduct desertion Consistency CA9/99 Cape Town City Council Masitho Misconduct Theft of 16 meatballs Theft or attempted theft equally serious; dismissal due to dishonesty JA34/00 Rustenburg Platinum Mines v NUM Misconduct Stabbing person outside place of employment; effect of the misconduct on the employment relationship J5079/00 Foschini Group v CCMA Misconduct Protected strike Blocking employer's premises; serious misconduct (Imperial Car rental v TGWU LAC NH11/2/22/436); Fair J2211/99 PPWAWU v Metrofile Dismissal of Chief Executive Officer the employer is entitled to set its own performance standards for a senior employee and to assess whether those standards have been met, and that a court will not intervene unless the standards or the assessment are grossly unreasonable JA80/99 Brereton v Bateman Industrial Corporation Ltd & Others Racial remark calling of, or, the reference to, an African person in South Africa as a Kaffir by a person who is not an African is part of the racial abuse PA1/01 Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & Others Misconduct Currying and firing firearm Sanction: Held further that the Commissioner had committed a reviewable irregularity in interfering with the sanction imposed by the employer. Held: It is settled law that generally an employer’s sanction should not be interfered with except only in circumstances where the sanction is so excessive as to shock ones sense of fairness or in circumstances where sanction (sic) is totally unreasonable and unfair JR882/01 Harmony Gold Mining Co Ltd (Evander Operations) v CCMA Misconduct Sanction other case law sited: De Beers Consolidated Mines Ltd v CCMA & others (2000) 21 ILJ 1051 (LAC) JR882/01 Harmony Gold Mining Co Ltd (Evander Operations) v CCMA Misconduct Sanction other case law sited: County Fair Foods (Pty) Ltd v CCMA & others (1999) 20 ILJ 1701 (LAC) JR882/01 Harmony Gold Mining Co Ltd (Evander Operations) v CCMA attempted to remove company goods (a portion of a roll of toilet paper) charged of misappropriation of property should have been charged with theft, if theft was to be relied on by the P758/00 NUMSA obo Ngele v Delta Motor Corporation & Others Misconduct fraud; submitting a claim for overtime which he had not worked Fraud is a dismissible offence and dismissal is the appropriate sanction in keeping with the trite principles of Labour Law JR288/01 SA Post Office Ltd v Mooi NO & Others alcohol reading twice that permitted by the employer eight hours after he had commenced his shift and that this in itself was a dismissible offence J4616/99 St Helena Gold Mines Ltd v CCMA & Others assault Disciplinary Procedure final written warning; Two days later senior management altered the sanction to one of dismissal; employers disciplinary code made no provision for intervention or the overruling of such determination and that this was the first time it had intervened in such a manner CA12/01 County Fair Foods (Pty) Ltd v CCMA & Others Misconduct Procedure double jeopardy: delayed for three months before instituting a disciplinary hearing; already acquitted the employee of the offence at an earlier hearing; relied on a balance of probabilities when finding the employee guilty of the offence JR716/01 Duiker Mining Ltd (Tavistock Colliery) v CCMA & Others Misconduct dishonesty and misrepresentation: qualifications not consistently applied discipline in that other offenders had merely been instructed to remove their bars without being charged with misconduct, let alone dismissed. D1152/01 McCord Hospital v Sithole & Another Incapacity vs Misconduct was not that the [employee] did not perform in the context of her appointment neglected to do so or did not do so to the best of her ability. Those would have been disciplinary issues, inviting a different form of reaction by the employer. The issue was one of incapacity, and inability on the part of the [employee] to achieve the reasonable standards of performance set for her by the [employer] notwithstanding what presents as a generous opportunity over an extended period to do so. That she could not achieve those standards in the end result became justifiably an untenable situation as far as the [employer] was concerned (at [4] - [23], referring inter alia to Sun Couriers (Pty) Ltd v CCMA & others (2002) 23 ILJ 189 (LC), C471/01 Danzas AEI (SA) (Pty) Ltd v Wanza NO & Others Misconduct disciplined for taking a quarter loaf of bread when he was not allegedly entitled to the employer had not discharged its onus to show that the dismissal was fair because it had not shown that the employee was not authorised to take the bread could not be faulted D1366/02 and D1367/02 Cambridge Meat v Mhlongo & Others Insubordination Obedience and loyalty on the part of an employee constitute the core and nucleus of a successful and sustainable working relationship between employer and employee. Flagrant defiance by an employee of a reasonable and lawful instruction given by a competent authority of the employer, within the ambit and scope of the employees employment, is therefore both abhorrible (sic) and untenable. that no evidence had been led before the Commissioner to show that the employment relationship had irretrievably broken down. Held that the sanction of dismissal imposed by the Commissioner was not rationally justifiable J3721/00 NUM & Another v CCMA & Others Code the fact that a penalty was competent does not mean that the suggested penalty is mandatory and that the code should (only) serve as a guideline J3721/00 NUM & Another v CCMA & Others Misconduct absenteeism parity of treatment C1055/01 SRV Mill Services (Pty) Ltd v CCMA & Others parity principle that inconsistent application of discipline may lead to perceptions of unfair treatment and that an employer may therefore be required to justify differential treatment of employees in order to avoid a finding that there was in fact unfair treatment C1055/01 SRV Mill Services (Pty) Ltd v CCMA & Others Misconduct Strike Held that a consideration of conflicting evidence revealed no factual basis for such differentiation and concluded that most of the dismissals were unfair, as indeed being selective, although four individual dismissals were upheld on substantive grounds. JA37/01 CEPPWAWU; B Lawson and Others v Metrofile (Pty) Ltd Misconduct Theft of Rubber tape Commissioner erred in seeking to correct the employers sanction and failed to give proper consideration to the employers zero-tolerance policy. Held further that shifts in policy affect the requirement of consistency and render it a less than hard and fast rule. With regard to the issue of a breakdown in the trust relationship reference was made to the viewpoint of Grogan in Dismissal (Juta, CT 2002) on page 99 and the judgment in De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC) Dismissal fair C819/02 Consani Engineering (Pty) Ltd v CCMA; Rabker-Naicker H NO; National Union of Metalworkers of SA & Shoko, J Misconduct with rudeness to a client, poor customer service and damaging the image of the company Unfair C682/03 The Magic Company v CCMA, Mazwi V & Phete E Misconduct Gross negligence, unauthorised use of company funds Ms Molope admitted that she held the responsibilities of an Area Manager but not the authority to act as such; noted that this contradiction was never properly explained. substantively fair JR1950/02 Molope, Ms Phoebe v Commissioner BH Mbha; CCMA & Morkels Stores Misconduct Irresponsible use of company credit card (not fraud) Ms Marks reported herself to Ms Singh in the financial department saying that she had used the company card for personal expenses and wanted to know how to effect repayment. Thereafter she continued to use the card although not often, the figure of the usage was agreed to have been R1000, although other figures were mentioned from time to time. Ms Marks argued that there was no written policy dealing with the use of company credit cards Unfair JR152/04 Tibbett & Britten (SA) (Pty) Ltd v Marks, Marilyn; National Bargaining Council for the Road Freight Industry & Tsatsimpe, Mapalo N.O. Misconduct contravention of LOA rules had made a false declaration JA 45/03 ABSA Brokers (Pty) Ltd v Moshoana, GN N.O.; CCMA; Van Staden, J P Misconduct absenteeism employee had communicated the arrest; dismissed the employee in absentia despite knowing that he was in prison; that there had been no indication that he had been wilfully absent; there had been a supervening impossibility for him to tender his services JR 845/01 Trident Steel (Pty) Ltd v CCMA; Commissioner F Mooi; NUMSA & Vundla J Existence nobody had informed him of his dismissal and that he had relied solely on his own perceptions therefore lacked jurisdiction and acted ultra vires and therefore the award fell to be set aside. C218/03 American Leisure Corporation, Durbanville t/a Planet Fitness v Van Wyk, J; Connan, W N.O. & CCMA Misconduct; omitted from his CV that he had previously worked for KSI; it was rightly considered risky for the company to keep an employee in a senior position if he were no longer trusted. JR2116/03 Oracle Corporation SA (Pty) Ltd v CCMA; Nowosenetz, L N.O. & Clark, B Misconduct sentenced to various terms of imprisonment; Charged he was not gainfully employed in s 17(5)(a)(i); and that dismissal by operation of law was not dismissal in accordance with s 186 of the LRA; dismissal in accordance with s 17(2)(c) was not relevant because the dismissal was substantively by operation of law. JR563/03 Seema, L E v General Public Services Sectoral Bargaining Council; Commissioner M Mashego & Department of Justice Misconduct sending an offensive e-mail ; it had been sent to a computer which was owned by ING Monitoring Prohibition Act (MP Act) ; and it had not been unlawful to read the e-mail JR613/02 Van Wyk, S v Independent Newspapers Gauteng (Pty) Ltd; CCMA & Boyce, T N.O. Absence from work The employees were not dismissed but discharged by operation of law. The arbitrator and the Council had no jurisdiction to consider the matter. D547/03 MEC for Education & Culture v Mabika N B; Dubazana, D N; NATU; Balkaran, S T & Education Labour Relations Council Misconduct Receiving a tip Not an actionable offence. JR1173/03 Swiss South Africa (Pty) Ltd v Louw, K N.O.; CCMA & Narayen, G Misconduct gaining access to managements drawers without authorisation it was noted that one witness testified before the Commissioner that the employee had forced open the drawer and removed a confidential document; the employee had done this openly in front of the witness; have been procedurally and substantively unfair delay in instituting disciplinary proceedings had prejudiced the employee and no proper witness statements had been taken. JR686/03 Riekert, F W v CCMA; Raffee, M S N.O. & Emerald Safari Resort & Casino (Pty) Ltd Misconduct behaving aggressively towards a customer and using abusive language, thus damaging customer relations. employer was entitled to adopt the attitude that the risk of employing a senior employee who engaged in such behaviour and showed no remorse was unacceptably great DA1/04 The Foschini Group (Pty) Ltd v Fynn, M; Pather, S & CCMA Misconduct Remorse De Beers Consolidated Mines Ltd v CCMA & Others ((2000) 21 ILJ 1051 (LAC) DA1/04 The Foschini Group (Pty) Ltd v Fynn, M; Pather, S & CCMA Misconduct Protected strike while picketing at the Bloemfontein offices he incited others to picket, he threatened to hold the management of the branch hostage, and he caused damage to company property Commissioner had committed a gross irregularity when he completely ignored evidence of the nature of the strike action. They averred that there was clear and undisputed evidence that the strike, despite being protected, was often violent and destructive; he had made no direct threats at all JR1275/01 Fidelity Springbok Security Services (Pty) Ltd v The CCMA; Cronje, NO & Telford, W Procedure Double jeopardy Branford v Metrorail Services (Durban) and Others [2004] 3 BLLR 199(LAC) the arbitrators award was set aside as the employee was punished twice for one offence. In their decision the LAC also relied on the finding in BMW (SA)(Pty) Ltd v van der Walt (2000)21 ILJ 113(LAC) which held that a second disciplinary enquiry may be opened against an employee if it was in all circumstances fair to do so. C198/04 SATAWU obo Finca, X v Old Mutual Life Assurance Co (SA) Limited & Burger, J Misconduct gross misconduct; removed bones from chuck steak was an established labour law principle that the value of unauthorised stock appropriation was irrelevant and that the correct sanction was dismissal JR1046/02 Shoprite Checkers (Pty) Ltd v CCMA; Commissioner Hlatshwayo, MD & SACCAWU obo Maseko, D Misconduct Alcohol breathalyser showed a red indicator and the employee was told to leave the company premises; The arbitrator observed that the employer had been inconsistent in the application of the rule against the use of alcohol at the workplace and found that because of the inconsistency the dismissal of the employee had been unfair P539/02 United National Breweries (SA) v CCMA; Bono L N.O. & FAWU obo Mlonyeni Inconsistency of sanction ; the employer had failed to discharge the onus of justifying the differentiation in treatment guidelines for employers on how to deal with matters of inconsistency were given in Cape Town City Council v Masitho & Others ((2000) 21 ILJ 1957 (LAC) JR47/05 Rustenburg Platinum Mines Ltd (Bafokeng Rasimone Platinum Mine) v CCMA; Matlala, ML N.O.; Solidarity & Le Roux, R Misconduct employees clocked in by their colleague had not yet arrived at work although the rest were on the premises. The employees were charged with fraud. finding that the employees must have benefited in order for their actions to constitute fraud was an error of law JR 911/05 Kloof Gold Mine: A division of Goldfields Mining SA (Pty) Ltd v CCMA; Cachalia, A N.O.; United Association of SA & Others Consistency consistency was an element of disciplinary fairness to be determined in each case and it should not be rigidly applied (see SACCAWU & Others v Irvine & Johnson [1999] 20 ILJ 2302 (LAC) JR 953/04 Minister of Correctional Services v Mtembu, J B; The General Public Service Sectoral Bargaining Council & Groves, W Misconduct Assault the sanction of dismissal was not appropriate as Mr Tyumse had probably been provoked or had acted in self-defence. In her finding she also took into account Mr Tyumses clean service record of more than 20 years as a strong mitigatory factor JR 881/04 Anglo Operations Ltd (Bank Colliery) v Tokiso Dispute Resolution (Pty) Ltd; Savage, K N.O.; Tyumse, S & NUM Misconduct dishonesty, attempted blackmail or extortion, and conduct destroying the employment relationship; attempted extortion of R5 million; the arbitrator also failed to consider whether the company was entitled to charge Mr Breugem with misconduct a second time, despite the charges being different, after the ruling of the first hearing; company to pay Mr Breugem compensation in an amount equal to nine months remuneration. C 608/05 Breugem, P v De Kock, C N.O.; CCMA & Weltevrede Kwekery Fixed term contract Amount of compensation in terms of s 194 cannot extend beyond the termination date of the contract C934/01 Nkopane & Others v Independent Electoral Commission Consistency It therefore does not necessarily follow that the outcome of a disciplinary hearing of the employees charged with the same offence will automatically be the same. JR315/06 Rustenburg Platinum Mines v CCMA & Others Retrench no consultation with union outside bargaining unit Lifo not followed D987/04 Perumal & Another v Tiger Brands Rules deviating from own code and dismissing employee while code recommended final warning JR2571/04 Wozney v Myhill & Others Incapacity (health reasons) enquire into the employees ability to perform the work; the extent of the employees inability; the extent to which the employees work circumstances can be adapted to accommodate the disability and alternatives short of dismissal. consult in a meaningful consider options for reasonable accommodation; alternatives will cause unjustified hardship JR 662/06 Standard Bank of South Africa v CCMA & others Date of dismissal is the date on which employee informed of the non-renewal or renewal on less favourable terms not date on which contract expires not date when contract terminated 190(2) P139/07 Ndlambe Municipality v CCMA & Others Misconduct Imprisonment preferred charge; supervening; impossibility of performance, JR2025/06 Eskom Ltd v CCMA & Others Fraud No fraud established; Dismissal unfair; Employee could have been dismissed for gross negligence had he been charged with that D757/06 Mhlatuze Water Board v CCMA & Others Misconduct Employee misrepresenting himself as an attorney acting on employers behalf; Dismissal justified D863/06 Nampack Corrugated Containers (Pty) Ltd v CCMA & Others Misconduct Alcohol fair C5054/06 NUM & Another v CCMA & Others Misconduct Whether conduct work related; Employer to show a nexus between the employees conduct and its business; Stokvel scheme JR2558/05 Pick n Pay Family Store Brits v Molebalwa N.O & Others Misconduct Fairness of a sanction employees belief that his action was in the interests of the employer and not in his own interest C434/06 Worldnet Logistics (Cape) (Pty) Ltd v CCMA & Others Poor performance Employee not meeting targets over protracted period despite counselling; Dismissal fair P286/06 Chesteron Industries (Pty) Ltd v CCMA & Others Misconduct Alcohol related Insufficient evidence that employees faculties, performance or conduct affected P488/05 Scrader Automotive (Pty) Ltd v MEIBC & Others Reason The reason for the dismissal also had to be the one in existence at the time the employee was notified of his dismissal JR819/07 Landsec & Another v CCMA & Others board membership termination resulted in dismissal JS349/07 South African Post Office Ltd v Mampeule Consistency An inconsistency challenge would fail where the employer was able to differentiate between employees who committed similar transgressions on the basis of, among others, different personal circumstances, the severity of the misconduct, or other material factors. JR243/05 Southern Sun Hotel Interests (Pty) Ltd v CCMA & Others Sexual Harassment to be viewed from the point of view of the victim  the question was therefore how the victim perceived the conduct, and whether or not the perception was reasonable P487/09 Motsamai v Everite Building Products (Pty) Ltd Meaning of "dismissal" The fact that the employer had never expressly referred to dismissal in any email was not significant in any way, since it had not been necessary to use the word dismissal. No return to work, refusal fair JR1864/09 Setcom (Pty) Ltd v Dos Santos & Others Operational requirements provide sufficient information to enable them to participate meaningfully in the process C945/09 Weber v Ordertalk SA (Pty) Ltd Misconduct Bringing name in disrepute no evidence that relationship of trust had broken down. P 233/10 Ikwezi Municipality v SA Local Government Bargaining Council and Others Misconduct Absence without leave the reason for the employees absence, the duration of the absence, the employees work record, and the employers handling of this offence in the past. The onus rested on the employee to tender a reasonable explanation for her absence. Sangoma course JR1856/08 Kievits Kroon Country Estate (Pty) Ltd v CCMA & Others Misconduct Alcohol abuse Was responsible for actions Dangerous work C644/2009 Transnet Freight Rail v Transnet Bargaining Council and Others Misconduct Absenteeism Medical certificate by traditional healer Rejected JR1412/05 Vodacom (Pty) Ltd v CCMA & Others Misconduct E/e must be blamed no breakdown trust relationship P608/09 Prowalco (Pty) Ltd v CCMA and Others Misconduct insubordination (i) an order, which could also be in the form of a warning, had to have been given to the employee; (ii) the order had to be lawful; (iii) the reasonableness of the order had to be beyond reproach; and (iv) the refusal or failure by the employee to obey the order had to have been serious enough to warrant dismissal. JR3479/09 Motor Industry Bargaining Council v CCMA & Others Misconduct Refusal to work overtime against BCEA JR1639/05 Maneche & Others v CCMA & Others Misconduct Dishonesty Procedure no mitigation; cannot cure dishonesty D600/05 Kalik v Truworths (Gateway) & Others Misconduct Language "Monkey" The level of malice, the extent of the abuse and its degree are factors that may aggravate the offence. D202/06 Edcon Ltd v Grobler & Others Misconduct HIV AIDS Conflict of interest D781/05 Bootes v Eagle Ink Systems KZN (Pty) Ltd Misconduct Alcohol failure to prove JR1895/05 Astore Africa (Pty) Ltd v CCMA & Others Misconduct Dishonesty Presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, such as long service and a clean record are likely to have a minimal impact on the sanction to be imposed D679/04 Hullet Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & Others Misconduct Reasons at time of dismissal apply DA 10/05 Fidelity Cash Management Service v CCMA & Others Misconduct racist remark "he felt that the manager was busy"; interrogating him as if I am in Vlakplaas here. employers should also guard against labelling actions as racist without having investigated properly. JR3232/06 Vodacom (Pty) Ltd v Gildenhuys N.O. & Others Misconduct stock loss JR2980/05 Mercurius Motor Transport v Moletsane N.O. & Others Misconduct Sanction Employer may not increase sanction on appeal unless provided for in its disciplinary procedure and audi alteram partem rule applied Misconduct Theft Driver deviating from route on day employers fresh produce stolen D550/06 Freshmark (Pty) Ltd v SACCAWU & Others Misconduct Dismissal; Inconsistency One employee found guilty and another not despite the circumstances of their alleged transgression being the same; Unfair JR955/07 Alstom Electrical Machines (Pty) Ltd v CCMA & Others Misconduct Sanction Whether employer may alter sanction of final warning imposed by chairperson to dismissal; findings and conclusions were so grossly unreasonable as to warrant interference by the employer JR 2158/07 Rustenberg Base Metal Refiners (Pty) Ltd v Solidarity & Others Misconduct dishonesty dismissal of the third respondent (the employee) for misconduct was too harsh. There were various authorities to support the view that it was not every act of dishonesty that would lead to an automatic dismissal JR1609/06 Cash Paymaster Services Northwest (Pty) Ltd v CCMA & Others Misconduct dishonesty Other case law cited Toyota SA Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 (LAC JR1609/06 Cash Paymaster Services Northwest (Pty) Ltd v CCMA & Others Misconduct Breathalyzer test company policy on Breathalyzer D483/06 Arangie v CCMA & Others misconduct pornography inconsistency; parity principle First, it was trite that not every wrong conclusion of law led to a conclusion that there had not been a fair trial; the mistake of law had to be material. Secondly, the law as it currently stood was that an employer was entitled, when it was fair to do so (subject to the qualification that it was only in exceptional circumstances that it would be fair), to revisit a penalty already imposed and substitute it with a more severe sanction. D460/08 Samson v CCMA & Others Misconduct Consistency Gravity of misconduct relevant; seniority relevant; different sanction justified; application dismissed JR2629/07 Nel v The Transnet Bargaining Council & Others Misconduct Insubordination finding of insubordination as opposed to gross insubordination in arriving at the conclusion that dismissal was too severe a sanction C174/07 m Hand-to-Hand Couriers v National Bargaining Council for the Road Freight Industry & Others Misconduct Alcohol misconduct and incapacity due to ill health JR2148/08 Saga Moses Mahlangu v Minister of Sport and Recreation Misconduct misrepresentation qualifications trust relationship not broken JR531/08 Westonaria Local Municipality v South African Local Government Bargaining Council & Others Misconduct malicious damage to an aircraft and not following standard operating procedures. JR2353/05 Equity Aviation (Pty) Ltd v SATAWU obo Thoga & Others Misconduct Penalty Special leave for long period Unlawful D908/09 Antonie Willem Heyneke v Umhlatuze Municipality Misconduct Sanction The nature of a commissioners task in considering the question of sanction was not to decide what he/she would have imposed as a sanction, but rather to decide whether what the employer decided as to sanction had been fair. C966/08 Theewaterskloof Municipality v SALGBC (Western Cape Division) & Others Misconduct Sanction Other case law cited Fidelity Cash Management Service v CCMA & others (2008) 29 ILJ 964 (LAC)) C966/08 Theewaterskloof Municipality v SALGBC (Western Cape Division) & Others Misconduct Previous disciplinary record Irretrievable breakdown in relationship not established JR1516/07 South African Revenue Services v CCMA & Others Misconduct Bringing name in disrepute Objective test; examine entire context Objectively, the type of conduct displayed by the employee had had the potential, at the very least, to call into question the reputation of the employer. DA22/08 Timothy v Nampak Corrugated Containers (Pty) Ltd misconduct Renting of vehicle breach of trust JR2279/07 misconduct breach of trust Other case law cited Edcon v Pillemer NO & Others (2009) 30 ILJ 2642 (SCA) JR2279/07 Mathews v CCMA & Others misconduct Alcohol abuse Consistency consistency in cases of dismissal did not apply as a matter of rule, but rather as part of the assessment of the fairness of the dismissal C23/08 National Union of Mine Workers & Another v CCMA & Others misconduct Rule Zero tolerance C23/08 National Union of Mine Workers & Another v CCMA & Others Misconduct Theft cable from a bin, no rule existed P491/08 Ducan Manufacturing v The Metal and Engineering Industries Bargaining Council & Others Misconduct Consistency Onus on employer to show JR2915/08 Woolworths (Pty) Ltd v Matlala NO & Others Misconduct Sanction: following factors: the employee had had an unblemished service record of 16 years; the value of the food taken by the employee had been minimal; it had been evident from the evidence presented at arbitration that the employee had not acted in flagrant violation of company rules; the item the employee had taken was not a luxury item or an item which the employee had stolen to enrich herself; the employee had not been employed in a supervisory position; and she had not worked in a specialty department, from where most of the shrinkage in the employers shop originated. JR2786/08 Superand Superspar v Retail & Allied Workers Union obo Khoza & Others Misconduct False driver's license no remorse trust breached Misconduct Procedure less formal approach particularly suitable where senior management employee; aware that his misconduct had destroyed the trust relationship; conceded to superior that he had failed C109/2010 Nitrophoska (Pty) Ltd V CCMA and Others Misconduct Procedure Other case law cited Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others (2006) 27 ILJ 1644 (LC) C109/2010 Nitrophoska (Pty) Ltd V CCMA and Others Misconduct Assault 30 years service; fairness in favour of the employee (i) the employee had not denied the commission of the offence; (ii) he had accepted that what he had done was wrong, and had subjected himself to a further medical assessment and treatment; (iii) the offence had been a result of provocative behaviour on the part of the learner; and (iv) the disciplinary action had been taken only because of pressure from outside the school. The matter could possibly have been resolved through internal facilitation. JR2885/08 Stander v Department of Education, North West Misconduct Insubordination failed to wash his truck employer had acted too hastily in dismissing him; progressive discipline JR 896/10 Karan Beef (Pty) Ltd v Mbelengwa NO and Others Misconduct Theft copper wire Défense he was a kleptomaniac, issue before the arbitrator concerned the dishonest conduct of the respondent JR 2191/09 Transnet Rail Engineering Ltd v Transnet Bargaining Council and Others Misconduct influence of alcohol category of misconduct for reporting for duty under the influence of alcohol had not been extinguished by the incapacity classification for employees with alcoholism. An obligation to assist an employee who does not suffer from such incapacity does not rest on the shoulders of an employer. Such an employee is responsible for their actions and can, and should, be held accountable for any misconduct they commit. Once a commissioner finds that an employee is not an alcoholic he/she is required to consider whether a finding of guilt is fair and whether the sanction applied by the employer is reasonable and justified in the circumstances. In order to do this the commissioner is required to continue to apply the law relating to misconduct and not that relating to incapacity. A further consideration ought to be the implications of being lenient in the application of an important rule and the message such leniency sends to other employees regarding the infringement of such a rule. The need to deter other employees from committing the same misconduct is a response to risk management and is as legitimate a reason for dismissal as a breakdown in trust. The commissioner had failed to take these principles into account in coming to the conclusion that he did D822/10 Builders Trade Depot v CCMA and Others Misconduct corruption JR948/09 Director-General, Department of Public Works and Another v Public Service Sectoral Bargaining Council and Others Misconduct Corruption Prevention and Combating of Corruption Activities Act of 2000 JR948/09 Director-General, Department of Public Works and Another v Public Service Sectoral Bargaining Council and Others Misconduct absenteeism absence from work for a period of eight days. laid down a rule; instructed to call his manager directly before six; not unreasonable for the employer to want to know when the applicant would be back at work D994/09 Toyota SA Motors (Pty) Ltd v Lewis and Others Misconduct alcohol was being sold on the farm employee called out that he sold alcohol JR 433/10 Rechs Nurseries (Pty) Ltd v CCMA and Others Misconduct Alcohol Zero tolerance Level of alertness required could not be compared to that of a pilot  Dismissal too harsh in the circumstances C24/2011 Taxi-Trucks Parcel Express (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others Misconduct Alcohol type of the work did not perform skilled, technically complex and responsible tasks: he was a general worker who was loading tyres onto a truck at the time C24/2011 Taxi-Trucks Parcel Express (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others Misconduct corruption J420/08 SAMWU v North West Housing Corporation & Another Misconduct Dismissal Probation No procedure followed JR2175/09 South African Football Association v Ramabulana NO & Others Misconduct Dishonesty Steeling R14-00 caught on security cameras Employees conduct destroying trust relationship; Length of service and clean record cannot serve as mitigating factors JR1068/02 Ster Kinekor Films (Pty) Ltd v Maseko N.O. & Others Misconduct for sleeping underground dismissal was too harsh JR1869/06 NUM & Another v CCMA & Others Misconduct Stock loss evidence needed to be led to substantiate the fact that continued employment would be intolerable JR1333\05 New Clicks SA (Pty) Ltd v CCMA & Others Misconduct gross negligence; security of cash JR2853/07 Edgars Consolidated Stores Ltd v CCMA & Others Misconduct Sanction take into account all the circumstances; consider the importance of the rule breached; consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employees challenge to the dismissal; consider the harm caused by the employees conduct; consider whether additional training and instruction may result in the employee not repeating the misconduct; consider the effect of dismissal on the employee and consider the employees service record. JR2853/07 Edgars Consolidated Stores Ltd v CCMA & Others Misconduct Disciplinary notice must be unambiguous and must contain sufficient and precise information to ensure employee has proper opportunity to prepare JR1363/07 Davies Plumbing Civils CC v CCMA & Others Misconduct authority the manager who had signed the letter authorizing the employees extended absence did not have the authority to do so; this could not become the problem of the employee. JR1363/07 Davies Plumbing Civils CC v CCMA & Others Misconduct Procedure Not allowed representation; delay in obtaining a representative was likely to have had an impact on the speedy finalization of the disciplinary hearing, a balance had to be struck between the interest of speedy finalization and a right to representation. JR948/07 ITT Flygt (Pty) Ltd v Odgers & Others Misconduct sexual assault Touching breast then immediate assault JR2763/08 CASHBUILD (Pty) Ltd v Ramotshela NO & Others Misconduct Disciplinary hearing; illegal immigrant. procedural fairness, Rampai J held that a meeting between an employer and employee could never be a substitute for a disciplinary enquiry and that what had happened in the meeting (in which he was informed of his dismissal) came nowhere close to a hearing. JR1032/04 Sibande v CCMA & Others Misconduct procedure; Disciplinary action Mandate Board to decide J1780/10 Dyasi v Onderstepoort Biological Product Ltd and Others racial slur we need to get rid of the whites racism through indirect, underhand or divisible means JR1904/2010 Modikwa Mining Personnel Services v CCMA and Others Misconduct disclosed confidential customer details misrepresentation by the falsification of his CV J2121/10 MTN Service Provider (Pty) Ltd v CCMA and Others Absence Attending traditional healer course Ubuntu Religious diversity JA 78/10 Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others Misconduct Gross Negligence to be Negligence loss of delivery of R135000 goods at bogus customer Unfair C151/2012 Solid Doors (Pty) Ltd v Hanekom NO and Others Misconduct; Parity principle; Not consider final warnings in collective dismissal D235/03 SATAWU & Others v Ikhwezi Bus Service (Pty) Ltd Other case law cited Trident Steel (Pty) Ltd v CCMA & Others (2005) 26 ILJ 1519 (LC) JR2025/06 Eskom Ltd v CCMA & Others Misconduct operational incapacity ; No such category of dismissal JR1061/07 Samancor Ltd v MEIBC & Others Procedural fairness Chairperson also acting as initiator; Unfair JS877/05 Misconduct Accepting a bribe Consistency Dismissal fair although inconsistent JR 2028 Mphigalale v Safety & Security Sectoral Bargaining Council and Others Misconduct Imprisonment trite that supervening impossibility of performance is a defence to breach of contract which would also include the employment contract. Where the employee is the cause of his absence from work, it appears that his service may be terminated. Where it is a factor beyond his control like an unlawful arrest which either leads to his acquittal or withdrawal of the charges, it cannot be said that the employee was absent without permission. As his incarceration was beyond his control, it could not be said that he was absent without permission. He had a valid reason for his absence and had to be reinstated but with loss of income. JR1061/07 Samancor Ltd v MEIBC & Others Inconsistency Racist email JR 3390/05 Edgars Consolidated Ltd (EDCON) v CCMA & Others Theft Value of items stolen not the determining factor; Regard must be had to the impact of the conduct on the employment relationship JA08/04 Shoprite Checkers (Pty) Ltd v CCMA & Others Misconduct Gambling no harm suffered PA10/09 Volkswagen v Koorts Misconduct Charges to be notified with sufficient particularity of the real allegations against her DA4/06 Edcon Ltd v Pillemer N.O. & Others Misconduct Charges charged for failing to report accident, found guilty for lying at hearing; unfair DA4/06 Edcon Ltd v Pillemer N.O. & Others Misconduct Resigned but e/er decide to dismiss; no procedure; CCMA found procedurally unfair; no compensation JA22/05 Ellerine Holdings Ltd v CCMA & Others Misconduct Timekeeping JA37/06 Mutual Construction Company TVL (Pty) Ltd v Ntombela NO & Others Misconduct Theft of scrap metal Zero tolerance the dismissal of the employee had been justified for operational reasons and had been fair. JA51/09 George Miyambo v CCMA & others Misconduct Collective misconduct JA14/08 CEPPWAWU v National Bargaining Council for the Chemical Industry & Others Misconduct Removal, Attempted removal, unauthorized possession of 1 L milk If E/r lost control DA1/08 Rainbow Farms (Pty) Ltd v CCMA & Others misconduct false information in CV to appoint a person to a post who was only qualified for the post by making untrue claims in her application JA56/06 SA Post Office Ltd v CCMA and Others misconduct arbitrator and Labour Court holding that employee only negligent and dismissal not warranted JA56/06 SA Post Office Ltd v CCMA and Others Misconduct Insubordination "not every case of insubordination triggered a dismissal" CA6/2011 Wasteman Group v SAMWU forged signature, Expert witness, Employee did not provide his own witness. JR2512/2007 National Union of Mineworkers and Another v CCMA and Others Romantic affair, email Employees conduct not bringing employer into disrepute. C158/2011 HRP Distribution v National Bargaining Council for the Road Freight Industry and Others Theft, two litre bottle of milk that had been delivered as a donation by a local dairy, the issue of the proportionality of the sanction to the offence was therefore not relevant: the critical issue was whether the employee was guilty of misconduct or not in the light of the facts of the case. JA12/10 Matsekoleng v Shoprite Checkers (Pty) Ltd Insubordination, failed to call fellow worker, failure to refer to disciplinary code. JR2327/10 National Union of Mineworkers and Another v CCMA and Others Insubordination Hand over laptop, was totally unacceptable and absolutely undermined the authority of his employer over him. JR853/2011 Ndwanya v SA Local Government Bargaining Council and Others fraud, manager not trained and inexperienced, TV license not produced on sale. JR 1387/09 JDG Trading (Pty) Ltd t/a Electric Express v Osler and Another Failure to declare items at security, Unfair D787/10 Woolworths (Pty) Ltd v CCMA and Others Insubordination persistent insubordinate behaviour could justifiably not be tolerated by any employer. JA 25/11 NUM v Northam Platinum Ltd Procurement policies, no insinuation that he was out to enrich himself, if a senior manager accountable. J1830/11 Passenger Rail Agency of South Africa (Pty) Ltd v Tokiso Dispute Settlement (Pty) Ltd and others Misconduct serious disrespect Stated: that management harassed employees. The invitation did not prescribe the format and the contents of the comment about the employees views. Dismissal was not an appropriate sanction. (JR221/12) [2013] ZALCJHB 167 Legobate v Quest Flexible Staffing and Others Misconduct Absence without leave Failing to examine whether trust relationship had broken down. (JR381/12) [2013] ZALCJHB 169 SATAWU obo Matlatso v CCMA and Others Misconduct Provided an affidavit to a professional consultancy concerning matters that were detrimental or potentially detrimental to his employers interests in potential litigation. Dismissal fair (JR 815/12) [2013] ZALCJHB 163 Buys v Tokiso Dispute Settlement (Pty) Ltd and others Receiving gifts Consistency: Have to take into account employees seniority and that magnitude of her offence compared to those of other employees. (JR 3166/10) [2013] ZALCJHB 226 Nedbank Ltd v CCMA and Others Constructive dismissal Reduction in salary, Test: Causation, was resignation due to conduct of employer, was resignation as a result of us and fundamental breach of employment contract, was employer made aware of this. JR 1551/11 Schindler lifts Misconduct Charges was negligence and not gross negligence, duration of offence and loss was very serious. JR 1643/08 United transport and Allied trade Union v Gaylard Dishonesty Enticing other employees to strike, denial that he participated in strike, dishonesty, trust relation broken down, dismissal substantively fair. (JR 2650/2010) [2013] ZALCJHB 216 Tiger Brands Field Services (Pty) Ltd v CCMA and Others Misconduct/ Poor work performance Clear from the evidence that the real reason was the perceived poor performance by the employee, Dismissal substantively unfair. Decision had been taken to terminate the employees services before the consultation process commenced. (CA 15/2011) [2013] ZALAC 30 4Seas Worldwide (Pty) Ltd v CCMA and Others Misconduct Underbringing at till, only suspicion, Unfair. (DA 4/11) [2013] ZALAC 29 Mbanjwa v Shoprite Checkers (Pty) Ltd and Others Dereliction of duty and gross negligence alleged dereliction of duty and gross negligence for failing to follow due procedure to shut down the plant The arbitrator had furthermore failed to appreciate the task that confronted him in considering whether the trust relationship had broken down. JR 2799/11) [2013] ZALCJHB 280 National Petroleum Refiners (Pty) Ltd v National Bargaining Council for the Chemical Industry and Others Alcohol Arbitrator treating matter as one of incapacity despite the employee not having previously raised issue of alcoholism or sought assistance, No obligation on employer to assist employee who does not seek assistance. (JR 667/2011, J 515/2013) [2013] ZALCJHB 302 ADT Security (Pty) Ltd v CCMA and Others By operation of law (JR 2934/11) [2014] ZALCJHB 8 Public Servants Association obo Lessing v Safety and Security Services Bargaining Council and Others Alcohol The existence and the reasonableness of the rule governing the conduct complained of was not disputed by the employee. Dismissal fair. (JR 90/2012) [2014] ZALCJHB 14 Xstrata Coal South Africa v CCMA and Others Biased: Co-owner of business and husband of person who had made complaint. No evidence of bias on record and issue never raised or put to witnesses. Consistency: never disputed that the employee had occupied the more responsible position as cashier and there was no evidence on important issues pertinent to the question of consistency for him to assume he was really dealing with comparable cases. (JR3063/2010) [2014] ZALCJHB 48 Vaal River Motors CC v Dispute Resolution Centre and Others Fraud, C.V. Be no doubt in the trust of that person who was responsible for the maintenance of the applicants accreditation system. Her dishonesty in the present case was of a serious magnitude. Fair. (D303-11) [2014] ZALCD 2 Rainbow Farms (Pty) Ltd v Dorasamy NO and Others Sanction Mere fact of breach of misconduct not entitling employer to dismiss. Consideration of an appropriate sanction constituted an important yet separate component of the arbitration process. Not even considered important factors such as the employees considerable length of service (24 years) and the fact that he had an unblemished service record with his employer for that long period. (JR297/2009) [2014] ZALCJHB 76 Jansen v CCMA and Others Authority No quorum (J620/14) [2014] ZALCJHB 122 IMATU and Another v City of Matlosana Local Municipality and Another Biased Employees had not challenged alleged bias at disciplinary hearing and not producing any evidence thereof. (JR706/2012) [2014] ZALCJHB 137 Pillay and Another v Broadband Infraco (Pty) Ltd and Others Misconduct. she was given a prepared and already signed retrenchment agreement. She was instructed to sign the agreement or leave immediately. When she refused to sign she was told to pack her things and leave immediately. Charged with gross insolence and insubordination and was dismissed. She was provoked. Ulterior motive in proceeding with disciplinary action. (JR1767/2012) [2014] ZALCJHB 114 Windscreen Distributors (Pty) Ltd v Motor Industry Bargaining Council (Dispute Resolution Centre) and Others s 46 and s 48 of Close Corporations Act 71 of 2008 still applicable Of member of a close corporation. No proper decision taken at meeting of close corporation to dismiss member. Dismissal null and void. (C568/12) [2014] ZALCCT 29 Chafeker v CCMA and Others Misconduct Misrepresentation in job application Registration of in terms of Act 56 of 2001. Prohibition of employment of security officers with previous convictions. Applicable only to convictions with in period of 10 years prior to coming into operation of the Act in November 2001. (C 389/2011) [2014] ZALCCT 35 G4S Secure Solutions (SA)(Pty) Ltd v Ruggiero NO and Others Misconduct unauthorised absence Dismissal without application of progressive discipline. This failure to warn employee of change in attitude should have been brought to attention of employee by commissioner (P15/13) [2014] ZALCPE 11 Tom v CCMA and Others Jail sentence without bail Whether his incapacity was permanent or temporary in nature. The applicant was unable to perform his duties in terms of his contract of employment and that his employer had acted fairly by dismissing him. (P561/11) [2014] ZALCPE 10 Gwadana v South African Local Government Bargaining Counsel and Others consuming company property without authorisation sanction Precepts of Items 3(4) and 3(5) of the Code of Good Practice on Dismissal read with s 188(2) of the LRA, and the emphatic weight given by the Constitutional Court to the importance of having regard to a number of factors in deciding whether it was fair to dismiss an employee for misconduct. Would have dispelled the notion that a finding of guilt automatically determined the sanction. Applicant consistently dismissed any employee for the misconduct was not sufficient reason. (C566/2011) [2014] ZALCJHB 359 Pick n Pay Retailers (Pty) Ltd v CCMA and Others Misconduct: Theft unauthorised possession of a bottle of mayonnaise distinction between unauthorised position and theft. The court held that, generically, theft and unauthorised possession were both forms of dishonesty and both were premised on conduct of an employee which deprived the employer of the ownership of an item. Unauthorised possession dispensed with the requirement of intention and called on the consideration of three elements, namely: 1 an item belonging to the employer, 2 which was found in the possession of the employee and, 3 for which the employee has no authority to possess. Continental Oil Mills (Pty) Ltd v Singh NO and Others (JR 2152/2010) [2013] ZALCJHB 30 Sylvania Metals (Pty) Ltd v Mello NO and Others Misconduct: Breaking a rule Was no need for a permit to adjust the blower valve as there was no proof that a policy existed to this effect and furthermore that if there had been need for a permit. (JR 3246/11) [2015] ZALCJHB 35 Sylvania Metals (Pty) Ltd v Mello NO and Others Misconduct Viewing of pornographic material, give him a final written warning. Implied term did not extend to include the right of an employer to substitute its own sanction for that of the chairperson, particularly in a situation where the parties to a collective agreement had elected expressly to confer on the disciplinary chairperson the sole power to impose the final sanction. Dismissal was substantively fair. The employee was awarded 12 months remuneration as compensation for his procedurally unfair dismissal. (C683/11) [2015] ZALCCT 14 South African Revenue Service v CCMA Misconduct Cashiers, cash was short to the extent of their cash floats. Show signs of tampering. Not every irregularity would vitiate the entire award: the reasonableness of the arbitration award had to be assessed in the light of the totality of the evidence presented at the arbitration. The possibility that the store administrator could be responsible for the shortfalls was less persuasive given that there was uncontested evidence that a drop procedure had to be followed when dropping the bags. (DA7/2013) [2015] ZALCD 17 Woolworths (Pty) Ltd v CCMA and Others Misconduct Told her that the company was no good and that she had made a mistake in joining it. The secret recording of interactions with the firm in the course of the process, was also not bona fide. In the event the court reduced the compensation of four months remuneration it would have awarded, by half on account of her underhand conduct during the formal consultation process. (J 1433/09) [2015] ZALCJHB 123 Raftopulos v Van de Venter Mojapelo Attorneys Inc doctrine of common purpose JR2537/03 RSA Geological Services (Division of De Beers Consolidated Mines Ltd) v Grogan N.O. Other case law cited Fawu & Others v ABI and the SCA decision in Chauke & Others v Lee Service Centre t/a Lesson Motors. JR2537/03 RSA Geological Services (Division of De Beers Consolidated Mines Ltd) v Grogan N.O. Unauthorised possession JR1685/12 Massbuild (Pty) Ltd t/a Builders Warehouse v Commission for Conciliation, Mediation And Arbitration and Others (JR1685/12) [2015] ZALCJHB 234 (4 August 2015) Woolworths (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2011) 32 ILJ 2455 (LAC) at para 34 Where an employee is found in unauthorised possession of company property, the evidentiary burden shifts to him to justify such misconduct. theft JR2986/2010B Devel Switchboards (Pty) Ltd v Metal And Engineering Industries Bargaining Council and Others (JR2986/2010B) [2015] ZALCJHB 254 (7 August 2015) Kalik v Truworths (Gateway) & Others [2008] 1 BLLR 45 (LC) at [27]. [27]   An employment relationship broken down as a result of an act of dishonesty can never be restored by whatever amount of mitigation. The underlying reason for this approach is that an employer cannot be expected to keep dishonest workers in his/her employ. The other reason for this is to send an unequivocal message to other employees that dishonesty will not be tolerated  The rational for this approach are also informed by the consideration that a worker with an unblemished record cannot after an incident relating to an act of dishonesty, continue to be trusted. It is the operational risk to the business of an employer that arises from the dishonest conduct, which cancels off whatever good record the worker may have had before the commission of the offence. In other words there would be no purpose in conducting an inquiry into mitigating circumstances where a worker is guilty of misconduct relating to dishonesty. However, this approach would not apply in cases involving other forms of misconduct. The factors to be considered would in my view be where the failure to intervene would lead to grave injustice or where justice might be attained by other means. Trust JR483/13 Metrorail (PRASA) v SATAWU obo Tshabalala and Others (JR483/13) [2015] ZALCJHB 422 (5 October 2015) Miyambo v CCMA and Others (2010) 31 ILJ 2031 (LAC) at para 13 Misconduct: computer password JR2525/11 Emfuleni Local Municipality v SALGBC and Others (JR2525/11) [2015] ZALCJHB 356 (14 October 2015) At most, the employee created a hint of doubt and the remote possibility that some other person committed the offence. But this was not sufficient in light of the standard of proof applicable in labour disputes. In Potgietersrus Platinum Ltd v CCMA and Others[3], the Court held that an arbitrator incorrectly applied the required standard of proof. The arbitrator accepted the remote possibility that persons other than the accused employee had committed the offence, thus superseding the greater probability that the employees had committed the offence. Evidence constitutes a prima facie case of dishonesty against the employee. This then shifts the evidentiary burden to the employee. In the absence of a credible and probable explanation from the employee, the inference that the arbitrator can most reasonably draw is that the employee acted dishonestly and that the employer has discharged its onus. Misconduct: Consuming food JR2711/12 Pick 'n Pay Retailers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2711/12) [2015] ZALCJHB 385 (6 November 2015) Consumption of food items. Employee tried to deceive the Commission by attempting to introduce false evidence and showing no remorse. Dismissal fair. Misconduct: hiding the laptop in one of the fridges JR715/13 Pick 'n Pay Hypermaeket v Commission for Conciliation, Mediation and Arbitration and Others (JR715/13) [2015] ZALCJHB 393 (12 November 2015) [17] On the question of substituting relief, I am satisfied that, on a balance of probabilities, the third respondent probably did admit to hiding the laptop in a fridge, and that the most probable reason for doing so was to remove it at a later stage. Accordingly, he was guilty of the misconduct he was charged with and dismissal was not an inappropriate sanction given the gross dishonesty involved, irrespective of the other mitigating factors. Such conduct is inherently destructive of the trust relationship. Misconduct: gross misconduct in having taken a hamburger without permission JR2493/2012 Engen Stargan (Pty) Ltd t/a Kroonvaal 1 Stop v NUMSA obo Ntoahae and Others (JR2493/2012) [2015] ZALCJHB 395 (13 November 2015) It is clear to me that whatever rule was in place, it was more honoured in the breach than in the observance. I take note of the employees argument that, apart from Du Toits say-so, there was no clear evidence of a breakdown of the trust relationship between the parties and also, that the sanction of dismissal was too harsh in the circumstances Misconduct JR130/14 Rustenburg Platinum Mine v SAEWA obo Bester and Others (JR130/14) [2016] ZALCJHB 75 (26 January 2016) Court: [23] In the present instance, there is no conceivable reason why race might justifiably have served as an identifier...Bester was not, as the commissioner suggested, benignly referring to a physical attribute in order to identify a certain person. Besters reference to Thomelang as a swartman was derogatory and racist. CCMA Award: "I really do not see how such a phrase (referring to a physical attribute in order to identify certain person) could be classified as a racial remark. It would be similar to the situation where someone comes into the CCMA offices not knowing my name and then asking for me by stating the wit man who for instance parked next to the entrance gate." At the core of these decisions is the decisive break that the Constitution represent from a past in which racism was institutionalised and legitimised (see S v Makwanyane & another[1995] ZACC 3;1995 (3) SA 391(CC)) and that racism in the workplace is not to be tolerated. In the course of her judgment, Gaibie AJ found that an utterance by an employee to the effect that we need to get rid of the whites was clearly and unequivocally racist in nature. To the extent that the employee dismissed for making this utterance had contended that the words ought necessary to be viewed in the context in which they were used, Gaibie AJ said the following, at paragraph 29 of her judgment: I disagree with this proposition. Words have their own meaning and do not necessarily require a context within which to acquire meaning. Depending on the words used, there may however be circumstances in which words may acquire a different meaning. I do not believe that the racist slur uttered by Ramepadi requires a context for the purposes of interpretation. Their plain meaning indicates racism. What the Modikwa Mining judgment (and many others) demonstrate is that despite the formal dismantling of institutional apartheid, issues of race and racism remain prevalent in South African workplaces. The use of racial identifiers plays an obvious role in the perpetuation of negative stereotypes. The concept of race, as a social construct, continues to be imbued with ideological baggage and can serve the purposes of subjugation, where particular race groups continue to be viewed as other. Modikwa Mining Personnel Services(2013) 34 ILJ 373 (LC) (see, for example, Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & others(2002) 23 ILJ 863 (LAC),Lebowa Platinum Mines Ltd v Hill(1998) 19 ILJ 1112 (LAC)) Campbell Scientific Africa (Pty) Ltd v Simmers & others(CA 14/2014, 23 October 2015) in the context of a case concerning remarks of a sexual nature made to a woman employee, the use of derogatory and demeaning remarks are concerned with power relations and serve to create a work environment where the right to dignity of employees is impaired, and barriers to substantive equality reinforced. Misconduct JR2744/11 MCC Group of Companies v Mokabane N.O and Others (JR2744/11) [2016] ZALCJHB 234 (10 February 2016) The Misconduct JR2630/12 NUM obo Mogashoa v Commission for Conciliation, Mediation and Arbitration and Others (JR2630/12) [2016] ZALCJHB 62 (23 February 2016) Dishonest conduct in that you must have been aware or noticed that 17 kg of gold was hidden: Applicant was at the very least probably aware of the concealment of the gold in the weights which most probably occurred when they were working on the weights that Sunday. Even if he was merely a bystander, his silence in not reporting the concealment of the gold made him complicit with the boilermaker who was dismissed arising from the incident. The strong circumstantial evidence against him was such that he needed to provide a plausible explanation why, notwithstanding that evidence, he was not a participant or would not have been aware of what was going on despite working together with the boiler-maker that day in the small workshop. Misconduct JR2195/14 SAMWU obo LUNGILE FELICIA vs CCMA Distinguished between insolence (repudiation by an employee of his duty to show respect) and insubordination (refusal to obey an employer's instructions). Both forms of misconduct are properly embraced by the terms of 'insubordination' as used in Schedule 8 Code of practice: dismissal in the Labour Relations Act of 1995 ("the Code of good practice"). Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 5 BLLR 484 (LAC) at para 19. [t]he offence of insubordination in the workplace has, in this regard, been described by the courts as a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to an employers' authority. Commercial Catering and Allied Workers' Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC) at 314H-J. Probation JR64/2014 IBM South Africa (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration (CCMA) and Others (JR64/2014) [2016] ZALCJHB 151 (19 April 2016) The employer has the right to test the employee in different situations and determine whether she is capable of coping with the rigours of permanent employment. If a probationary employee is found to be wanting on key aspects of the job description the employer is at liberty to follow its instincts and not appoint the employee permanently. These important but often intangible considerations are inherent in the context of less compelling reasons...The Court held that when dealing with a person on probation in a responsible position like a professional assistant, where the person claims to have the necessary experience to do the job, it is not unreasonable for the employer to simply point out the perceived shortcoming of the probationer and to emphasize the importance of improving her performance if she wants to be permanently employed. Rheinmetall Denel Munition (Pty)(Ltd) v National Bargaining Council for the Chemical Industry and others (2015) 36 ILJ 2117 (LC). The Arbitrator failed to adopt a holistic approach to the large body of evidence before her and failed to consider and place the Third Respondents performance and behaviour during her probationary period in its proper context. This Court dealt with the distinction to be drawn between a probationary employee appointed to a responsible position and a junior employee on probation Misconduct JR251/2011 Klaas and Another v Eskom Holdings Ltd and Others (JR251/2011) [2016] ZALCJHB 152 (19 April 2016) Negligence in that it was alleged that he was negligent in the supervision of an apprentice under his charge, which resulted in a contact incident, which in turn resulted in a fatality. I agree with her findings that the severe consequences of First Applicants lack of care broke the trust relationship and that the sanction of dismissal was indeed the appropriate one. Misconduct JA78/14 Metsimaholo Local Municipality v South African Local Government Bargaining Council and Others (JA78/14) [2016] ZALAC 1; [2016] 5 BLLR 435 (LAC) (3 February 2016) moonlighting the collective agreement, which was relied upon by the appellant, does not outlaw moonlighting. It expressly provides that employees had to apply for permission to do private work and it states that such permission shall not be unreasonably withheld. Misconduct CA13 /14 City of Cape Town v Freddie and Others (CA13 /14) [2016] ZALAC 8; [2016] 6 BLLR 568 (LAC); (2016) 37 ILJ 1364 (LAC) (15 March 2016) Racism without any justifiable cause, as being even [worse] than Verwoerd was an offensive racial insult, SACWU and Another v NCP Chlorchem (Pty) Ltd and Others(2007) 28 ILJ 1308 (LC) at para 31; [2007] JOL 19526 (LC) Sanction CA13 /14 City of Cape Town v Freddie and Others (CA13 /14) [2016] ZALAC 8; [2016] 6 BLLR 568 (LAC); (2016) 37 ILJ 1364 (LAC) (15 March 2016) Toyota SA Motors (Pty) Ltd v Radebe and Others [2000] 3BLLR 243 (LAC) the fact of long service in employment does not always spare an employee, who committed a gross misconduct, from dismissal Misconduct JA119/14 Barloworld Logistics v Ledwaba N.O. and Others (JA119/14) [2016] ZALAC 17 (11 May 2016) conducting a business without permission no evidence led that employee conducting business using employers time and resources  employee obtaining verbal permission from immediate superior Misconduct: till shortages JA38/15 Woolworths (Pty) Ltd v South African Commercial Catering and Allied Workers Union and Others (JA38/15) [2016] ZALAC 41; (2016) 37 ILJ 2831 (LAC); [2017] 2 BLLR 137 (LAC) (27 July 2016) The arbitrator (incorrectly) found that the dismissal of the employee was substantively unfair on the basis that the sanction of dismissal was too harsh under the circumstances. The arbitrator also found that the employees till takings discrepancy was not the result of any negligence on her part because the appellant could not find irregularities on the transactions of the employee. Misconduct: existence of rule JA45/2015 Dikobe v Mouton N.O. and Others (JA45/2015) [2016] ZALAC 30; [2016] 9 BLLR 902 (LAC); (2016) 37 ILJ 2285 (LAC) (15 June 2016) The vagueness of a rule against possession [19]The defence of the appellant, throughout all the proceedings, was that his possession of the vouchers was with Moloros express permission. The word possession is of course the word that a layman would use to describe the handling of the vouchers. Were the appellant aware of the term detentio, he would probably have denied being in possession and claimed he merely detained the vouchers as agent of Moloro. insubordination and insolence JA83/2015 Sylvania Metals (Pty) Ltd v Mello N.O. and Others (JA83/2015) [2016] ZALAC 52 (22 November 2016) [17]Insubordination in the workplace context generally refers to the disregard of an employer’s authority or lawful and reasonable instructions.[5]It occurs when an employee refuses to accept the authority of a person in a position of authority over him or her and, as such, is misconduct because it assumes a calculated breach by the employee of the obligation to adhere to and comply with the employers lawful authority.[6]It includes a wilful and serious refusal by an employee to adhere to a lawful and reasonable instruction of the employer, as well as conduct which poses a deliberate and serious challenge to the employers authority even where an instruction has not been given.[7] Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 36 ILJ 1511 (L. Insolence: is offensive, disrespectful in speech or behaviour, impudent, cheeky, rude, insulting or contemptuous. While the Court noted that insolence may become insubordination where there is an outright challenge to the employers authority, acts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful On final written warning JA83/2015 Sylvania Metals (Pty) Ltd v Mello N.O. and Others (JA83/2015) [2016] ZALAC 52 (22 November 2016) Transnet Freight Rail v Transnet Bargaining Council and others (2011) 32 ILJ 1766 (LC). An employee on a final warning for the same offence will normally be regarded as irredeemable, and dismissal will be justified if the employee commits a similar offence during the currency of the warning Usually, the presence of a valid final written warning at the time the commission of the same or similar form of misconduct should be properly interpreted as aggravating in nature. The principles of progressive discipline require such a re-offending employee usually to be considered irredeemable I accept that the purpose of the warning is to impress upon the employee seriousness of his actions as well as the possible future consequences which might ensue if he misbehaves again. Misconduct: refusal to perform night work CA16/15 TFD Network Africa (Pty) Ltd v Singh N.O. and Others (CA16/15) [2016] ZALAC 50; [2017] 4 BLLR 377 (LAC); (2017) 38 ILJ 1119 (LAC) (8 November 2016) Where the protective measures are not available to an employee required to perform night work, the employee is entitled to raise the absence of those measure as a defence to a charge of failing to work or disobeying an instruction. Misconduct: failing to disclose record prior to appointment CA2/2015 G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O. and Others (CA2/2015) [2016] ZALAC 55; (2017) 38 ILJ 881 (LAC) (25 November 2016) Third respondent dismissed after 14 year’s service as security guard after it was discovered he failed to disclose his prior criminal convictions for rape and assault when applying for employment Given the serious nature of the misconduct committed, the sanction of dismissal was fair. Appeal upheld with no order as to costs. Misconduct: Absence JR3104/12 National Nuclear Regulator v Commission for Conciliation, Mediation and Arbitration and Others (JR3104/12) [2016] ZALCJHB 177 (11 May 2016) [105] It is clear that an employee who demonstrates a propensity for committing misconduct cannot escape the consequences of his or her conduct simply because a past warning has expired. Disciplinary action under the Labour Relations Act 66 of 1995, as amended, (LRA) is not a rigid process which fails to take into account the various parties interests. National Union of Mineworkers obo Selemela v Northam Platinum Ltd (2013) 34 ILJ 3118 (LAC) at para 38; Gcwensha v CCMA and Others [2006] 3 BLLR 234 (LAC). An employer or commissioner is always entitled to take into account the cumulative effect of previous acts of negligence, inefficiency and/misconduct. To do otherwise would be to subject and employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, failing outside the periods of applicability of final written warnings. The court found further that the final written warning will have added importance if the conduct to which it relates is of the same nature as the conduct the employee is subsequently charged with in the disciplinary enquiry. Misconduct: Conflict of interest JR1172/14 Browns the Diamond Store v Commission for Conciliation, Mediation and Arbitration and Others (JR1172/14) [2016] ZALCJHB 187 (13 May 2016) [14]However, the reference to a possible conflict of interest in Phillips case must be understood in the context in which it is used. It refers to a situation where a person owing a fiduciary duty to another, in this case an employer, actually does act in their own interest in circumstances in which their interest might possibly conflict with that of their principal, but does not disclose the possible conflict of interest to the person to whom the fiduciary duty is owed before embarking on such action, or does so without that persons permission. The breach of the fiduciary duty does not occur because of the mere existence of a possible conflict but how the potentially conflicted individual acts when that situation arises. Phillips v Fieldstone Africa (Pty) Ltd and another 2004(3) SA 459 which an employee accepted an offer of shares in a client of his employer without advising his employer or obtaining its consent, which the court held amounted to him succumbing to the potential conflict of interest between his duty and his self-interest. It was also suggested that the mere possibility of a conflict of interest was sufficient to warrant the employer taking action, on the strength of the authority of that case. In enumerating what might constitute a conflict of interest, the SCA held It extends not only to actual conflicts of interest but also to those which are a real sensible possibility. Misconduct sexual harassment JR1025/2013 Masemola v Commission for Conciliation, Mediation and Arbitration and Others (JR1025/2013) [2016] ZALCJHB 183 (17 May 2016) sexual favour in exchange for the Applicant deleting nude pictures Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 1 BLLR 1 (LAC). Misconduct: leaving his vehicle unattended with a costly consequence to his employer JR2720/13 Freshmark (Pty) Ltd v Matji N.O. and Others (JR2720/13) [2016] ZALCJHB 477 (20 May 2016) the probabilities are overwhelming that the employee simply failed to exercise his supervisory obligations and that the pallet of fresh produce was returned to Centurion as a consequence, at a loss to the applicant. In both instances, there is no evidence on record that serves to exculpate the employee on the basis of the inconsistent application of discipline. Misconduct: Right to privacy JR1022/12 NUMSA and Another v Rafee N.O. and Others (JR1022/12) [2016] ZALCJHB 512; [2017] 2 BLLR 146 (LC) (31 May 2016) failure to delete photos of the company from his mobile phone [13]The applicants rightly contend that in the employment context, the competing interests of employees rights to privacy have to be weighed against the employers right to protect its business interests. Dismissal fair Misconduct: same charge as during disciplinary hearing JR 1099/13 South African Municipal Workers Union and Another v Ngaka Modiri Molema District and Others (JR 1099/13) [2016] ZALCJHB 257; (2016) 37 ILJ 2430 (LC) (7 July 2016) commissioner (not having) license to craft a charge that will justify a dismissal. Misconduct: tested positive for being under the influence of drugs JR232/2013 Modiba v Samancor Eastern Chrome Mine and Others (JR232/2013) [2016] ZALCJHB 275 (22 July 2016) reliability of the equipment used to test the presence of cannabis Commissioner failed to appreciate the incidence of onus in relation to the authenticity of the test and reliability of the equipment Misconduct: failed and/or refused to comply with a lawful instruction J1343/16 Solidarity and Others v South African Broadcasting Corporation (J1343/16) [2016] ZALCJHB 273; 2016 (6) SA 73 (LC); (2016) 37 ILJ 2888 (LC); [2017] 1 BLLR 60 (LC) (26 July 2016) unlawful summary dismissal, dismissals in breach of contractual right to disciplinary procedure and in breach of right to freedom of expression, dismissals void ab initio to dismiss SABC journalists for criticising the Protest Policy and in suspending them, amounts to conduct by SABC management which is plainly in breach of section 16(1) of the Constitution, and it is conduct in respect of which the Labour Court, in the exercise of its concurrent jurisdiction with the High Court under s157(2) of the LRA, can make an appropriate order in terms of s 158(1). Misconduct: FRAUDULENT NON- DISCLOSURE, ALTERNATIVELY, MISREPRESENTATION, FURTHER ALTERNATIVELY FAILURE TO ACT IN THE BEST INTERESTS OF THE EMPLOYER JR2946/2010, J494/13 Industrial Development Corporation of South Africa Limited (IDC) v Roscher and Others (JR2946/2010, J494/13) [2016] ZALCJHB 292 (2 August 2016) Absa Bank Ltd v Naidu and Others [2015] 1 BLLR 1 (LAC) at paras 42-56. [53]   In De Beers Consolidated Mines Ltd, above, the Court further pointed out that [t]he seriousness of dishonesty  ie whether it can be stigmatised as gross or not  depends not only, or even mainly, on the act of dishonesty itself but on the way in which it impacts on the employers business. In the present instance, considering the nature of the appellants business, there can be no doubt, in my view, that Ms Naidus dishonesty severely adversely impacted on the business. [55]   On the issue of breakdown in trust relationship, occasioned by an employee’s dishonest misconduct, this Court (per Davis JA) in Shoprite Checkers (Pty) Ltd v CCMA and others, stated the following: [T]his Court has consistently followed an approach, laid out early in the jurisprudence of the Labour Court in Standard Bank SA Limited v CCMA and others [1998] 6 BLLR 622 (LC) at paragraphs 3841 where Tip AJ said: It was one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it. Temporary employment service JR672/15 Wood Group (South Africa) (Pty) Ltd v Ngobeni N.O. and Another (JR672/15) [2016] ZALCJHB 321 (23 August 2016) Termination of contract: "In line with the Temporary Employment Contract entered into, we are accordingly terminating your services with LBJ Global Recruitment (Pty) Ltd[2] on the same date, to be viewed as completion of contract. In the interim, we will endeavour to secure an alternative assignment for you and will communicate with you should we be successful in this regard. NUMSA v Abancedisi Labour Services [2014] 2 All SA 43 (SCA); [2013] 12 BLLR 1185 (SCA). In that case, a labour brokers client refused the workers entry to the workplace. The labour broker argued that it had not dismissed them. The SCA held that they were dismissed when they were barred from the workplace by the client and that the labour broker had dismissed them as contemplated in s 186(1)(a) of the LRA. insubordination and insolence JR2195/14 SAMWU obo Felicia v Commission for Conciliation, Meditation and Arbitration and Others (JR2195/14) [2016] ZALCJHB 338 (26 August 2016) meeting in which her performance was to be discussed "a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to the employer's authority." Polyoak Packaging (Pty) Ltd v Siquibo NO and Others (unreported) case number 236/2008 As a general principle it may be stated that the breach of rules laid down by an employer or the refusal to obey an employer's lawful and reasonable order is to be viewed in a serious light and may in given circumstances even justify summary dismissal. However, the presence of certain prerequisites is required. In the first place: [a]    it should be evident that an order, which may even be in the form of a warning, must in fact have been given. . . . In the second place; [b]    it is required that the order must be lawful; an employee is therefore not expected to obey an unlawful order such as to work illegal overtime; and thirdly, [c]    the reasonableness of an order should be beyond reproach and will be enquired into: in cases before the court the order or request has sometimes been found to be reasonable and at other times to be unreasonable. In addition, it is required . . . that the refusal to obey must have been serious enough to warrant dismissal. Grogan, in Employment Law, [J Grogan Workplace: Juta (11th edition) at pages 251-255.] states the following The best measure of the gravity of insubordination and/or 'insolence' is the effect it has on the employment relationship. Other things being equal, an isolated refusal to carry out an instruction is less likely to destroy the relationship between the employer and the employee than sustained and deliberate defiance of authority. The latter form of insubordination is well illustrated by Theewaterskloof Municipality v SALGBC (Western Cape Division). The Labour Court held that a senior manager who accepted payment of an allowance well knowing that he was not entitled to it, then offered to repay the amounts in derisory instalments, had deliberately breached the trust relationship. Given the destruction of the employment relationship and his total lack of remorse, the employee could not rely on either the general right to progressive discipline or on his long and previously unblemished service record. The court upheld the employee's dismissal. Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 5 BLLR 484 (LAC) at para 19 The Labour Appeal Court held that [t]he offence of insubordination in the workplace has, in this regard, been described by the courts as a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to an employers' authority and in that regard, the Labour Appeal Court referred to the decision of Commercial Catering and Allied Workers' Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC) at 314H-J. Commercial Catering & Allied Workers Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC "the offence of insubordination is constituted by the following: When the employee refuses to obey a lawful and reasonable command or request and the refusal is wilful and serious (wilful disobedience), or when the employee's conduct poses a deliberate (wilful) and serious challenge to the employer's authority Bringing name into disrepute JR2600/13 Maloka v Commission for Conciliation, Mediation and Arbitration and Others (JR2600/13) [2016] ZALCJHB 343 (31 August 2016) Bringing SARS name into disrepute, conduct he was involved impacted on SARS name and reputation. ..not a requirement for the purposes of the charge in question for the Applicant to have made a public statement or issued a statement about SARSs activities, nor was it necessary for evidence to be led to demonstrate that indeed a conviction resulted from the conduct in question. This narrow interpretation of the charge of bringing a company’s name into disrepute in circumstances where an employee commits misconduct outside of working hours cannot be sustainable in the light of the above authorities and principles set out therein. The Applicants mere conduct in this case, considering the nature of his job and the business of SARS was sufficient for the charge to be sustained. his conduct showed that he intended to involve himself in illegal activities by participating in rhino horn trading...t needs to be added that the conduct of the Applicant, but for the fact that the horn turned out to be that of a cow, bordered on criminality and involved dishonesty and corruption. Such conduct clearly had an impact on the employment relationship, especially in the light of his position as a law enforcement officer. Even more profound in this case was the Applicants dishonesty throughout the arbitration proceedings, with contrived and improbable versions, intended to mislead the Commissioner. Dolo v Commission for Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 905 (LC) at paragraph [19] The applicant contends she committed no wrong against her employer. This is correct: her involvement in the fraudulent scheme did not concern any non-performance of her duties or other act of misconduct in the workplace. However, being a party to such a scheme held implications for her suitability to occupy a position in which she was entrusted to deal with the employers cash when her job required it. The first principle a person who is determining whether or not a dismissal for misconduct is unfair must consider in terms of Item 7(a) of the Code of Good Practice: Dismissal is whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace (emphasis added). What the emphasized portion makes clear, is that misconduct outside the workplace and outside of working hours may have a bearing on an employees continued suitability for employment. In each instance, a multiplicity of factual considerations can determine whether the employees conduct outside the workplace holds implications for their continued suitability for employment or some form of corrective discipline. In Hoechst (PTY) Ltd v Chemical Workers Industrial Union & Another (1993) 14 ILJ 1449 (LAC), Joffe JA (as he then was), held: 1. Where misconduct does not fall within the express terms of a disciplinary code, the misconduct may still be of such a nature that the employer may none the less be entitled to discipline the employee. Likewise the fact that the misconduct complained of occurred away from the work-place would not necessarily preclude the employer from disciplining the employee in respect thereof... In our view the competence of an employer to discipline an employee for misconduct not covered in a disciplinary code depends on a multi-faceted factual enquiry. This enquiry would include but would not be limited to the nature of the misconduct, the nature of the work performed by the employee, the employer's size, the nature and size of the employer's work-force, the position which the employer occupies in the market place and its profile therein, the nature of the work or services performed by the employer, the relationship between the employee and the victim, the impact of the misconduct on the work-force as a whole, as well as on the relationship between employer and employee and the capacity of the employee to perform his job. At the end of the enquiry what would have to be determined is if the employee's misconduct 'had the effect of destroying, or of seriously damaging, the relationship of employer and employee between the parties'. (Authorities omitted) Misconduct: received money from members of the public JR859/2013 Minister of Justice and Constitutional Development v PSA obo Mahlangu and Others (JR859/2013) [2016] ZALCJHB 350 (14 September 2016) to place an employee who was guilty of dishonesty back in a position where honesty and integrity were paramount, would be outrageous and would amount to condoning his misconduct. Misconduct: dishonesty JR999/2014 Arcelormittal South Africa Limited v Pretorius and Others (JR999/2014) [2016] ZALCJHB 351 (14 September 2016) Nedcor Bank Ltd v Frank and others (2002) 23 ILJ 1243 (LAC). Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently.(See Toyota SA Motors (Pty) Ltd v Radebe and others (2000) 21 ILJ 340 (LAC) at 345F-H; R v Brown 1908 TS 21; R v White 1968 (3) SA 556 (RA); Ex parte Bennett 1978 (2) SA 380 (W) at 383H-384C; S v Manqina; S v Madinda 1996 (1) SACR 258 (E) at 260e-h and The Oxford Dictionary.)In the Canadian case of Lynch and Co v United States Fidelity and Guaranty Co [1971] 1 OR 28 (Ont SC) at 37-38, the following was said (per Fraser J):"Dishonest" is normally used to describe an act where there has been some intent to deceive or cheat. To use it to describe acts which are merely reckless, disobedient or foolish is not in accordance with popular usage or the dictionary meaning. ‘Certainly, insofar as the appellant or its customers are concerned, no intention to steal, cheat, lie or act fraudulently is manifest. And what of the intention to conceal the true state of affairs from the management of the airport? That is not covered by the charge. 44]The Court further held that dishonesty implies intention on the part of the employee and negligence cannot give rise to a charge of dishonesty. Failure to allow employee to return to work JS787/14 Smith v Kit kat Group (Pty) Ltd (JS787/14) [2016] ZALCJHB 362; [2016] 12 BLLR 1239 (LC); (2017) 38 ILJ 483 (LC) (23 September 2016) Failing to allow the applicant to return to work, in the circumstances of this matter, is tantamount to termination of employment. [53]In summary, and based on what I have set out above, I have little hesitation in concluding that the conduct of the respondent, considered as a whole, was of the nature that seeks to bring about the termination of the employment relationship, and is certainly a repudiation of the employment contract of the applicant. This conduct includes representing to the applicant that he was welcome to return to work when this was in reality not the case, refusing his tender of work when it was first made, seeking to persuade him to pursue a disability claim, telling him that he is cosmetically unacceptable and his presence traumatizes the other employees, informing him that he unable to do his full work without conducting any process to determine this, and suggesting that he leave whilst ignoring the medical reports that the applicant was fit to work, and finally seeking to negotiate his exit. The applicant was entitled to consider the employment relationship as terminated, which he ultimately did by the time this matter came to trial. Trio Glass t/a The Glass Group v Molapo NO and Others (2013) 34 ILJ 2662 (LC) at para 36. See also Ismail v B & B t/a Harvey World Travel Northcliff (2014) 35 ILJ 696 (LC) at paras 27  28. the Court dealt with a situation where an employee on the evidence was never informed that she had been dismissed, and said:  by definition the existence of a dismissal can be established by conduct. An objective assessment of the evidence must be made in order to establish whether the conduct of the employer is such as to establish a termination of the employment contract, be it with or without notice. Ouwehand v Hout Bay Fishing Industries (2004) 25 ILJ 731 (LC) at para 14 Section 186(1)(a): This formulation would appear to contemplate that the employer party to the contract of employment undertakes an action that leads to the termination. In other words, some initiative undertaken by the employer must be established, which has the consequence of terminating the contract, whether or not the employer has given notice of an intention to do so.' Marneweck v SEESA Ltd (2009) 30 ILJ 2745 (LC) at para 31. as a matter of principle, an employment contract can be regarded as terminated based on the objective construction of the employer's conduct which unequivocally repudiates the contract. Heath v A & N Paneelkloppers (2015) 36 ILJ 1301 (LC) at para 31. [15] Where the employer conducts itself in such a fashion that has the cause of bringing the employment relationship to an end, it must equally be considered to be a dismissal.[16]  the question to answer is whether there were some overt actions by the respondent as employer that were the proximate cause of such termination of employment of the applicant on 1 February 2012. The applicant has the onus to show this. In answering this question, regard must not just be had to what happened on that day, but all the circumstances leading up to the events on that day must also be considered. In short, did the respondent seek to repudiate the employment contract Probation JR1303/2014 Imagex (Pty) Ltd v Krustinsky and Others (JR1303/2014) [2016] ZALCJHB 371 (29 September 2016) Plane Engineering (PTY) Ltd v Ncobo & others (2014) 35 ILJ 1971 (LAC). even though less onerous reasons can be accepted for dismissing a probationary employee, the fairness of such reasons still needs to be tested against stipulations of items 8(1) (a)-(h) of the code of Good Practice. misconduct: reporting late for work JR1303/2014 Imagex (Pty) Ltd v Krustinsky and Others (JR1303/2014) [2016] ZALCJHB 371 (29 September 2016) [12]The sanction of dismissal was unfair because the conduct of the employee persisted for a considerable time reporting late for work, with the applicant not doing anything about it. On its own version the applicant kept giving the applicant verbal counselling regarding the issues of time keeping. If indeed late coming was regarded as a serious offence the applicant ought to have warned the employee about the alleged misconduct and the possible consequences that was likely to follow. If indeed the situation had become unreasonable from the side of the applicant it ought at least to have placed him on terms by issuing a written warning. This is in essence what the Commissioner means when he says the applicant never applied progressive discipline. misconduct: incitement of violence, acting against her employers best interests, conduct unbecoming an official, and a conflict of interest JR241/14 Bokoni Platinum Mines (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR241/14) [2016] ZALCJHB 524 (6 October 2016) Was not as a result of illegal strike. Dismissal fair misconduct: tested positive for using marijuana JR286/15 Diesel Supply and Logistics (Pty) Ltd v Skhosana and Others (JR286/15) [2016] ZALCJHB 525 (14 October 2016) the arbitrators finding that the applicant had failed to call medical expert evidence, I fail to appreciate, in circumstances where the authenticity of the test and its use in the industry was never seriously disputed by the employees representative, how such a finding can be made. To the extent that the arbitrators finding is based on his intervention when he asked Muller why the employer not been sent to a medical facility, that question had as its purpose the ability for medical experts to test for a whole range of drugs. Given that the integrity of the test administered had not been called into question and that the test itself was capable of testing for the presence of a number of other drugs (which was never disputed) there is no basis on which the arbitrator could reasonably rely on make a finding he did. misconduct: grossly negligent: drove well over the speed limit, C420/2015 IMATU obo Cupido v City of Cape Town and Others (C420/2015) [2016] ZALCJHB 421 (2 November 2016) Dismissal fair misconduct: deliberate tripping co-employee J768/15 Minister of Finance v Bredenkamp and Others (J768/15) [2016] ZALCJHB 431 (11 November 2016) this should be regarded as serious misconduct. This was a deliberate assault by a senior on a subordinate, aggravated by the circumstances in which it took place. Misconduct: failed and/or refused to comply with a lawful instruction JR261/13 Ngululu Bulk Carriers (Pty) Limited v SATAWU and Others (JR261/13) [2016] ZALCJHB 440 (29 November 2016) A wilful refusal to carry out a proper assignment for which the employee was employed for Second Respondent's dismissal was fair Misconduct: Negligence with aggravating circumstances JR1907/14 Glencore Operations South Africa (Pty) Ltd v NUM obo Mtshwene and Others (JR1907/14) [2016] ZALCJHB 567 (1 December 2016) Negligence with aggravating circumstances in that you failed to ensure the proper installation of the refractory lining, resulting in the company losing substantially on finance and production...employee is by far the senior employee between the two and was ultimately responsible and liable for the work performed by his subordinates. Misconduct: defied an instruction by his supervisor to take his lunchbreak at a particular time JR438/13 Bader SA (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR438/13) [2016] ZALCJHB 550 (20 December 2016) [16]As I have already said, where an element of dishonesty is attached to a particular act of misconduct (in this case insubordination), it goes to the heart of the employment relationship. The question then in these circumstances is whether the trust element essential for any employment contract to endure, has been irretrievably breached. misconduct: act of defiance amounting to a refusal to obey an instruction JR2684/13 Sibanye Gold Ltd (Driefontein Mine) v Commission for Conciliation, Mediation and Arbitration and Others (JR2684/13) [2017] ZALCJHB 191 (1 March 2017) respondents dismissal was substantively and procedurally fair. misconduct: contravention of the National Road Traffic Act 93 of 1996 by exceeding the speed limit JR557/14 Wadeville Secure (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR557/14) [2017] ZALCJHB 85 (3 March 2017) matter is remitted to the first respondent to be heard de novo misconduct: refused to carry out those instructions JR759/12 Mphahlele v Coreslab (JR759/12) [2017] ZALCJHB 130 (12 April 2017) was at the time sitting with a final written warning for a similar misconduct...order that the dismissal was fair. misconduct: they went to the house of a fellow employee, intimidated him to join the strike JR696/15 Bidvest Food Services (Pty) Ltd v CCMA and Others (JR696/15) [2017] ZALCJHB 210 (31 May 2017) dismissal of the Third Respondents was substantively and procedurally fair. proof JS318/13 National Union of Mine Workers obo Shayi and Others v Sishen Iron Ore Company (Pty) Ltd (JS318/13) [2017] ZALCJHB 271 (30 June 2017) [18] It is trite that in dismissal proceedings, the onus rests with the employees to establish and prove that they were dismissed. On the other hand, the employer has to demonstrate and/or show that the dismissal was fair. In general, this means that the Applicants must prove that the Respondent has taken some initiative to terminate the contract, and that the Respondents action has caused the termination. Ouwehand v Hout Bay Fishing Industries [2004] 8 BLLR 815 (LC); See also CWIU v Johnson and Johnson (Pty) Ltd [1997] 9 BLLR 1186 (LC) misconduct: dishonesty JR1671/16 Kellogg Company South Africa Proprietary Limited v Food and Allied Workers Union obo Khumalo and Others (JR1671/16) [2017] ZALCJHB 268 (6 July 2017) The Constitutional Court in the matter of Sidumo & another v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC). In the respect of the absence of dishonesty, the Labour Appeal Court found that the Commissioners statement in this regard baffling. In my view, the Commissioner cannot be faulted for considering the absence of dishonesty a relevant fact in relation to the misconduct. However, the Commissioner was wrong to conclude that relationship of trust may have not been breached. Mr Sidumo was employed to protect the mine valuable property which he did not do. However, this is not the end of the enquiry. It is still necessary to weigh all the relevant factors together in light of the seriousness of the breach. The absence of dishonesty is a significant factor in favour of the application of progressive discipline rather than dismissal.[11] (Own emphasis) misconduct: dishonesty DA08/16 Workforce Group v McLintock and Others (DA08/16) [2017] ZALCJHB 272 (1 August 2017) Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (2008) 29 ILJ 2581 (LAC); See also Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others 2009 (3) SA 493 (SCA); (2009) 30 ILJ 829 (SCA); Absa Bank Ltd v Naidu & others (2015) 36 ILJ 602 (LAC); Miyambo v Commission for Conciliation, Mediation & Arbitration & others (2010) 31 ILJ 2031 (LAC) Standard Bank of SA Ltd v CCMA and Others (1998) 19 ILJ 903 (LC) at 913 para 38. It is one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it. misconduct: insubordination JR967/14 Cashbuild Thohoyandou v Mannde NO and Others (JR967/14) [2017] ZALCJHB 284 (8 August 2017) Palluci Home Depot (Pty) Ltd v Herchowitz and Others [2015] 36 ILJ 1511 (LAC)at para 22 Even so, it is however trite that acts of insolence and insubordination do not automatically justify dismissal unless they are serious and wilful misconduct: misrepresenting qualifications in CV JR1289/14 LTE Consulting (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR1289/14) [2017] ZALCJHB 291; [2017] 12 BLLR 1259 (LC) ; (2017) 38 ILJ 2787 (LC) (8 August 2017) Employee misrepresenting qualifications in CV  commissioners finding that employees dismissal substantively unfair unreasonable  award set aside on review  employees dismissal determined as having been fair Department of Home Affairs & another v Ndlovu & others (2014) 35 ILJ 3340 (LAC) In any event, accepting that such a qualification was not a requirement for the job, this does not detract from the employees dishonesty in misrepresenting that he was a chartered accountant. G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO & others(2017) 38ILJ881 (LAC) [30]  The false misrepresentation made by the third respondent was blatantly dishonest in circumstances in which the appellant is entitled as an operational imperative to rely on honesty and full disclosure by its potential employees. It induced employment and when discovered was met with an absence of remorse on the part of the third respondent. The fact that a lengthy period had elapsed since the misrepresentation, during which time the third respondent had rendered long service without disciplinary infraction, while a relevant consideration, does not compel a different result. This is so in that the fact that dishonesty has been concealed for an extended period does not in itself negate the seriousness of the misconduct or justify its different treatment. To find differently would send the wrong message. misconduct: fighting JR1756/2015 Arcelor Mittal SA Ltd v Metal and Engineering Industries Bargaining Council and Others (JR1756/2015) [2017] ZALCJHB 295 (11 August 2017) Ultimately, the evidence clearly shows that the third respondent did everything in his powers to evade a fight. The second respondent seems to have correctly understood the fundament rules of evidence including the principles governing mitigation and probabilities. misconduct: insubordination JS752/13 Rahn v Cheil South Africa (Pty) Ltd (JS752/13) [2017] ZALCJHB 319 (5 September 2017) Palluci Home Depot (Pty) Ltd v Herchowitz and Others [2015] 36 ILJ 1511 (LAC) at para 22 . . . [A]cts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful. The failure by an employee to comply with a reasonable and lawful instruction of an employer or an employee’s challenge to or defiance of the authority of the employer may justify dismissal, provided it is wilful (deliberate) and serious. Likewise, insolent or disrespectful conduct towards an employer will only justify dismissal if it is wilful and serious. The sanction of dismissal should be reserved for instances of gross insolence and gross insubordination as respect and obedience are implied duties of an employee under contract law, and any repudiation thereof will constitute a fundamental and calculated breach by the employee to obey and respect the employers lawful authority over him or her. misconduct: failed to follow safety rules by allowing two employees to put their heads into a class B (high risk) vessel, potentially containing lethal gases, JR1900/14 Sasol Synfuels v NBCCI and Others (JR1900/14) [2017] ZALCJHB 356 (20 September 2017) [14] ...The only reasonable conclusion to be reached on the evidence is that the third respondent committed the act of misconduct with which he was charged, and that in terms of the applicable policy, dismissal was the appropriate penalty. The third respondent contravened a safety code and endangered the lives of two contractors. The award accordingly stands to be reviewed and set aside. misconduct: failed to immediately report it to the safety manager JR2355/14 National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2355/14) [2017] ZALCJHB 359 (21 September 2017) [22]In considering whether or not dismissal was an appropriate sanction, the arbitrator considered that the rule was introduced as a result of numerous fatalities at the mine and that it was an extraordinary measure taken by the CEO in an attempt to deal with a difficult situation and to prevent the loss of further lives. He found that a tip area that was not barricaded was dangerous as employees could fall into the opening and had the CEO known of the opening of the tip area, he could have intervened immediately and ordered that the area be secured without further delay. The employee was a safety officer and in light of the fatalities at the workplace, he did not act in the best interests of the employer at the time. The arbitrator accepted that the trust relationship has broken down and cannot be resuscitated. Strike: no hearing JA36/16 SACCAWU obo Mokebe and Others v Pick 'n Pay Retailers (JA36/16) [2017] ZALCJHB 345 (26 September 2017) [52] The union, in the current matter, had obtained a certificate of outcome in terms of s64(1)(a) of the LRA and it had issued a strike notice in terms of s64(1)(b) thereof. This, in my view, rendered it fair and appropriate for the company to hold a disciplinary hearing where individual participation was allowed for primarily two reasons. The first was to ascertain each employees understanding of what the correct time of the commencement of the strike was. And the second was to establish whether he or she was knowingly complicit in the purported scheme to cause damage to the company. As it turns out, the company failed to adhere to the process that it specifically undertook to follow in the disciplinary notice which it issued to employees. This rendered each of the employees dismissals procedurally unfair. Modise and Others v Steves Spar Blackheath [2000] 5 BLLR 496 (LAC) The last observation relates to the conclusion that it would have been a pointless and an unnecessary exercise for the employer in G.M. Vincent to afford the strikers a hearing. My difficulty with this conclusion is that this was a case where the union had taken various steps prescribed by the old Act for making a strike legal... Indeed, it appears from the judgement of the industrial court in the same matter that, when the matter was argued in the industrial court, it was the unions case that it (and, a fortiori, the strikers) believed that the strike was legal (see NUMSA V G.M. Vincent Metal Sections (Pty) Ltd (1993) 14 ILJ 1318 (IC) at 1320J-1321A)... In those circumstances I cannot, with respect, see how it could be said that a hearing would have been a pointless and an unnecessary exercise in such a case. The Court went on to hold that:[10] The need for the respondent to hear the appellants was arguably even stronger in this case because this was a case where, to the knowledge of the respondent, certain steps had been taken by the union which were obviously aimed at making the strike a legal strike. The respondent should have realised that, because such attempts had been made, the strikers could well have been under the impression that the strike was legal and, that, for that reason, they might have believed that they were entitled to go on strike and even to ignore any calls by the respondent that they return to work. Although the appellants strike was illegal, they should not, in my judgement, be treated in the same way as strikers who simply flouted the Act and made no attempts whatsoever to comply with it. They deserve some sympathy. Workers must be encouraged to comply with the law. To treat them as if they fall into the same category as strikers who go on a strike without any attempt at all to make their strike legal would not be right. It would not encourage unions and workers to make whatever attempts they can to ensure that their strikes are legal. misconduct: intoxicated on duty JR790/15 Van der Merwe v Shiba and Others (JR790/15) [2017] ZALCJHB 354 (27 September 2017) Commissioners may find sanction harsher than the one prescribed in the disciplinary code appropriate when there is evidence justifying deviation from the prescribed sanction. Absent evidence, the commissioners decision that the harsher sanction is appropriate is unreasonable and defective [7] It is common cause that disciplinary codes are guidelines and not cast in stone. It is further common cause that the third respondent differentiates between dishonesty and gross dishonesty. The former is punishable by a written warning and the latter by dismissal. It is further common cause that the applicant was dismissed for dishonesty. The commissioner was therefore required to determine whether the third respondents conduct of dismissing the applicant for dishonesty was fair. The applicant made himself guilty of dishonesty. The third respondent conceded that aggravating circumstances should exist before a sanction harsher than the one prescribed in its code could be justified. It was submitted on behalf of the third respondent that aggravating circumstances could be inferred from evidence. Absent aggravating circumstances, the decision that the dishonesty led to an irretrievable breakdown of the employment relationship between the parties is unreasonable. The commissioner erred in finding the sanction of dismissal appropriate. His error had the effect of rendering his decision unreasonable. The application must, in the circumstances, succeed. misconduct: failed and or refused to undergo a Medical Examination JR2354/15 Steval Engineering (Pty) Ltd v Mphaphuli N.O, and Others (JR2354/15) [2017] ZALCJHB 358 (27 September 2017) The commissioner found that the charge was that the applicant did not comply with the respondents instruction when in fact the opposite was true. He concluded that the charge had no basis in law. He added that even if the third respondent had committed the misconduct, the sanction of dismissal would have been inappropriate as the prescribed penalty in terms of the Site Specific Agreement was a final written warning. He found the dismissal substantively unfair. In Pharmaco Distribution (Pty) Ltd v Lize Elizabeth Weideman[3] it was held that the consent to medical examination in a contract of employment does not constitute justification as contemplated in section 7 (1) of the EEA. The applicant did not establish that the award falls outside the bounds of reasonableness. misconduct: negligence JR929/15 Netshisaulu v Commission for Conciliation, Mediation and Arbitration and Others (JR929/15) [2017] ZALCJHB 366 (28 September 2017) commissioner misconstruing misconduct as gross negligence and upholding sanction of dismissal when employee guilty of ordinary negligence  award reviewed and set aside and substituted with an order that dismissal unfair and employee reinstated on a written warning [33] But in order for this to warrant dismissal, it would have to be determined that the applicant was grossly negligent, because negligence per se does not warrant dismissal[9] (just like insubordination per se and insolence does not[10]). In argument, Mr Ramdaw (who appeared for Eskom) submitted that ordinary negligence warrants dismissal, and undertook to provide me with authorities in support of this proposition. Having studied the list of authorities subsequently submitted by him, I am fortified in my view that only gross (or grave) negligence warrants dismissal. Transnet Ltd t/a Portnet v Owners of The MV Stella Tingas and Another: MV Stella Tingas 2003 (2) SA 473 (SCA) at para 7. It follows, I think, that to qualify as gross negligence the conduct in question  must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care. If something less were required, the distinction between ordinary and gross negligence would lose its validity. Grogan Dismissal (2nd ed) at 246. To warrant dismissal at first instance, negligence by an employee must be gross. Gross negligence may be said to have occurred if the employee is persistently negligent, or if the act of omission under consideration is particularly serious in itself. While in civil law the term gross negligence has a technical meaning, in employment law it can be taken to mean negligence that is particularly inexcusable. incapacity: ill health JR1524/2015 Exarro Coal (Pty) Ltd t.a Grootgeluk Coal Mine v Maduma and Others (JR1524/2015) [2017] ZALCJHB 348; (2017) 38 ILJ 2531 (LC) (29 September 2017) incapacity  ill health  cause and nature of lung disease undetermined at time of dismissal  failure to determine same affected substantive and procedural fairness of dismissal despite employees inability to perform his current occupation at the time [11] The arbitrator found that the employer had conceded in the arbitration that even though a post of a buyer was at a higher level (Maduma was employed at level P4 and the position of a buyer was level A3 which was one level higher), Maduma had previously acted in such a position (when he was working for another associated business unit) Maduma contended that he had never been made aware of vacancies available at the employer during the incapacity meetings. However, he believed he could perform the duties of a team assistant (a clerical post situated in the warehouse on the same post level occupied by Maduma at the time) or those of a receiving clerk. He saw no reason why an arrangement could not have been made to transfer him to an associated business unit of the Exarro Company in the same way that he had previously been transferred from another associated company to the applicant. [16] In dealing with the procedural fairness of the dismissal the arbitrator found, in the absence of obtaining a final medical report, that the incapacity meetings convened by the employer were meaningless and it was merely going through the motions of conducting a proper procedure. As such, the employer had not complied with the code on incapacity hearings which provides that the employees prognosis and the extent to which the employee is capable of performing work should be discussed before dismissal is considered. Consequently, the arbitrator found the dismissal was also procedurally unfair. General Motors (Pty) Ltd v National Union of Metalworkers of SA on behalf of Ruiters (2015) 36 ILJ 1493 (LAC) [34]... In IMATU obo Strydom v Witzenberg Municipality & others, this court (per Molemela AJA, as she then was) stated: [7] I must mention that I have no doubt in my mind that permanent incapacity arising from ill-health or injury is recognized as a legitimate reason for terminating an employment relationship and thus an employer is not obliged to retain an employee who is permanently incapacitated if such employee's working circumstances or duties cannot be adapted. A dismissal would under such circumstances be fair, provided that it was predicated on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal. [8] The aforementioned obligations of the employer as set out in items 10 and 11 of schedule 8 to the LRA are interrelated with similar obligations in the Employment Equity Act 55 of 1998. In their work Employment Equity Law (2001) 7-3 to 7-4, J L Pretorius et al submit that the duty of reasonable accommodation of employees by employers is not confined to the Employment Equity Act but "is a duty that is implied in the concept of unfair discrimination in a general sense" and "is one of the judicial and legislative tools for realising substantive equality". I agree with this submission. Surely non-compliance with such an important constitutional imperative would not only impact on procedural fairness but on the substantive fairness of the dismissal as well? [9] I am of the view that the provisions of items 10 and 11 are inextricably tied and thus non-compliance therewith would render a dismissal both procedurally and substantively unfair.' [2] misconduct: gross negligence JR2224/15 Zitha v Commission for Conciliation, Mediation and Arbitration and Others (JR2224/15) [2017] ZALCJHB 350 (3 October 2017) gross negligence for failing to verify that merchandise properly returned before authorising refund [13]Once it is accepted that the employee was given on-the-job training (or that the commissioners finding to that effect was reasonable), then it seems to me that a finding (implicitly made by the commissioner) that the employee was grossly negligent on 21 February 2015 is also not unreasonable. In effect, the employee was guilty of a dereliction of her duties, such as to qualify as gross negligence. on the basis of supervening impossibility of performance JR664/15 Swissport SA (Pty) Ltd v Seanego and Others (JR664/15) [2017] ZALCJHB 371 (10 October 2017) 1. The award of the Fourth Respondent under case number GAEK9038-14 is reviewed and set aside and replaced with an order that the dismissal of the First and Second Respondents was for a fair reason and in compliance with a fair procedure. FAWU obo Meyer v Rainbow Chickens [2003] 2 BALR 140 (CCMA) it was held that the dismissal of a chicken slaughterer who could not perform his duties after his accreditation to slaughter was withdrawn by the Muslim Judicial Council was justified SA Private Security Workers Union on behalf of Nomavila and Bosasa Operations (Pty) Ltd (2016) 37 ILJ 2172 (CCMA) [27] I am satisfied that the matter before me involves incapacity through a permanent impossibility of performance as a result of a supervening factor such factor not being caused or created by either the employee or the employer. 1. The award of the Fourth Respondent under case number GAEK9038-14 is reviewed and set aside and replaced with an order that the dismissal of the First and Second Respondents was for a fair reason and in compliance with a fair procedure. Making a secret profit at the expense of the employer JR810/15 NTM obo Tunyiswa v Commission for Conciliation, Mediation and Arbitration and Others (JR810/15) [2017] ZALCJHB 374 (10 October 2017) The South African Law of Evidence Zeffertt and Paizes 2nd Edition at p 48 [13] The Second Respondent was enjoined to apply the civil standard of proof to the conflicting versions by considering the force, strength and weight of the evidence. Where the quantum of proof requires a preponderance or balance of probability, it means that the probability of the truth of a particular averment is measured or balanced against the probability of it being untrue. [14] The evidence was overwhelmingly in favour of the Third Respondents case that the Applicant was guilty of lending money to Magaboya at an exorbitant interest rate. misconduct: failed to communicate your intended absence JR993/14 UTI Pharma v GIWUSA obo Luvatsha and Others Whitcher (JR993/14) [2017] ZALCJHB 378 (16 October 2017) [21] The next issue is whether the dismissal of the first respondents was fair. [22] The applicant submitted that the first respondents were on final written warnings at the time of the offence. It however failed to establish with reference to the record of evidence that the warnings were for a similar offence. The warnings thus have no bearing on whether the dismissal was fair. [23] In my view, considering the first respondents did attempt to comply with a written rule, it is arguable that they should have received a severe sanction short of dismissal. misconduct: assault: Self-defence JR52/15 JDG Trading Pty Ltd t/a Barnetts v Mthukwane N.O. and Others (JR52/15) [2017] ZALCJHB 504 (25 October 2017) The Third Respondent assaulted a member of public in the Applicants shop. The Second Respondent found that the Third Respondent acted in self-defence. The award set aside as the Second Respondent misapplied the principle of self-defence. However, Self-Defence can still be successfully pleaded in the employment context and should not be equated with a brawl. [23] I disagree. Self-defence once proven constitutes a basis of exonerating an employee at the work place. It is a complete defence. Such a defence is still applicable in our labour jurisprudence. Exonerating an employee on self-defence but continue finding him guilty for being involved of a brawl negates the very protection of self-defence available to an attacked employee. Regard should be had that if the defence could have been avoided, then such would no longer constitute self-defence but an attack. The requirements of self-defence are trite. I intend not dissect the rest of the requirements that must be proven for self-defence to be sustainable. [24] In this case I deliberately started the focus on whether or not the Third Respondent exceeded the bounds of self-defence. Obviously to start at this level means I have given, only for purposes of this argument, a benefit to the Third Respondent that Cynthia started the fight. It will come to the fore somewhere in this judgment that such a benefit was also quite generous. [25] Self-defence can be exceeded and it is on this aspect that I need to find out if the commissioner properly dealt with. It is trite law that where a defender uses more force that is reasonably necessary to repel an attack, the defender would be guilty of assault on the attacker and the defender would not be able to rely on self-defence Rustenburg Platinum Mines Limited v Mwachanda JR 2283/09, Delivered 10 April 2014 (Wilken AJ) misconduct: driving at high speed JR2512/13 Lekoba v Smollan Cape (Pty) Ltd and Others (JR2512/13) [2017] ZALCJHB 453 (5 November 2017) report generated for 26 June 2013, the vehicle in question was driven at a top speed of 202km/h. Grant-Olivier under extensive cross-examination by Lekoba also explained how the system worked, how data and speed was recorded, and how the devices operated separately from odometers in the vehicle. She testified that the odometer was not relevant for the purposes of speed reading, as the information on the device was generated from the satellite GPS. Dismissal fair. misconduct: fraudulent conducts relating to leave applications JR1090/2015 NUM obo Namane v Commission for Conciliation, Mediation and Arbitration and Others (JR1090/2015) [2017] ZALCJHB 455 (6 November 2017) It is further my determination that the originality of the forms should not have been a determining factor whether the applicant has indeed committed misconduct or not. In fact, in terms of the evidence led, it is clear that the leave forms were requested from a number of employees after it became apparent that the system did not balance as far as leaves are concerned. It is therefore unfair to limit his determination to the applicant when the applicant was not the only employee who had submitted copies of the leave forms. misconduct: crib notes on her desk under her examination pad JR435/15 Pick 'n Pay Retailers (Pty) Ltd v Letsoalo (JR435/15) [2017] ZALCJHB 445 (20 November 2017) Independent Newspapers (Pty) Ltd v Media Workers Union SA, on behalf of McKay and others (2013) 34 ILJ 143 (LC). This court, has held on numerous occasions that in the face of dishonesty by an employee, there is very little chance of the trust relationship being rebuilt. Dismissal is general seen as a fair sanction in those circumstances. The arbitration in this case did not consider that aspect of the case before him. That failure makes his finding on sanction so unreasonable that no other arbitrator could have reached the same conclusion. In those circumstances the award must be reviewed and set aside. [37] The employers decision to dismiss was fair, having regard to the importance of the rule, and all the other factors. And more specifically, the importance of the trust relationship with regard to a person that works in the receiving department of a retail organisation, and this evidence was not disputed by the applicant. incapacity: ill health JR534/12 Paraxel International (Pty) Ltd v Chakane N.O. and Others (JR534/12) [2017] ZALCJHB 435; (2018) 39 ILJ 644 (LC) (21 November 2017) Item 10 and 11 Schedule 8 to the Labour Relations Act Standard Bank of South Africa v Commission for Conciliation, Mediation and Arbitration and Others [2007] ZALC 98; [2008] 4 BLLR 356 (LC); (2008) 29 ILJ 1239 at paras 70 -76. an enquiry to justify an incapacity dismissal may take a few days or years, depending mainly on the prognosis for the employees recovery, whether any adjustments work and whether accommodating the employee becomes an unjustified hardship for the employer. MTN Service Provider (Pty) Ltd v Matji NO and Others [2007] ZALC 40 at paras 14 15. It appears from all the evidence that the applicants decision to dismiss her was based not so much on her incapacity as her long and persistent periods of absence from work due to ill-health. That is why the applicant insisted that the enquiry before the first respondent should have been formulated broader than it was to make reference to the habitual and persistent absenteeism of the third respondent. That is not the test. The test is whether the third respondent was at the time of dismissal capable of rendering her services to the applicant. She was never given a chance to prove that she was. I am thus satisfied that the first respondent asked and answered the correct question. As regards the second issue, there was no evidence before the first respondent that the third respondent had any say in the applicants consideration of alternative positions of a less stressful hue. Whether or not such positions indeed existed is a separate enquiry. [29] These principles are trite. By now it is reasonable to expect that employers clearly understand the obligations in terms of Items 10 and 11 of the Code. Even though an employer may not be obliged to retain an employee who is not productive, fairness requires that a proper assessment be made of whether that situation has been reached before the employer resorts to dismissal.[12] Such an assessment cannot be undertaken in an arbitrary manner and without properly consulting the employee on possible alternatives.[13] AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC) [35] ...the court held that there should be a distinction between dismissal for persistent but intermittent absence for ill health and dismissal for prolonged absence owing to long-term illness. In that matter, the employee was dismissed for persistent but intermittent absence for ill health. The court stated that a persistent but intermittent absence for ill health should be treated as analogous to a disciplinary matter capable of being regarded as a dismissal for misconduct as opposed to incapacity. The procedure followed by the employer was found to be fair as it had given the employee warnings to improve his attendance at work; it had given him the opportunity to make representations; it had investigated his claim that his working conditions were the cause of his illness and found that that claim had no substance; and, finally when there was no adequate improvement in the employees attendance record, it had been justified in treating the persistent absences as a sufficient reason for dismissing him. misconduct: breached the Mine Health and Safety Code JR2265/14 Exxaro Coal Mpumalanga (Pty) Ltd Matla Coal v Commission for Conciliation, Mediation and Arbitration and Others (JR2265/14) [2017] ZALCJHB 447 (1 December 2017) The Applicant argues that Venters evidence, by virtue of his position as chief safety representative, should be accepted. poor performances JA48/15 Damelin (Pty) Ltd v Solidarity obo Parkinson and Others (JA48/15) [2017] ZALAC 6; (2017) 38 ILJ 872 (LAC); [2017] 7 BLLR 672 (LAC) (10 January 2017) employee dismissed for failing to meet stipulated target court finding that period to meet target, after a warning, was too short or that target was incapable of being achieved. Appeal dismissed with costs; period of some 27 days within which to achieve the reduced target set in that letter, given all that preceded it and taking into account that it was not achieved even with assistance afforded by Damelin head office goes to show that either the period was too short or that the target was incapable of being achieved. Palace Engineering (Pty) Ltd v Ngcobo and Others (2014) 35 ILJ 1971 (LAC). Although a senior employee is indeed expected to be able to assess whether he is performing according to standard and accordingly does not need the degree of regulation or training that lower skilled employees require in order to perform their functions, 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. misconduct: desertion JA19/2015 IDWU obo Linda and Others v Super Group and Others (JA19/2015) [2017] ZALAC 17; (2017) 38 ILJ 1292 (LAC); [2017] 10 BLLR 969 (LAC) (28 February 2017) [37] Accordingly, despite the employees having been guilty of desertion, and despite the serious consequences for the business credibility of the employer, the sanction of dismissal was inappropriate. Allowing due weight to the effect of their misconduct on the business credibility of the employer, a final written warning would be proportionate to their delinquency. If there had been no other opportunity to be placed, as appears to be the case, the employees would have faced retrenchment. pornography count DA6/2015 Sasol Nitro v National Bargaining Council for the Chemical Industry and Others (DA6/2015) [2017] ZALAC 22; [2017] 9 BLLR 883 (LAC); (2017) 38 ILJ 2322 (LAC) (3 May 2017) [25] The pornography count looms large. Yet the charge, which draws on the text of the disciplinary code paragraph 6.5(c), in my view, despite the way it was relied upon in the proceedings, seems not obviously to be an injunction that covers the keeping of pornography on the laptop. Paragraph 6.5 (l) of the code deals with indecency and accepted community norms and might have been a closer match, but Reddy was not charged with that. Still less was he charged under paragraph 6.5 (n) of the code, which concerns itself with the reputation of Nitro being tarnished. Viewing pornography per se is not a criminal act, unless, of course, it is child pornography, an accusation not made in this case. deplorable as it may be, and moreover, no evidence exists to prove he viewed it instead of doing his job. What was left of the charge, was in, truth, as alluded to above, no more than abusing the laptop for private purposes. racial remarks towards a fellow employee by referring to him as swartman JA45/16 SAEWA obo Bester v Rustenburg Platinum Mine and Another (JA45/16) [2017] ZALAC 23; (2017) 38 ILJ 1779 (LAC); [2017] 8 BLLR 764 (LAC) (3 May 2017) Employer bore the evidentiary burden in the arbitration proceedings to prove that the language used was objectively derogatory. The test is an objective one - the court must examine the entire context in which the misconduct is alleged to have occurred and decide on a balance of probabilities whether the employee is guilty of such conduct and whether the employer has discharged the onus of proof - Once that is established on the evidence, the burden of proof shifts to the employee to prove the existence of a ground of justification and that the derogatory or racist remark was not made with the intent to demean. Evidence shows that the employee had no reason to denigrate his fellow employee as he did have a need to identify the other employee - a person whose name, rank and division was unknown to him - and he used race as a descriptor in doing so. The employee was charged with making a racial remark by referring to a fellow employee as a swartman when requesting that he moved his vehicle. There is no conceivable reason why race might justifiably have served as an identifier. Modikwa Mining Personnel Services v Commission for Conciliation Mediation and Arbitration and Others (2013) 34 ILJ 373 (LC). What the Modikwa Mining judgment (and many others) demonstrate is that despite the formal dismantling of institutional apartheid, issues of race and racism remain prevalent in South African workplaces. The use of racial identifiers plays an obvious role in the perpetuation of negative stereotypes. The concept of race, as a social construct, continues to be imbued with ideological baggage and can serve the purpose of subjugation, where particular race groups continue to be viewed as other. Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others [2002] 6 BLLR 493 (LAC) at para 38, South African Revenue Services v Kruger [2017] 1 BLLR 8 (CC). [15] It is close on two decades since the dismantling of the apartheid regime, yet racism remains a key challenge to our democracy. Racism is particularly pervasive in the workplace, where concerned employers have adopted a zero-tolerance approach to racist conduct and the use of racial expressions or epithets which are derogatory by making such misconduct a dismissible offence. Our courts have correspondingly dealt with acts of racism, and the use of racist language in particular, very firmly visiting upon such conduct the sanction of dismissal. misconduct: gross negligence JA16/16 South African Medical Association obo Pietz v Department of Health - Gauteng and Others (JA16/16) [2017] ZALAC 25; [2017] 9 BLLR 923 (LAC); (2017) 38 ILJ 2297 (LAC) (4 May 2017) grossly negligent and had acted in a reckless and uncaring manner with regard to the patients; the respondent (the department) did not follow the proper procedure the applicant was given an opportunity to explain his actions to the respondent in a letter dated the 30th of November 2009 which he failed to do. Substantively fair dismissal misconduct: racist words CA6/2016 South African Breweries (Pty) Ltd v Hansen and Others (CA6/2016) [2017] ZALAC 29; (2017) 38 ILJ 1766 (LAC); [2017] 9 BLLR 892 (LAC) (25 May 2017) "Julle k****s is almal donnerse ewe onnosel Matter resolves around the credibility finding on the credibility of the various factual witnesses; their reliability; and the probabilities However, where the word kaffir is used, as is the case here, its derogatory connotation is so blatant as to be taken as established. It bears repetition, in this regard, that being called a kaffir is one of the worst insults in the South African context.[13] However, the employer will still bear the onus to prove that the employee uttered the derogatory word/s. misconduct: gross dishonesty for activating the in-contact service SMS notification on the company’s credit card without informing the employer and also to divert all company SMS notification to his cell phone JA107/2015 Moen v Qube Systems Proprietary Limited and Others (JA107/2015) [2017] ZALAC 31; [2017] 11 BLLR 1096 (LAC); (2017) 38 ILJ 2712 (LAC) (31 May 2017) [27] In light of the finding that Brassey AJs order stands to be set aside on the basis that the learned judge applied the incorrect test and that the decision of the arbitrator is not one of which it can be said that a reasonable arbitrator could not have reached on the material placed before him. [26] Viewed in its totally, the evidence does reveal that the appellant did not notify anyone at first respondent, in particular, Mr Dyson, that he was receiving information about first respondents bank account or that he took steps to rectify the position. But alone this is insufficient to conclude, on the evidence that was placed before the Commissioner, that the result reached, namely that on the charges brought by first respondent, the dismissal of appellant was unreasonable in terms of the proper test for review which must be applied. First respondent is to pay the appellant compensation in the amount R936 000.00 trust DA08/16 Workforce Group v McLintock and Others (DA08/16) [2017] ZALAC 49; (2017) 38 ILJ 2517 (LAC) (1 August 2017) Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (2008) 29 ILJ 2581 (LAC); See also Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others 2009 (3) SA 493 (SCA); (2009) 30 ILJ 829 (SCA); Absa Bank Ltd v Naidu & others (2015) 36 ILJ 602 (LAC); Miyambo v Commission for Conciliation, Mediation & Arbitration & others (2010) 31 ILJ 2031 (LAC); Standard Bank of SA Ltd v CCMA and Others (1998) 19 ILJ 903 (LC) at 913 para 38. It is one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it. nepotism PA8/16 Fort v COEGA Development Corporation (Pty) Ltd and Others (PA8/16) [2017] ZALAC 50 (17 August 2017) on account of her conflict of interest/unethical conduct (nepotism) and influencing the recruitment process - substantively unfair. [97] In Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others[15] this Court restated the consistently adopted approach, laid down in the jurisprudence of the Labour Court in Standard Bank SA Ltd v CCMA & others[16] to the effect that it is one of the fundamentals of the employment relationship that the employer should be able to place trust in their employees to discharge their responsibilities dutifully. A breach of this trust in the form of conduct involving dishonesty, as in this case, is one that goes to the heart of the employment relationship and is destructive of it. The sanction of dismissal must be seen as a sensible operational response to risk management in the particular enterprise.[17]Nepotism has a damaging effect on the positive corporate culture and is a potential threat to the morale of other employees. I am satisfied that dismissal is the appropriate sanction in the circumstances of this case. misconduct: reckless and/or negligent driving that resulted in substantial loss to the employer JA53/16 Grindrod Logistics (Pty) Ltd v SATAWU obo Kgwele and Others (JA53/16) [2017] ZALAC 60; (2018) 39 ILJ 144 (LAC) (18 October 2017) Held that the employer is required to apply the penalty of dismissal consistently in a precedent-setting system for essentially similar misdemeanours as employees who were sanctioned in the past as the misconduct under consideration. Although the employee contended that the employees faced with same offence were not dismissed, the employer failed to adduce any evidence demonstrating that those employees personal circumstances differed significantly from those of the employee. Employees dismissal substantively unfair. Consequently, the Labour Courts judgment upheld albeit for different reasons appeal dismissed. (Incomplete)

Labour Law cases decided in the South African Courts (Highlights and updated 6 1997 to 6 2025 [Copyright: Marius Scheepers/15.9.1]) Collective Bargaining and Industrial Action (Strike , Lock-out, Essential Service): Collective bargaining Trade Union lost its majority membership In the absence of a collective agreement regulating consultation in the event of retrenchment, the Respondent was in my view obliged to consult with the applicant. D102/09 NUMSA v Aunde South Africa (Pty) Limited Union Deregistered Could recruit and represent members; No representation at Lc and CCMA JR984/08 South African Revenue Services v Commission for Conciliation Mediation and Arbitration & Others Union Other case law cited Unica Plastic Moulders CC v NUSAW Unilateral implementing final offer Could still use economic power very best it amounted to a unilateral change to the terms and conditions of employment and was not disruptive at all. J1934/10 NUM and Others v Eskom Holdings SOC Ltd Wage increase non-union members, agreement that they would not join the union. If they did, payment of the increase would cease at the end of the month in which they joined the union. Form of anti-union discrimination as proscribed by s 5(2)(c) and s 5(3) of the LRA. DA17/10 Safcor Freight (Pty) Ltd t/a Safcor Panalpina v SA Freight & Dock Workers Union Extension of agreement JA103/2014 Association of Mineworkers and Construction Union and Others v Chamber of Mines of South Africa and Others (JA103/2014) [2016] ZALAC 11; (2016) 37 ILJ 1333 (LAC); [2016] 9 BLLR 872 (LAC) (24 March 2016) infringing its right to collectively bargain and strike as contemplated in section 23 of the Constitution in that it prohibits minority union from striking when bound by collective agreement that was extended to it -nothing unconstitutional about the majoritarianism principle section 23 having its own extension mechanisms: collective agreement binding on employees not members of the trade union or unions which are party to the collective agreement, if they are identified in the agreement, the agreement expressly binds them, and the trade union, or unions, who are party to the agreement have as members the majority of employees employed by the employer in the workplace. Interest arbitration- JR388/14 National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR388/14) [2016] ZALCJHB 508; [2017] 4 BLLR 405 (LC) (15 December 2016) hypothetical approach had final positions that were too far apart to allow for agreement, and that it is therefore the arbitrators role to anticipate where the bargain should have been struck, in the light of available data, had the bargaining continued to conclusion and in good faith. fairness of approach arbitration is a process of reason. While the parties to Interest arbitration cannot point to rights to sustain their cases, they are obliged at least to persuade the arbitrator why in fairness their position should be accepted. Only if both parties fail in that regard, may the arbitrator consider possible intermediate positions. The approach I have adopted in the present arbitration is accordingly to ask, in the first instance, whether the parties have advanced sufficient reasons for acceptance of their respective positions. dispute JA80/1 Rukwaya and Others v Kitchen Bar Restaurant (JA80/16) [2017] ZALAC 51; (2018) 39 ILJ 180 (LAC); [2018] 2 BLLR 161 (LAC) (5 September 2017) Employees obliged to follow the dispute resolution process provided for in the collective agreement. Held that the legal basis of the appellants claim is founded on the respondents non-compliance with the collective agreement and not upon a breach of their contracts of employment - the substance of employees complaint is the employers failure to pay them the industry minimum wages and bonuses in terms of the collective agreement. Union membership outside constitution DA8/2018 Lufil Packaging (Isithebe) (A division of Bidvest Paperplus (Pty) Ltd) v Commission for Conciliation, Mediation and Arbitration and Others (DA8/2018) [2019] ZALAC 39; (2019) 40 ILJ 2306 (LAC); [2019] 11 BLLR 1212 (LAC) (13 June 2019) A trade union cannot create a class of membership outside the provisions of its constitution, and if they purport to do so they act in excess of their powers and the act has no validity... Such a decision is ultra vires and invalid and, as such, susceptible to challenge by the employer from whom organisational rights based on the membership concerned is sought. exemptions committee JR1969-18 Putco (Pty) Ltd v SA Road Passenger Bargaining Council and Others (JR1969-18) [2019] ZALCJHB 137; (2019) 40 ILJ 2389 (LC) (11 April 2019) Trafford Trading. At paragraph 24 the judgment, the court said the following: [24] The exemptions committee as well as the second respondent correctly, in my view, approached the matter on the basis that the appellant was obliged to comply with the provisions of the collective agreement. For an exemption to be granted the appellant must establish a justifiable reason why the collective agreement should not be complied with. It is therefore incumbent upon the applicant for exemption to place facts and evidence, before the two tribunals, representing special circumstances that justify the exemption of the applicant from complying with the collective agreement. This approach makes sense since the purpose of the Act as stated in sec.1 is also the advancement of economic development, social justice, labour peace and the democratization of the workplace by fulfilling the primary objects of the Act. Subsection 1 (c) states as one of the primary objects of the Act, provision of a framework within which employees and their trade unions, employers and employers organisations can collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest and formulate industrial policy.[30] The applicant, having placed before both the exemption and appeal authority special circumstances in the form of facts and evidence that clearly justify an exemption from compliance with the main agreement, were entitled to expect the respective exemption authorities to interrogate the evidence and to make a considered and reasoned decision, based on that evidence, as to whether or not the exemption sought ought to be granted. While the factors listed in the main agreement are generally relevant, the crisp issue in the present instance was one of affordability. No duty to bargain JR2413/16 Bidair Services (Pty) Ltd v Makgoba N.O and Others (JR2413/16) [2019] ZALCJHB 235; (2020) 41 ILJ 169 (LC) (1 August 2019) the dispute between the parties is one that s 64(2) of the LRA refers to as a dispute that concerns a refusal to bargain, in the form of a dispute about a refusal to recognise a trade union as a collective bargaining agent and/or a dispute about the definition of an appropriate bargaining unit. It should be recalled that the basic structure of the LRA is one that does not impose a duty to bargain. Rather, the constitutional right to engage in collective bargaining finds expression in a strong set of organisational rights (those referred to in sections 12 to 16 of the LRA) and the right to strike in support of a demand that a party be recognised as a collective bargaining agent, or any other element of what the LRA defines as a refusal to bargain. If the conceptual integrity of this structure is to be maintained (as it must), then commissioners (and judges) must be cautious not to confuse what are two discrete concepts and thus run the risk of imposing a duty to bargain. The structure of the LRA is one in which commissioners and judges have no role in determining whether one party should bargain collectively with another, the subject matter of any collective bargaining, the level at which bargaining should be conducted, or the identity of any bargaining partner.[9] In summary: the true nature of the dispute between the parties is one that is contemplated by s 64(2) and thus a dispute that does not fall to be determined by arbitration, except by way of the advisory arbitration procedure referred to in s 64(2). It follows that the CCMA had no jurisdiction to issue an arbitration award in the present circumstances and on that basis, the award stands be reviewed and set aside. The application to interdict the termination of the Agency Shop Agreement is dismissed. J 215/20 Communication Workers Union v Sentech SOC Limited and Another (J 215/20) [2020] ZALCJHB 240 (22 October 2020) [41] Accordingly, Sentech is entitled to issue a notice of its termination as no party to the agreement can be forced by this Court to remain in an indefinite collective agreement. Van Niekerk J in TAWUSA succinctly states that to force a party to remain in an indefinite contract would be an unwarranted interference in a collective bargaining relationship. I agree fully with this. [52] I thus agree with the submission made on behalf of Sentech that it is apparent from the above authority of the Constitutional Court and section 18 of the LRA that an employer and a majority trade union may enter into an agreement in terms of section 18 to determine a threshold. However, what section 18 does not authorise is an employer and majority trade union determining what constitutional rights may be exercised by other trade unions. Deadlock J735/21 National Union of Metal Workers of South Africa v Eskom Holdings SOC Ltd and Others (J735/21) [2021] ZALCJHB 182; [2021] 10 BLLR 1049 (LC) (6 July 2021) National Union of Mineworkers and Others v Eskom Holdings (2012) 33 ILJ 669 (LC). [18] Both representatives seem to bead idem that going to arbitration is part of collective bargaining. I disagree. Arbitration is a process where a deadlock is broken. Likewise mediation is a process intended for that. On the other hand collective bargaining simply means negotiation at the collective level. Whilst negotiations are continuing, there will be no dispute to be resolved through any agreed process. Parties bring their own mental faculties to bear in order to find each other. Once they fail to find each other in negotiations parlance they deadlock and should find a deadlock breaking mechanism. Arbitration is one such mechanism. Once the parties reach an impasse, there is a temporary cessation of the bargaining process due to lack of parties negotiating efforts. During the pre-impasse period, the duty to bargain in good faith necessarily operates to preclude the employer from undertaking unilateral change, in order that bargaining be given a suitable opportunity to succeed. However, once the impasse is reached both the bargaining process in good faith are superseded by the overriding need for more drastic measures to resolve the impasse. Lawful unilateral action constitutes one such measure, and may be utilised only once the parties have exhausted the duty to bargain in good faith. Interest arbitration was never designed to displace collective bargaining; it was intended to be a substitute only of particular forms of industrial warfare such as strike and lockout. The parties have deadlocked, bargaining time is over. closed shop J 806/21 South African Transport & Allied Workers Union v Servest Security (Pty) Ltd - A Division of Servest Group and Another (J 806/21) [2021] ZALCJHB 235 (17 August 2021) [2] As a consequence of the conclusion of the closed shop agreement, SATAWUs members, who were previously members of KAWU, find themselves in an unenviable position, where they have to pay double subscriptions to both unions. [7] Following the correspondence as above, SATAWU filed an amendment to its Notice of Motion, to further seek in its Part A, an order interdicting and restraining Servest from dismissing its members by relying on the closed shop agreement, whilst the validity thereof was to be adjudicated upon under Part B. 2.1 The First Respondent is interdicted and restrained from unilaterally making any further deductions from the wages of the Applicants (SATAWU) members as identified in Annexure A of the First Respondents correspondence to the Applicants attorneys of record dated 20 July 2021; non-members of union J1260/2021 Combined Cleaners (Pty) Ltd t/a Spot On Cleaners v National Union of Metalworkers of South Africa and Others (J1260/2021) [2021] ZALCJHB 348 (12 October 2021) [7] In the circumstances, on the face of it, the applicants employees are not eligible for membership of the union. That being so, the union is not entitled to organisational rights. The applicant is thus entitled to the interim order that it seeks. Section 200 of the LRA provides that a registered trade union may act in any dispute to which any of its members as a party J997/2021 United National Transport Union v Transnet SOC Limited and Another (J997/2021) [2022] ZALCJHB 157 (3 June 2022) plant level bargaining where there is a main agreement JR 2841/2019; JR 2743/2019; JR 1026/2021 National Union of Metal Workers of South Africa (NUMSA) obo Its Members v MIS Engineering (PTY) Ltd t/a MITAK (JR 2841/2019; JR 2743/2019; JR 1026/2021) [2022] ZALCJHB 148 (14 June 2022) (See, for example, Plastics Converters Association of SA v MEIBC [(2017) 38 ILJ 2081 (LC).] and SALGA v IMATU[[2014] 6 BLLR 569 (LAC).].) In Wallenius Wilhelmsen Logistics Vehicle Services National Union of Metalworkers of South Africa[(2019) 40 ILJ 1254 (LAC).] the LAC had occasion to consider a dispute where both parties fell within the registered scope of a bargaining council and where in the absence of an operative main collective agreement, the union had sought to negotiate wages increase directly with one employer, a member of the employers’ organisation, party to the council. The LAC considered whether under the bargaining councils constitution, plant level bargaining was permitted. The court found that it was not, and that wages and other substantive conditions of employment were, in terms of the constitution, required to be negotiated at the centralised level. The court held that the union was bound by the bargaining councils constitution and was thus obliged to raise its demand negotiated at the central level in terms of the constitution. [26] In summary: the union has failed to advance a plausible reading of the bargaining councils constitution which permits plant level bargaining on substantive issues. The contrary is true. The bargaining councils constitution does not contemplate disputes concerning wages and substantive conditions of employment between trade unions and individual employers. The unions actions in tabling wage demands as against individual employers and subsequently referring disputes against those individual employers to the bargaining council are ultra vires the constitution. The rulings under review are thus correct. Union constitution not allow member JA29/2021 National Union of Metalworkers of South Africa (NUMSA) and Others v AFGRI Animal Feeds (PTY) Ltd (JA29/2021) [2022] ZALCJHB 147 (17 June 2022) [1] This appeal, with the leave of this Court, is against the judgment and order of the Labour Court (Mahosi J) delivered on 20 January 2021 which upheld a preliminary point raised by the respondent, Afgri Animal Feeds (Pty) Ltd. The Court found that the first appellant, the National Union of Metalworkers of South Africa (NUMSA) lacked the requisite locus standi to refer this matter and to represent the second to further appellants (the employees) in their unfair dismissal claim before the Labour Court in that they were employed in a sector which fell outside the scope of NUMSAs constitution. Costs were awarded against the appellants. threshold for recognition of trade union to bargain JR 2115/20 Anglo American Coal South Africa v CCMA and Others (JR 2115/20) [2023] ZALCJHB 57 (13 March 2023) "[46] Section 21(8C) of the LRA introduced a new basis for the grant of organisational rights which departs from the traditional basis. This, because organisational rights are no longer limited only to those trade unions which meet the threshold for representativeness. There has, therefore, been a shift from the notion that only representative trade unions in the traditional sense can be granted organisational rights. [47] The Coalition provided the definition of the words “significant” and “substantial”. The word “significant” is not defined in the LRA. Dictionaries define “significant” as “important or large enough to be noticed.” The word “substantial” is also not defined in the LRA. Dictionaries define “substantial” as “big, ample, considerable, large, significant or sizeable.”[7] The word “substantial” is equated with the word “significant”, which is in turn defined as “important or large enough to be noticed”." [50] The Recognition Agreement defines the workplace as a single workplace for purposes of determining retrospectivity[8] and the Commissioner's finding that collieries do not constitute a workplace is not only reasonable but is undoubtedly correct. In the same manner, as the Coalition is not permitted to establish retrospectivity with reference to each independent colliery, so should the Applicant also not be allowed to rely on the administration of union fees by each independent colliery as a reason not to grant organisational rights. "[51] In Chamber of Mines, reference was made to National Union of Metalworkers of South Africa and others v Bader Bop (Pty) Ltd and another[[2002] ZACC 30; 2003 (3) SA 513 (CC).] (Bader Bop), and held that the Constitutional Court in Bader Bop interpreted the provisions of the LRA to protect the organisational rights of minority unions:[10] ‘The Court underscored the importance of freedom of association as it emerged from international instruments that were pertinent to interpreting the LRA. It noted that, although these instruments and the values they embody do not require trade union pluralism, in contradistinction to majoritarianism, a majoritarian system can operate fairly only in accordance with certain conditions. It must allow minority unions to co-exist, to organise members, to represent members in relation to individual grievances and to seek to challenge majority unions.’" [52] The highest court had also held that a majoritarian system can be fair only if it allows minority unions to co-exist, to organise, to represent its members and to seek to challenge majority unions. The LRA, though premised on majoritarianism, still affords minority unions the right to organise within the workforce. In this regard, rights enshrined under sections 12, 13 and 15 may be granted to a minority trade union even if the minority union does not meet the threshold set by an agreement with a majority union under section 18. This is if the commissioner decides that the minority union represents “a significant interest” or a “substantial” number of employees, provided that the commissioner entertains representation from the majority union. "[67] The Industrial Court in the decision MAWU v Hart[(1985) 6 ILJ 478 (IC).] held that: “If in the context of a dismissal based on operational requirements, there is a distinct and substantial difference between consultation and bargaining. To consult means to take counsel or seek information or advice from someone and does not imply any kind of agreement, whereas to bargain means to haggle or wrangle so as to arrive at some agreement in terms of give and take. The term negotiate is akin to bargaining and means to confer with a view to compromise and agreement”." JR266/22 Public Servants Association of South Africa and Others v Commission for Conciliation Mediation and Arbitration and Others (JR266/22) [2024] ZALCJHB 255; [2024] 10 BLLR 1087 (LC) (8 July 2024) Essential service J1444/07 SAPS v POPCRU & Others Lock-out Lock-out similar provisions as strike notice J1149/09 NASECGWU & Others v Donco Investments (Pty) Ltd Same principles as strike applies, Can impose lock out on minority union in bargaining unit. J 1931/2013 UTATU SARWHU v Autopax Passenger Service termination lock-out' (not allowed) and 'exclusion lock-out' JA25/18 National Union of Metal Metalworkers of South Africa and Another v Aveng Trident Steel (A Division of Aveng Africa Proprietary Limited) and Others (JA25/18) [2019] ZALAC 36; (2019) 40 ILJ 2024 (LAC); [2019] 9 BLLR 899 (LAC) (13 June 2019) could, if its proposals were refused, embark on a section 189 exercise with a view to retrenching those who were not prepared to work to its operational requirements provided the retrenchment was final and irrevocable, and the requirements of section 189 were met. [47] The law of lock-outs in South Africa was fundamentally altered with the enactment of the LRA in 1995. Section 64... It specifies only one form of employer conduct, namely exclusion from the workplace (with or without a breach of contract).[11] Unlike the definition of a lock-out in the LRA of 1956, the current definition of lock-out does not include the termination lock-out. A dismissal cannot therefore by definition constitute a lock-out, and vice versa. (...Rather, the target of section 187(1)(c) of the LRA was the termination lock-out.) ...[57] The essential question for determination in this appeal is whether the amendment to section 187(1)(c) of the LRA by the LRAA has altered the law in that respect. ...section 187(1)(c) of the LRA in its original form prohibited the dismissal of employees if the reason for the dismissal was to compel the employees to accept a demand in respect of any matter of mutual interest between the employer and the employee. [49] ...section 67(4) of the LRA does not preclude an employer from fairly dismissing an employee for reasons related to the employees conduct during the strike, or for a reason based on the employers operational requirements. Thus, a dismissal for striking is automatically unfair, but an operational requirements dismissal of strikers may not be. ECCAWUSA and Others v Shoprite Checkers t/a OK Bazaars Krugersdorp (2000) 21 ILJ 1347 (LC). See also MWASA and Oothers v Independent Newspapers (Pty) Ltd (2002) 23 ILJ 918 (LC)where amendments to terms and conditions of employment are proffered by an employer as an alternative to dismissal during a bona fide retrenchment exercise and it is a reasonable alternative based on the employers operational requirements, the employer will be justified in dismissing employees who refuse to accept the alternative on offer. Frys Metals (Pty) Ltd v NUMSA and Others (2003) 24 ILJ 133 (LAC); National Union of Metalworkers of SA & others v Frys Metals (Pty) Ltd 2005 (5) SA 433 (SCA)...A dismissal falls within the scope of section 187(1)(c), according to this interpretation, only if it is conditional in the sense that the employer retains an intention to accept the employees back into its employ if they accede to the changes in relation to which there is an impasse. [63]...An offensive lock-out, in which the employer will be denied the right to employ replacement labour, or a breach of contract leading to litigation, usually will be self-defeating, adding to the economic pressure on an employer struggling financially and needing to restructure for that reason. [65]...The question whether section 187(1)(c) of the LRA is contravened does not depend on whether the dismissal is conditional or final, but rather on what the true reason for the dismissal of the employees is. The proven existence of the refusal of a demand merely prompts a causation enquiry. The actual reason for the dismissal needs to be determined and there is no basis in principle for excluding an employer’s operational requirements from consideration as a possible reason for dismissal. [67]...in terms of section 67(5) of the LRA to dismiss protected strikers where the employer is able to demonstrate (on all the facts and circumstances of a particular case) a legitimate and substantial business necessity. (NUM v Black Mountain Mineral Development Co (Pty) Ltd [1997] 4 BLLR 355 (A) the determination necessarily involves strict scrutiny of the employers justification and ultimately a judicial value judgment.) (SA Chemical Workers Union v Afrox Ltd (1999) ILJ 1718 (LAC)) The test for determining the true reason is that laid down in SA Chemical Workers Union v Afrox Ltd.[30] The court must determine factual causation by asking whether the dismissal would have occurred if the employees had not refused the demand. If the answer is yes, then the dismissal is not automatically unfair. If the answer is no, as in this case, that does not immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether such refusal was the main, dominant, proximate or most likely cause of the dismissal. underlying dispute between the parties concerning a 13th cheque remain unresolved J2290/19 National Association of South African Workers obo Members v Kings Hire CC (J2290/19) [2019] ZALCJHB 345; (2020) 41 ILJ 685 (LC); [2020] 3 BLLR 312 (LC) (29 November 2019) purpose of notice provisions considered unresolved dispute already reached impasse and failure to settle in the CCMA strike notice already given employer entitled to give lock out notice proper lock out notice given there was not a demand J 566/20 Association of Mineworkers and Construction Union and Others v Safety and Security Sectoral Vunene Mining (Pty) Ltd (J 566/20) [2020] ZALCJHB 114 (7 July 2020) [27] Mr Letlaka, in paragraph 34 of the answering affidavit, says it was carefully explained to AMCU's representatives when they were served with a lock-out notice. Still, he does not state that there was a demand made, because when it comes to a lock-out issued in terms of subsection 64(3)(d),in my view, a demand might be made orally before a lock-out, if there was a demand he would have stated as such. As he has done with the notice issued on 25 May 2020.[28] It is clear that the lock-out notice, as issued on 22 May 2020 by the Employer was in response to an unprotected strike. The answering affidavit does not suggest that there was a demand. I say this because there is no indication that the employees were ordered to do something or refrain from doing something. The lock-out implemented by the Respondent, on the First Applicants members, as per the order 3 above, is both unlawful and unprotected. interim relief: section 76. Replacement labour. J398/21 Airline Pilots Association of South Africa (ALPA-SA), as represented by the South African Airways Pilots Association (SAAPA), a branch of ALPA-SA obo Members v South African Airways (SOC) Limited and Others (J398/21) [2021] ZALCJHB 57 (23 May 2021) [12] The requirements for granting interim relief are well known. Other than establishing urgency, the applicant is required to establish that it is entitled to interim relief on the grounds that; (a) the right which is the subject-matter of the main application and which the applicant seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt; (b) if such case is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim interdict is not granted and the applicant ultimately succeeds in establishing his or her right; (c) there is no other satisfactory remedy; and (d) the balance of convenience favours the granting of interim relief.[4] In Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another[1973 (3) SA 685 (A) at 691C-G], it was held that the granting of interim relief pending an action is an extraordinary remedy within the discretion of the Court, and that the discretion would be exercised with due regard to the requirements to be met and the facts of the case. [20] Earlier in SACTWU v Coats[SACTWU v Coats 2001 22 ILJ 1413 (LC)], this Court had held that an employer does not contravene the provisions of section 76(1)(b) of the LRA by using its employees who are not locked out to perform their own work as well as the work of their co-workers who are locked out. The Court appreciated that non-striking employees and employees who have not been locked out, may refuse to do the work of their co-workers who are either on strike or locked out. Flowing from this decision, it is apparent that section 76(1)(b) does not prohibit an employer from implementing a lock-out in response to a strike and then sourcing replacement labour, to perform the work of the locked out employees. [42] The policy is one that also says to unions and employees: Do not lightly resort to a strike when a dispute has arisen because, in the absence of a strike, the employer may not employ replacement labour even if it institutes a lock-out but, if you strike, the employer will be able to employ replacement labour - with or without a lock-out. The sum total of all this is that the policy is to encourage parties to disputes to try to reach agreement on their disputes and a strike or lock-out should be the last resort, when all reasonable attempts to reach agreement have failed. [24] In line with what was stated in Technikon SA v National Union of Technikon Employees,[] SAA is thus permitted to employ replacement labour even if it had initially instituted a lock-out. This is so in that the individuals who would ordinarily have performed the work in question, were not initially locked-out, but had refused to perform those duties. When the applicant commenced its strike action and SAA confirmed the continuation of its lock-out in response to that strike, this significantly diminished the applicants protection under the proviso set out in section 76(1)(b) of the LRA, thus entitling SAA to engage replacement labour. [30] To conclude therefore, there was no need for this application to be before the Court some 17 court days before the Main application was to be heard, where the parties were to fully ventilate the issues raised in the same application. order, declaring the lock-out to be unlawful and unprotected in terms of section 65(1)(a)(ii) of the LRA and interdicting Southern Sun from implementing the lock-out. JA136/2021 Southern Sun Hotels Interests (PTY) LTD v South African Commercial Catering and Allied Workers Union (JA136/2021) [2022] ZALAC 120 (15 November 2022) [22]...Since the substantive agreement is binding on the parties in terms of section 23[7] of the LRA, any attempt by Southern Sun to vary its obligation to pay that wage increase, whatever the justification and however characterized, remains an issue that is regulated by that agreement. [28]... A demand by an employer that employees accept a reduction in wages is a legitimate issue of mutual interest that may form the subject of a lock-out, provided that the reduction does not take away any vested rights that employees have to an increase in wages in terms of a collective agreement. [30] For these reasons, I consider there to be no basis in law or fact to interfere with the Labour Courts conclusion that Southern Suns lock-out is unprotected and in direct contravention of section 65(3)(a)(i) of the LRA, as the substantive agreement which is binding on Southern Sun regulates the issue in dispute.[30] For these reasons, I consider there to be no basis in law or fact to interfere with the Labour Courts conclusion that Southern Suns lock-out is unprotected and in direct contravention of section 65(3)(a)(i) of the LRA, as the substantive agreement which is binding on Southern Sun regulates the issue in dispute.[30] For these reasons, I consider there to be no basis in law or fact to interfere with the Labour Courts conclusion that Southern Suns lock-out is unprotected and in direct contravention of section 65(3)(a)(i) of the LRA, as the substantive agreement which is binding on Southern Sun regulates the issue in dispute..[30] For these reasons, I consider there to be no basis in law or fact to interfere with the Labour Courts conclusion that Southern Suns lock-out is unprotected and in direct contravention of section 65(3)(a)(i) of the LRA, as the substantive agreement which is binding on Southern Sun regulates the issue in dispute.[30] For these reasons, I consider there to be no basis in law or fact to interfere with the Labour Courts conclusion that Southern Suns lock-out is unprotected and in direct contravention of section 65(3)(a)(i) of the LRA, as the substantive agreement which is binding on Southern Sun regulates the issue in dispute. [32] In terms of section 65(1)(c) of the LRA, a lock-out is unprotected if the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court. Since Southern Sun has not implemented the 5.5% wage increase provided for in the substantive agreement, it is in breach of the substantive agreement and the individual contracts of employment (as varied by the former) of SACCAWUs members. SACCAWU was, therefore, entitled to refer an interpretation and application dispute to the CCMA which it duly did on 30 September 2021. This referral predated Southern Suns cancellation of the Recognition Agreement and its demand that SACCAWUs members forfeit the 5.5% increase for the period 1 April 2020 to 31 March 2021.[33] SACCAWU would be equally entitled to approach the Labour Court, in terms of section 77(3) of the Basic Conditions of Employment Act,[12] as its members have performed their services for the April 2020 to March 2021 year, but have not received the increased remuneration to which they have an accrued right. [34]...This makes it plain that the lock-out is unprotected for the further reason that the issue in dispute is one which a party can either refer to arbitration or to the Labour Court as contemplated in section 65(1)(c) of the LRA. se replacement labour to perform the work of the locked out employees (section 76(1)(b) of the Labour Relations Act[2] (LRA)) CCT 105/22 National Union of Metalworkers of South Africa v Trenstar (Pty) Ltd (CCT 105/22) [2023] ZACC 11; (2023) 44 ILJ 1189 (CC); 2023 (7) BCLR 814 (CC); [2023] 7 BLLR 609 (CC) (18 April 2023) [1] An employer who embarks on a lock-out may not, as a general rule, use replacement labour to perform the work of the locked out employees. There is one exception: if the lock-out “is in response to a strike”.[1] This case is about the interpretation of that exception. [5]...members have decided to suspend (as of the close of business on the 20th November 2020) the protected strike action which commenced on the 26th October 2020…[6]...the Company hereby gives 48 hours’ notice that it intends locking out all NUMSA members, with effect from 07h00 on Monday the 23rd November 2020...[7]...denying that Trenstar was entitled to use replacement labour during the lock-out and demanding an undertaking that Trenstar would not use temporary labour....[13]...the Labour Appeal Court, that because the strike and lock-out had both ended, the matter was moot. Sun International[SA Commercial Catering & Allied Workers Union v Sun International [2015] ZALCJHB 341; (2016) 37 ILJ 215 (LC); [2016] 1 BLLR 97 (LC).] dealt with the question whether an employer which had locked out its employees in response to a strike could continue to use replacement labour once the strike came to an end. Here, by contrast, the strike was merely suspended. The applicable Labour Court judgment was thus Kings Hire,[National Association of South African Workers obo Members v Kings Hire CC [2019] ZALCJHB 345; (2020) 41 ILJ 685 (LC); [2020] 3 BLLR 312 (LC).] which also dealt with a suspended strike. If the strike in the present case had been settled or permanently withdrawn, there might have been a different finding. This goes to show that the present case was decided on its own unique facts. [24] I start with the distinction Trenstar draws between a suspended and terminated strike. In order for there to be a strike as defined in the LRA, there must be a concerted withholding of labour and this concerted withholding of labour must be for a specified purpose. If employees are not refusing to work and are not retarding or obstructing work, they are not on strike, and no strike exists....[25] The LRA does not deal with the “termination” of strikes or with “suspended” strikes. This is unsurprising. A “strike’ is a state of affairs occurring with a particular purpose. It either exists or it does not. A “strike” ends, in the sense of no longer existing, when there is no longer a concerted withdrawal of labour...[28]...Nevertheless, and during the period of the suspension, there is no strike, even though the employees have an unconditional right to reinstitute the strike at any time. "[39] In interpreting the exception contained in section 76(1)(b) {(1) An employer may not take into employment any person— (b) for the purpose of performing the work of an employee who is locked out, unless the lock-out is in response to a strike.”}, it is important to bear in mind the usual position governing the use of replacement labour during strikes and lock outs. Subject to the one exception contained in section 76(1)(a) {(1) An employer may not take into employment any person— (a) to continue or maintain production during a protected strike if the whole or a part of the employer’s service has been designated a maintenance service; or}, an employer may use replacement labour during a strike. But subject to the one exception contained in section 76(1)(b), an employer may not use replacement labour during a lock out. The LRA, in allowing an employer in general to use replacement labour during a strike, has already allowed a significant weakening of the efficacy of strikes. The norm advocated by the International Labour Organisation (ILO) is that employers should not be entitled to use replacement labour during strikes except in the case of essential services or where the strike would cause an acute national crisis.[20]" [41] An employer who decides to persist with an exclusion of employees from the workplace after they have ended their strike and tendered their services is no longer responding to the strike, but is choosing to use the lock-out offensively in a way that is indistinguishable from the employer who, in the complete absence of a strike, embarks on a lock-out to compel compliance with its demand. [47] It follows, from my preferred interpretation of section 76(1)(b) that, even if, notionally, Trenstar’s decision to give notice of a lock-out was in response to the strike which had lasted for several weeks and which was not quite over when the lock out notice was given, the right to use replacement labour no longer existed when the lock out actually began on the Monday morning. Strike Ultimatum CA2/99 Coin security Unprotected Right to have a hearing prior to dismissal JA29/99 Midise v Steve's Spar Blackheath Ultimatum Audi alteram partem rule JA78/99 Karras t/a Floraline v SASTAWU Lock-out Replacement labour JA11/00 Technikon SA v NUTESA negotiations whether employer can negotiate with employees directly, where employees in conflict with Union; in conflict with s 200(1); Baloyi v M&P Manufacturing (2002) 22 ILJ 391 (LAC) PA3/01 Mzeku v Volkswagen unprotected Employer's losses and the trade union becomes aware of such unprotected strike and is requested to intervene but fails to do so without just cause, such trade union is liable in terms of s68(1)(b) of the [LRA] to compensate the employer who suffers losses due to such an unprotected strike JS586/02 Mangaung Local Municipality v SAMWU Notice meaning that the written notice of a strike must give in exact terms when the strike is to commence Ceramics Industries Ltd t/a Betta Sanitary Ware v National Construction Building & allied Workers Union [1997] 18ILJ 671(LAC) C1185/02 Food & Allied Workers Union (FAWU); Joan Adler & 144 Others v Rainbow Farms unprotected: ultimatums Two ultimatums 1 1/2 hours apart was followed by dismissal notice ; the employer had behaved provocatively and had thereby contributed to the strike action although hearings had been held they were largely an exercise in selective reinstatement and the lack of objective criteria suggested that the company had not viewed the strike as a serious enough reason to justify permanent non-employment of strikers; procedurally and substantively unfair. C156/03 NUMSA & 41 Others v Pro Roof Cape (Pty) Ltd Unprotected; Ultimatum; Procedure failed to meet the requirements established in Modise & Others v Steves Spar Blackheath ((2000) 21 ILJ 519 (LAC)) and Karras t/a Floraline v SA Scooter & Transport Allied Workers Union & Others ((2000) 21 ILJ 612 (LAC)) in that the employees had been given insufficient time to reflect on, and respond to, the notice; in Modise v Steves Spar Blackheath (supra) the LAC had not determined whether the employer was required to observe the audi alteram partem rule before issuing an ultimatum but that they had made clear that the hearing contemplated was a matter of pre-dismissal procedure. Noted further that the Code of Good Practice on Dismissal specifically required an employer to engage with the trade union before a final warning or ultimatum was issued and that this would have satisfied the requirement of a hearing as described in Modise v Steves Spar Blackheath (supra). Held that a hearing of that kind which took place prior to the ultimatum could not resolve the question whether workers complied with the ultimatum and therefore the audi rule had to be observed both before and after the ultimatum, either before or after workers had been dismissed. The Court noted that in this instance, no hearing was held after the dismissals and the manner of issuing the ultimatum had not given the parties any opportunity for meaningful engagement. It was held therefore, that the dismissals were procedurally unfair. JS929/02 National Union of Mineworkers (NUM) ; Chulu, E & Others v Billard Contractors cc & Midway Bricks (Pty) Ltd non-union members that the minority unions were not part of the bargaining unit and that as they were not recognised, could not serve notice of an intention to strike. Held further that s 64(1) referred to every employee and therefore the scope was wide enough to include non-union members. The Court also noted that to limit the strike to union members only would be to deny the other employees their fundamental right to strike JS 96/05 SATAWU & Others v Equity Aviation Services (Pty) Ltd Picketing Held that the decision to grant the in-store picketing was clearly against the interests of the employer who should have been granted a hearing before the rules were established J 1404/06; JR 1934/06 Shoprite Checkers (Pty) Ltd v CCMA; Commissioner W Everett N.O. & SACCAWU Collective agreement Main Agreement prohibiting strike in support of demand for wage negotiations at plant level; Unprotected J2123/05 Cape Gate (Pty) Ltd v Numsa & Others no notice given no referral Ultimatum time to reflect disciplinary enquiry: audi alteram partem Nkosi & Others v Eggbert Eggs (Pty) Ltd Secondary strike 66(2) J1320/07 SALGA v SAMWU agreement to work overtime clear intention to strike Unprotected not referred to CCMA J2080/07 Ford Motor Company of SA (Pty) Ltd v NUMSA & Others Unprotected strike Refusal to park busses at prescribed venue D235/03 SATAWU & Others v Ikhwezi Bus Service (Pty) Ltd Matter of mutual interest What constitutes; Demand for increase in BBEEE shareholding constitutes a matter of mutual interest and therefore legitimate demand for industrial action JR44/07; JR352/07 Itumele Bus Lines (Pty) Ltd t/a Interstate Bus Lines v TAWUSA & Others Dismissal Unprotected strikers; ultimatum the employees response on receipt of the ultimatum; whether the employees made any attempts to comply with the ultimatum and the explanation offered by the employer for non-compliance thereof; and the circumstances that prevailed between the issuance of the ultimatum and the dismissals 64 JS10/07 PTWU v Fidelity Security Services conditions of employment strike protected if changes amounted to unilateral changes in conditions of employment JR1949/08 NAMPAK Metal Packaging Limited t/a Bevcan v NUMSA & Others non-compliance with pre-strike procedures would render a work stoppage an unprotected strike court found that dismissal was too harsh, given the role of BP and Unitrans in the whole process. JS585/06 SACWU v Unitrans Supply Chain Solutions (Pty) Ltd t/a Unitrans Freight and Logistics & Another protected demand JS795/03 NUMSA & Others v Edelweiss Glass & Aluminium (Pty) Ltd dispute the parties had to hold different positions on an issue, and they must have reached a stage where none of them would change their stance. J1245/09 South African Broadcasting Corporation Limited v Communication Workers Union & Others Strike unprotected employers sick leave policy, prevailing Act or existing company agreement or practice would apply. This brought the issue in dispute within the realm of s 65(1) of the LRA. It was therefore covered by the provisions of the collective agreement. P32/07 Ford Motor Company of SA (Pty) Ltd v NUMSA & Others Unprotected Ultimatums opportunity was given to individual ee's to be heard P175/09 South African Clothing and Textiles Workers Union (SACTWU) & others v Yarnex (Pty) Ltd t/a Bertrand Group Go slow inconsistency re-employment JS 09/09 NUMSA obo Hlongwane v Unispan Manufacturing Ultimatum Warn e/e; Persuade e/e JS 09/09 NUMSA obo Hlongwane v Unispan Manufacturing Rule Nisi strike over discharged as order cannot be indefinite J 793/10 Ekurhuleni Metropolitan Municipality v SAMWU and Others Mutual interest vs rights issue No need for demand and rejection of demand J253/11 City of Johannesburg Metro Municipality v SAMWU Procedure No need grievance or 30 days expired J253/11 City of Johannesburg Metro Municipality v SAMWU Unprotected the issue upon which they intended striking was governed by a collective agreement which was in place and was enforceable between the parties JS881/09 Transport & Allied Workers Union obo Matjila and Others v North Western Parks & Tourism Board Unprotected manager be disciplined JS881/09 Transport & Allied Workers Union obo Matjila and Others v North Western Parks & Tourism Board Unprotected Ultimatums Clear and unambiguous communicated, what was required from ee, time frames, consequence of failing, not always hearings, JS38/07 Masilela & Others v Reinhardt Transport (Pty) Ltd & Others Essential service Refer compulsory arbitration C654/2009 City of Cape Town v South African Local Government Bargaining Council Secondary strike S 66(2)(c) actual harm must be proportional Only one day strike JA26/2007 SALGA v SAMWU Strike vs Withholding work CA11/2007 National Union of Mineworkers v CCMA Unprotected strike, grievances legitimate, short duration, reinstatement for 12 months’ pay. C371/06 FAWU and Others v Supreme Poultry (Pty) Ltd (formerly known as Country Bird) Unprotected strike, Ultimatum, insufficient time, but no complaint, principle issue. JS 535/2010 Pule and Others v Mvelatrans (Pty) Ltd t/a Bojanala Bus Services Unprotected: Substantive and Procedural fairness Unprotected, Substantive fairness: new shift system, duration of the strike, the harm caused by the strike, the legitimacy of the strikers demands, the timing of the strike, the conduct of the strikers and the parity principle. Procedural fairness: The respondent had not followed a proper procedure in issuing the ultimatum. It was incumbent on the respondent to engage with the union before issuing the ultimatum. There was a duty on the respondent to afford the affected employees an opportunity to be heard before a decision to dismiss them was taken. (JA 51/11) [2013] ZALAC 25 NUMSA and Others v CBI Electric African Cables Majority principle. Minority union strike. Unprotected. (J 99/14) [2014] ZALCJHB 13 Chamber of Mines of South Africa v AMCU and Others Unprotected Strike Requirement in collective agreement that written notice be provided to other party of dispute together with proposed settlement. Such requirement to be adhered to over and above requirements in LRA. (J1135.14) [2014] ZALCJHB 181 Imvulas Quality Protection (Africa) (Pty) Ltd and Another v CCMA and Others Unprotected Strike Damages. Party entitled to bring such claim by way of application. Applicant in present application not providing evidence of quantum of damages and matter referred for hearing of oral evidence on this issue. (P 337/12) [2014] ZALCPE 5 Algoa Bus Company (Pty) Ltd v SATAWU and Others Terminology of continuing the strike Terminology of continuing the strike, in court order (contempt of court application) whatever broad meaning might be attributed to that term, was too vague to be useful in a context where quasi criminal sanctions were at issue. The court ultimately held that there had been no evidence that the appellant, in its own right, had breached the order of court (JA61/2013) [2014] ZALAC 31 Food and Allied Workers Union v In2Food (Pty) Ltd Strike / Misconduct. Participation in an unprotected strike and acts related thereto specifically prohibited by court order. Dismissal justified. (JS522/12) [2014] ZALCJHB 280 NEHAWU obo Muloiwa and Another v University of Venda Picketing Duty of good faith extending even after working hours. Could impact on the employers goodwill and reputation. CA 18/11 ADT Security (Pty) Ltd v National Security & Unqualified Workers Union and Others Unprotected strike issue. Collective agreement not permitting bargaining at workplace level on remuneration. (D448/2014) [2014] ZALCD 36 Newcastle Local Municipality v SAMWU and Others Protected Strike: Strike over demand for organisational rights by minority union (J 2301/13) [2013] ZALCJHB 272 Transnet SOC Ltd v National Transport Movement and Others Ultimatum notice Inappropriate and meaningless that notice of order read in a language that employees did not speak or understand. Insufficient that notice only brought to attention of employees who might have been present at a particular time. J2630/13 Ciro Beverage Solutions (Pty) Ltd v South African Transport & Allied Workers Union and Others Strike, Picketing, The court held that the applicant had to show that the workers constitutional right to be within the area concerned should be subject to limitations on account that they had no legitimate reason for being there other than for illicit purposes. On the other hand the applicant had a right to conduct its business and affairs with whomsoever, unhindered, and had a right to have its employees who wanted to render their services to do so unhindered. A radius of 4 km of the mine. Orders obliging unions to ensure that their members act in a lawful and peaceful manner during strikes. (J1239/13) [2014] ZALCJHB 58 Xstrata South Africa (Pty) Ltd v AMCU and Others In terms of s 64(4) of LRA without following procedures in s 64(1). Permissible if the employer unilaterally changes workers terms and conditions of employment. If changes merely amounted to changes in work practice, workers could not use s 64(4). (C 179/2015) [2015] ZALCCT 22 Intercape Ferreira Mainliner (Pty) Ltd and Another v NUMSA and Others Notice JA123/2014 Metsimaholo Local Municipality v South African Municipal Workers Union and Others (JA123/2014) [2016] ZALAC 19 (11 May 2016) strike notice defective due to vagueness of the commencement of the strike notice a procedural requirement. Strike unlawful for lack of proper notice whether unprotected J1746/16 City of Johannesburg Metropolitan Municipality v South African Municipal Workers Union and Others (J1746/16) [2016] ZALCJHB 310 (19 August 2016) true nature of issue in dispute determined; real issue about case of improper / incorrect application of grading; constitutes a rights dispute; strike unprotected. Issue in dispute thus regulated by collective agreement; strike unprotected whether unprotected true nature of issue in dispute determined real issue about case of improper / incorrect application of grading constitutes a rights dispute strike unprotected Urgency J2525/15 Mbekele and Another v Phahlane and Another (J2525/15) [2016] ZALCJHB 5 (5 January 2016) The other requirement to satisfy in relation to urgency is to show that there are no other satisfactory remedies available to the applicant and that if the relief is not granted on an urgent basis the applicant will suffer irreparable harm. MEC for Education, North West Provincial Government v Gladwell [2012] 8 BLLR 747(LAC). [46] Disputes concerning alleged unfair labour practices must be referred to the CCMA or a bargaining council for conciliation and arbitration in accordance with the mandatory provisions of section 191(1) of the LRA. The respondent in this case instead sought a declaratory order from the Labour Court in terms of section 158(1)(a)(iv) of the LRA to the effect that the suspension was unfair, unlawful and unconstitutional. A declaratory order will normally be regarded as inappropriate where the applicant has access to alternative remedies, such as those available under the unfair labour practice jurisdiction. A final declaration of unlawfulness on the grounds of unfairness will rarely be easy or prudent in motion proceedings. The determination of the unfairness of a suspension will usually be better accomplished in arbitration proceedings, except perhaps in extraordinary or compellingly urgent circumstances. When the suspension carries with it a reasonable apprehension of irreparable harm, then, more often than not, the appropriate remedy for an applicant will be to seek an order granting urgent interim relief pending the outcome of the unfair labour practice proceedings. (Footnote omitted) claim for damages Section 68(1)(b) (JS766/12 PTAWU obo Khoza and Others v New Kleinfontein Goldmine (Pty) Ltd (JS766/12) [2016] ZALCJHB 121; (2016) 37 ILJ 1728 (LC) (30 March 2016) am also concerned that the issue of liability for compensation under section 68(1)(b) was only raised with it after the event, at a stage when PTAWU could not have done anything to minimise its exposure to such liability. termination of transport J2801/16 Xinergistrix (Pty) Ltd v Motor Transport Workers Union of South Africa (MTWUSA) and Others (J2801/16) [2016] ZALCJHB 548 (30 December 2016) any intended strike action would be unprotected as there was no unilateral changes to the employees terms and conditions of employment;[7] Since the Applicant never provided transport to the employees during the course of the Nampak contract, there was no stoppage of such transport and thus it could not be argued that there was a unilateral change to terms and conditions of employment. To this end, any intended strike action would be unprotected as there was no unilateral changes to the employees terms and conditions of employment; [14] A dispute concerning a unilateral change by an employer to employees terms and conditions of employment is legitimately a matter in respect of which the right to strike may be exercised. This right accrues to employees by virtue of inter alia, the provisions of section 64 (4) procedure: JS649/13 AMCU obo Sibiya and Others v Shanduka Coal (Pty) Ltd (JS649/13) [2017] ZALCJHB 134 (25 April 2017) participation in an unprotected strike and violent conduct respondent had not complied with the provisions of Item 6(2) of the Code as it failed to contact AMCU prior to the dismissal, let alone furnish it with an ultimatum. I am further satisfied that the Respondent acted procedurally unfairly by not allowing the Employees to be represented by representatives of their choice during the appeal proceedings... compensation in the amount equivalent to two (2) months’ salary. CCMA certificate J949/17 South African Airways (Soc) Ltd v South African Cabin Crew Association and Others (J949/17) [2017] ZALCJHB 158 (10 May 2017) Vodacom (Pty) Ltd v Communication Workers Union (2010) 31 ILJ 2060 (LAC) at para 11. In this particular case, it is common cause that there was a collective agreement which applied. Accordingly whatever certificate may have been produced and may have been shown to the employer, the certificate cannot override the clearly stated limitation upon the right to strike as contained in s65(1)(a). In short, a certificate can in no way trump the clear provisions of the limitation. For this reason, the court aquo erred in its approach to the law. It should not have held that the certificate issued in terms of s 64 provided an unqualified and unlimited 'passport' to the employees to strike, no matter the provisions of s65(1)(a),as I have outlined them. Strautmann v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg & Bean Suncoast and Others (2009) 30 ILJ 2968 (LC) at para 9 When a commissioner completes form 7.12 and categorizes the dispute referred to the CCMA by ticking one of the boxes provided, the commissioner does not make a jurisdictional ruling. Nor does the ticking of any of the boxes marked "CCMA arbitration", "Labour Court" "None" or "Strike/Lockout" amount to a ruling on which of those courses of action must be pursued by a referring party. Bombardier Transportation (Pty) Ltd v Mtiya NO and Others (2010) 31 ILJ 2065 (LC) at para 14. See also Mbele and Others v Chainpack (Pty) Ltd and Others (2016) 37 ILJ 2107 (LC) at paras 31 32; Cook4life CC v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 2018 (LC) at paras 8 9. a certificate of outcome is no more than a document issued by a commissioner stating that, on a particular date, a dispute referred to the CCMA for conciliation remained unresolved. It does not confer jurisdiction on the CCMA to do anything that the CCMA is not empowered to do, nor does it preclude the CCMA from exercising any of its statutory powers. In short, a certificate of outcome has nothing to do with jurisdiction. If a party wishes to challenge the CCMA's jurisdiction to deal with an unfair dismissal dispute, it may do so, whether or not a certificate of outcome has been issued. Helderberg International Importers (Pty) Ltd v McGahey NO and Others (2015) 36 ILJ 1586 (LAC) at para 11. I align myself with the conclusions reached in the Bombardier judgment, as have a number of other decisions in this court, that a certificate of outcome has no legal significance beyond a statement that the dispute referred to conciliation has been conciliated and was resolved or remained unresolved, as the case may be. SA Post Office Ltd v Moloi NO and Others (2012) 33 ILJ 715 (LC) at para 37. The status of the certificate of outcome has received attention in a number of cases in the Labour Court and Labour Appeal Court. Although the status of the certificate of outcome was dealt with in the context of unfair dismissal cases, in my view the same principle applies in cases involving disputes of mutual interest. In this respect, I align myself with Van Niekerk J, in Bombardier Transportation (Pty) Ltd v Mtiya NO & others right to J1799/17 City of Johannesburg Metropolitan Municipality v South African Municipal Workers Union (SAMWU) and Others (J1799/17) [2017] ZALCJHB 292; [2017] 12 BLLR 1244 (LC) (10 August 2017) [12] This court is thus confronted with conflicting judgments and approaches. On the approach of Murphy AJA in Mawethu Civils (albeit tentative and at best obiter), which is consistent with that of Snyman AJ in Sibanye (1), the strike herein is unprotected because, although styled as a dispute about a unilateral change to terms and conditions of employment, the dispute is actionable in terms of section 77(3) of the BCEA as a breach of contract, with the result that the strike is hit by the section 65(1)(c) limitation of the right to strike. But on the approach of Van Niekerk J in Sibanye (2), the fact that SAMWU might otherwise have characterised the dispute as a breach of contract, does not detract from the fact that the actual nature of the dispute herein is a dispute about a unilateral change to terms and conditions of employment, with there being nothing that provides that such a dispute may be referred to arbitration or to this court for adjudication. Accordingly, on the latter approach, the strike is not hit by the section 65(1)(c) limitation of the right to strike. lawful demand J2689-17 Imperial Cargo (Pty) Ltd v DETAWU and Members (J2689-17) [2017] ZALCJHB 389 (25 October 2017) [21]However, as indicated earlier on it, is necessary to analyse each demand separately, as it may be that the strike is protected in respect of one or more of the other demands. Intercape Ferreira Mainliner (Pty) Ltd and another v NUMSA and others (2015) ZALCCT 22 at paragraphs [13] to [17]. [28] Employees may strike in support of a demand to change a work practice where the strike has been processed in terms of section 64(1), which was done in this case [37] In light of my findings that the second demand is lawful and that the remaining demands are severable (each can stand alone), the applicant cannot succeed to have the strike interdicted. Unprotected strike: substantive and procedurally unfair JS315/12 Association of Mineworkers and Construction Union ("AMCU") and Others v Australian Laboratory Services (Pty) Ltd (JS315/12) [2017] ZALCJHB 398 (1 November 2017) failure to explore ways of avoiding dismissal prior to taking decision; imposition of additional requirement before workers permitted to return; failure to invite representations prior to dismissal in circumstances where management doubted intention to return to work; relevance of conduct of union and strikers during strike; communications with strikers during a strike National Union of Metalworkers of South Africa (NUMSA) v CBI Electric African Cables [2014] 1 BLLR 31 (LAC) at 36, par [26]. [29] In my view the determination of substantive fairness of the strike-related dismissal must take place in two stages, first under item 6 when the strike related enquiry takes place and secondly, under item 7 when the nature of the rule which an employee is alleged to have contravened, is considered. It follows that a strike-related dismissal which passes muster under item 6 may nevertheless fail to pass substantive fairness requirements under item 7. This is so because the illegality of the strike is not a magic wand which when raised renders the dismissal of strikers fair (National Union of Mineworkers of SA v Tek Corporation Ltd and others (1991) 12 ILJ 577 (LAC)). The employer still bears the onus to prove that the dismissal is fair.[30] In his work Grogan expresses the view that item 6 of the Code is not, and does not purport to be, exhaustive or rigid but merely identifies in general terms some factors that should be taken into account in evaluating the fairness of a strike dismissal. He, therefore, opines that in determining substantive fairness regard should also be had to other factors including the duration of the strike, the harm caused by the strike, the legitimacy of the strikers demands, the timing of the strike, the conduct of the strikers and the parity principle. I agree with this view as the consideration of the further factors ensures that the enquiry that is conducted to determine the fairness of the strike-related dismissal is much broader and is not confined to the consideration of factors set out in s not confined to the consideration of factors set out in item 6 of the Code. [2] The respondent must pay each of the second and further applicants, identified in paragraph [1] of this order, compensation equivalent to eight (8) months remuneration calculated at their rates of remuneration at the time of their dismissal in November 2011, which must be paid within 30 days of the date of this judgment. Payment to on strikers JS1106/14 National Union of Metal Workers of South Africa obo Members v Element Six Production (Pty) Ltd (JS1106/14) [2017] ZALCJHB 35 (7 February 2017) contest the decision of the Respondent to pay a token to some of its employees who had performed additional tasks during the course of a protected strike...contravention of sections 5 (1); 5 (2) (c) (iii) and 5(2) (c) (vi) of the LRA. (discrimination against an employee for exercising any right conferred by this Act, then it must be presumed that such discrimination was unfair, until the contrary is established) 18.7The effect of such practices is to side-track employers from addressing legitimate concerns of the striking employees as long as production and business continues as normal during the strike. It can also degrade the status of collective bargaining as a constitutional tool to resolve disputes[11], defeat the purpose of the LRA as identified in its section 1[12], and undermine the rights of employees to freely associate and take part in the lawful activities of their unions; FAWU & others v Pets Product (Pty) Limited [2007] 7 BLLR 781 (LC) (LC) NUM v Namakwa Sands A Division of Anglo American Corporations Limited (2008) 29 ILJ 698 these provisions placed an indirect prohibition on an employer to ask non-striking employees to do the work of striking employees during a protected strike s 4(1) of the BCEA J2876/1 Vector Logistics (Pty) Ltd v National Transport Movement ('NTM") and Others (J2876/17) [2018] ZALCJHB 75 (6 March 2018) In terms of s 4(1) of the BCEA a basic condition of employment constitutes a term of any contract of employment except to the extent that it has been varied in terms of the BCEA or replaced by more favourable terms in a contract. The aggrieved employees entitlements to lunch breaks are part of their contracts of employment. Under s 77(3) of the BCEA, the Labour Court has concurrent jurisdiction with the civil courts concerning contracts of employment. The employees would consequently be able to refer their dispute over the non-compliance with the provisions of s 14(1) to the Labour Court for adjudication as a breach of a condition of employment, quite apart from being entitled to report the matter to the Department of Labour for enforcement as the simpler alternative. For present purposes, what matter is that the dispute is one that may be referred to the Labour Court for adjudication and accordingly, the issue in dispute falls within the ambit of the protected strike prohibition contained in s 65(1)(c). For this reason too, the strike would be unprotected. Strike interdict; strike unprotected by virtue of provision in relationship collective agreement; strike also unprotected because complying with the demand would be in breach of s 14(1) of the BCEA and/or alternatively is a dispute capable of adjudication; interpretation of s 14(1) of BCEA strike becoming moot JA45/16 Sun International Limited v South African Commercial Catering and Allied Workers Union (JA45/16) [2017] ZALAC 24; (2017) 38 ILJ 1799 (LAC); [2017] 8 BLLR 776 (LAC) (3 May 2017) [20] ...That the dispute between the parties ended but a week later simply illustrates that the issue between the parties turned on the particular facts of the case. The dispute is no longer live between the parties and therefore does not deserve the attention of this Court. When a live dispute triggers the application of s76(1)(b) of the LRA, the Labour Court and/or this Court will doubtless deal with the application of the section through the prism of the factual matrix confronted at the time. Mawethu Civils (Pty) Ltd and Another v National Union of Mineworkers and Others (2016) 37 ILJ 1851 (LAC) Counsel for the respondents argued that the appeal has become moot with the passage of time and will have no practical effect. That is not correct. There is a live dispute between the parties about the legal character and consequences of the strike that has continued relevance in the on-going industrial relations in which they are involved. The appellants legitimately seek judicial affirmation of their stance in regard to the appropriate means of resolution of a dispute of this nature. unprotected: ultimatum CA02/2017 County Fair Foods (Epping), a division of Astral Operations Ltd v Food and Allied Workers' Union and Others (CA02/2017) [2018] ZALAC 9; [2018] 8 BLLR 756 (LAC); (2018) 39 ILJ 1953 (LAC) (11 May 2018) County Fair informed staff that annual discretionary bonuses would not be paid due to its financial position. In response, on 15 December 2010, more than 200 employees embarked on an unprotected strike. Three ultimatums were issued to employees. 64 employees returned to work on 15 December 2010 and 58 employees returned on 17 December 2010. All signed a comeback document, which included an undertaking that they would desist from such action, and received a final written warning for their conduct. The second respondents failed to comply with the final ultimatum to return to work on 17 December 2010, despite it being extended to provide additional time for them to do so. County Fair then instituted a lock out. The second respondents returned to work on Monday 20 December 2010, signed the comeback document but were suspended from duty pending disciplinary hearings at which they were found to have committed misconduct and were dismissed. The Labour Court found the dismissals unfair on the basis that the sanction was harsh since the respondents had only remained on strike for an extra 1_ days. County Fair was ordered to reinstate the respondents on a final warning with 6 months back pay. On appeal: found that the respondent employees failure to adhere to final ultimatum distinguished them from their fellow employees who had returned to work in response to the ultimatum. In such circumstances, the dismissal of the respondent employees was fair and the appeal succeeds with costs. ultimatum PA14/16 MTO Forestry (Pty) Ltd and Others v Chemical, Energy, Paper, Printing, Wood and Allied Workers Union (CEPPWAWU) (PA14/16) [2018] ZALAC 21; [2018] 10 BLLR 950 (LAC) (19 July 2018) Mndebele and Others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg Plant) (2016) 37 ILJ 2610 (LAC). The Code does not suggest how the ultimatum should be distributed or required that it must be in writing. Furthermore, it states that the issuing of an ultimatum is not an invariable requirement. The purpose of an ultimatum is not to elicit any information or explanations from the employees but to give them an opportunity to reflect on their conduct, digest issues and, if need to be, seek advice before making the decision whether to heed the ultimatum or not. The ultimatum must be issued with the sole purpose of enticing the employees to return to work, and should in clear terms warn the employees of the folly of their conduct and that should they not desist from their conduct they face dismissal. Because an ultimatum is akin to a final warning, the purpose of which is to provide for a cooling-off period before a final decision to dismiss is taken, the audi rule must be observed both before the ultimatum is issued and after it has expired. In each instance, the hearing may be collective in nature and need not be formal. *picketing rules J 4390 / 18 Sibanye Gold Limited t/a Sibanye Stillwater v Association of Mineworkers and Construction Union and Others (J 4390 / 18) [2018] ZALCJHB 397; (2019) 40 ILJ 898 (LC) (5 December 2018) SA Airways v SA Transport and Allied Workers Union and Others (2013) 34 ILJ 2064 (LC) a particular picketing agreement or picketing rules only applies to a particular strike, and once that strike is resolved, the relevant rules / agreement falls away. Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union and Others (2012) 33 ILJ 998 (LC) at para 13. But the exercise of the right to strike is sullied and ultimately eclipsed when those who purport to exercise it engage in acts of gratuitous violence in order to achieve their ends. When the tyranny of the mob displaces the peaceful exercise of economic pressure as the means to the end of the resolution of a labour dispute, one must question whether a strike continues to serve its purpose and thus whether it continues to enjoy protected status. Verulam Sawmills (Pty) Ltd v Association of Mineworkers and Construction Union and Others (2016) 37 ILJ 246 (LC) at para 15. Not only are picketing rules there to attempt to ensure the safety and security of persons and the employer's workplace, but if they are not obeyed and violence ensues resulting in non-strikers also withholding their labour, the strikers gain an illegitimate advantage in the power play of industrial action, placing illegitimate pressure on employers to settle. purpose of section 69 has been described in SA Airways v SA Transport and Allied Workers Union and Others (2013) 34 ILJ 2064 (LC) what is then exactly the purpose of s 69? The code in item 3(1) gives guidance in this respect, and it is clear from the content thereof that actual strike action is contemplated. Therefore, the very purpose of s 69, as read with the code, is to regulate protest action and demonstration during protected strike action, and to ensure it is lawful and peaceful. However, and considering the provisions of s 69(7), the section is further intended to offer striking employees protection against discipline and undue interference (for example by interdicts) where they conduct picketing in terms of s 69, and this picketing would attract the same protection as a protected strike in terms of s 67. Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2006) 27 ILJ 2681 (LC) at para 31. The matrix of permissible conduct that evolves ultimately as the picketing rules is a particular permutation that balances logistics, the nature of the business, the industrial relations history of the enterprise and the union with the impact of the picket so that the rules are determined not too narrowly or too broadly to exacerbate industrial conflict or obstruct the substantive resolution of the dispute. Thus rules that put the pickets 'out of sight and out of mind' of the employer, a phrase coined in this application, could, on the one hand, prevent intimidation of non-striking workers and customers. On the other hand, it can be counter-productive to workplace peace in the longer term if the picketers became increasingly frustrated as they would be if their picket has little impact. The employer's incentive to resolve the dispute substantively could also diminish if the striking employees are out of sight and out of mind. dismissal procedural and substantive fairness JS424/14 Rasenyalo v Moqhaka Local Municipality (JS424/14) [2019] ZALCJHB 20 (5 January 2019) [38] Section 68(5) of the LRA provides that the participation in a strike that does not comply with the provisions of this Chapter, or conduct in contemplation or in furtherance of that strike, may constitute a fair reason for dismissal and further that in determining whether the dismissal is fair, the Code of Good Practice Dismissal in Schedule 8 must be taken into account. Item 6 Substantive fairness National Union of Metalworkers of South Africa (Numsa) and Others v CBI Electric African Cables (2014) 35 ILJ 642 (LAC) [29] In my view the determination of substantive fairness of the strike-related dismissal must take place in two stages, first under item 6 when the strike-related enquiry takes place and secondly, under item 7 when the nature of the rule which an employee is alleged to have contravened, is considered. It follows that a strike-related dismissal which passes muster under item 6 may nevertheless fail to pass substantive fairness requirements under item 7. This is so because the illegality of the strike is not a magic wand which when raised renders the dismissal of strikers fair (National Union of Mineworkers of SA v VRN Steel (1991) 12 ILJ 577 (LAC)). The employer still bears the onus to prove that the dismissal is fair.[30] In his work Grogan expresses the view that item 6 of the Code is not, and does not purport to be, exhaustive or rigid but merely identifies in general terms some factors that should be taken into account in evaluating the fairness of a strike dismissal. He therefore opines that in determining substantive fairness regard should also be had to other factors including the duration of the strike, the harm caused by the strike, the legitimacy of the strikers demands, the timing of the strike, the conduct of the strikers and the parity principle. I agree with this view as the consideration of the further factors ensures that the enquiry that is conducted to determine the fairness of the strike-related dismissal is much broader and is not confined to the consideration of factors set out in item 6 of the Code. [49] The remaining issue is whether the dismissal was an appropriate sanction. Considering all the evidence before the court, including the seriousness of the misconduct (namely, the violent and unprotected strike), the conduct of the applicant, the refusal to comply with the ultimata, the effect of his conduct on the trust relationship, the trauma that the Municipal Manager and the managers were subjected to and the applicants lack of remorse, I am convinced that the dismissal was an appropriate sanction Procedural fairness Modise and Others v Steve's Spar Blackheath [2000] 5 BLLR 496 (LAC). in our law an employer is obliged to observe the audi rule when he contemplates dismissing strikers. As is the case with all general rules, there are exceptions to this general rule. Some of these have been discussed above. There may be others which I have not mentioned. The form which the observance of the audi rule must take will depend on the circumstances of each case including whether there are any contractual or statutory provisions which apply in a particular case. In some cases a formal hearing may be called for. In others an informal hearing will do. In some cases it will suffice for the employer to send a letter or memorandum to the strikers or their union or their representatives inviting them to make representations by a given time why they should not be dismissed for participating in an illegal strike. In the latter case the strikers or their union or their representatives can send written representations or they can send representatives to meet the employer and present their case in a meeting. In some cases a collective hearing may be called for whereas in others - probably a few - individual hearings may be needed for certain individuals. However, when all is said and done, the audi rule will have been observed if it can be said that the strikers or their representatives or their union were given a fair opportunity to state their case. That is the case not only on why they may not be said to be participating in an illegal strike but also why they should not be dismissed for participating in such strike. section 5 of the LRA: Paying bonusses to non-strikers JS102/14 National Union of Mineworkers obo Members v Cullinan Diamond Mine A Division of Petra Diamond (Pty) Ltd (JS102/14) [2019] ZALCJHB 43; (2019) 40 ILJ 1826 (LC) (1 March 2019) Where an employee alleges unfair discrimination on an arbitrary ground, the alleged arbitrary ground must be pejorative and somewhat linked to any of the listed grounds. Paying a bonus to certain employees and not to others for reasons related to operational requirements does not amount to discrimination as contemplated in section 5 (1) of the LRA. [20]...Therefore, if the reason for differentiation is something else other than participating in a strike action, then section 5 (1) is not infringed. Whitcher AJ in Ngcobo [D268/2011 delivered on 08 May 2012] went to the extent of saying the following: I say so, first, taking note of the concessions made by the applicants witness under cross-examination to the effect that striking members of the union at other outlets were indeed paid bonuses. This, as a matter of logic, puts paid to the applicants complaint under section 5 of the Act that the strike was the cause of bonuses being withheld from them....[21] ...There is overwhelming evidence that no employee was paid any annual performance bonus. Makhuras evidence is that the respondent actually cancelled the payment of an annual performance bonus and replaced it with something else. [34] In my view, this reasoning seems to ignore the fact that participating in a strike action is an individual right of an employee. If an employee decides not to exercise this right on his own without being coerced by the employer, then the employee cannot be denied the contractual benefits simply because other employees are exercising the right to strike. I fail to understand the policy considerations that would underpin the reasons not to reward in any manner an employee who chose not to strike. This reasoning suggests that an employer should not reward any hard work to employees during the time when the full labour contingence has been withdrawn. Such could not have been the intention of the legislature when the section 5 protection was enacted. To show that that was not the intention, section 67(3) provides that despite subsection (2), which insulates a striking employee from delict and breach of contract, an employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike. The corollary of this provisions must be that by remunerating a non-striking employee, the employer does not offend the LRA. It must be remembered that even in a strike situation, an employer must still run its business. [37] I further fail to understand why the approach of the appellate division in SACCAWU v OK Bazaars (1929) Ltd[[1995] 7 BLLR 1 (A)] is wrong in any manner. The Court in there held that because strikes are disruptive, measures to discourage them are to be encouraged and were legally permissible. Among the measures are the offerings of financial inducement to non-strikers. It was further held that threat of withholding a bonus from strikers or actual withholding thereof does not affect workers freedom to strike. Grosskopf JA, writing for the majority concluded thus: It would in my view be unreasonable to deprive workers who did not strike of a bonus merely because some others, perhaps even very few, engaged in a strike with which the non-striking workers might have no sympathy.[17] [43] Section 6 of the EEA prohibits unfair discrimination. I have already found that the discrimination in section 5 of the LRA is not one contemplated in this section. That being so, I must conclude that section 6 has not been contravened. [44]...The discrimination prohibited by the EEA is one that is unfair, one that impairs human dignity. When an employee is not paid any form of a bonus his or her dignity is not being impaired. The reason fathomed by the applicant for such non-payment is that it is because they participated in a strike action. Participation in a strike action is not a listed ground, nor could it be analogous to any of the listed grounds. Secondary strike J420/19 AngloGold Ashanti Ltd t/a AngloGold Ashanti and Others v Association for Mineworkers and Construction Union and Others (J420/19, J424/19, J430/19, J431/19, J432/19, J438/19, J439/19, J440/19, J443/19 and J444/19) [2019] ZALCJHB 169; (2019) 40 ILJ 1552 (LC); [2019] 7 BLLR 646 (LC) (15 March 2019) Applicants to suffer considerable loss; secondary strike is unreasonable Applicants to suffer considerable loss; secondary strike is unreasonable an extension or amendment to a collective agreement ex post facto the wage agreement. J 353/19 Association of Mineworkers and Construction Union v Sibanye Gold Limited t/a Sibanye Stillwater and Others (J 353/19; J 380/19) [2019] ZALCJHB 89; (2019) 40 ILJ 1607 (LC); [2019] 8 BLLR 802 (LC) (20 March 2019) [74] To sum up: the ex post facto extension of a collective agreement is not unlawful or ultra vires and it takes effect by the operation of law if the formal requirements of section 23(1)(d) have been met. [100] To allow minority unions, bound by an extended collective agreement, to strike over demands relating to a specific period either prior to the signing of the collective agreement or the extension thereof, will result in chaos and uncertainty, the direct antithesis of labour peace. dismissal and selective reinstatement JS 215/14 AMCU obo LS Rantho and Others v SAMANCOR Western Chrome Mines (JS 215/14 ;JS 406/14) [2019] ZALCJHB 85 (17 April 2019) Rickett & Colman (SA) (Pty) Ltd v CWIU 1991 12 ILJ 806 (LAC) [77] Most of the arguments as above have been addressed, safe to reiterate that selective dismissal and re-employment of employees is not per se unfair as circumstances may justify such conduct Fidelity Guards Holdings (Pty) Ltd v Transport and General Workers Union and Another [1998] JOL 3333 (LAC) at para 45. it was held that a duty was upon an employer when selectively taking back other employees, to demonstrate that a legitimate basis of differentiation between those reinstated and those not reinstated existed. The criteria as evident from the settlement agreement itself was inter alia whether or not the employees had participated in the strike, whilst at the same time having valid final written warnings. Those that were not reinstated had not only participated in the unprotected strike, but had also been on valid final written warnings for similar conduct in accordance with the provisions of the settlement agreement. Unprotected strike ultimatums JS172/2014 Chemical, Energy, Paper, Printing, Wood & Allied Workers Union and Others v Polyoak Packaging (Pty) Ltd (JS172/2014) [2019] ZALCJHB 105 (24 April 2019) Mndebele and Others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg Plant) (2016) 37 ILJ 2610 (LAC) at para 27 The Code does not suggest how the ultimatum should be distributed or required that it must be in writing. Furthermore, it states that the issuing of an ultimatum is not an invariable requirement. The purpose of an ultimatum is not to elicit any information or explanations from the employees but to give them an opportunity to reflect on their conduct, digest issues and, if need to be, seek advice before making the decision whether to heed the ultimatum or not. The ultimatum must be issued with the sole purpose of enticing the employees to return to work, and should in clear terms warn the employees of the folly of their conduct and that should they not desist from their conduct they face dismissal. Because an ultimatum is akin to a final warning, the purpose of which is to provide for a cooling-off period before a final decision to dismiss is taken, the audi rule must be observed both before the ultimatum is issued and after it has expired. In each instance, the hearing may be collective in nature and need not be formal County Fair Foods (Epping), a division of Astral Operations Ltd v Food and Allied Workers' Union and Others [2018] 8 BLLR 756 (LAC); (2018) 39 ILJ 1953 (LAC); See also Modise and Others v Steves Spar Blackheath 2000 ILJ 519 (LAC) [104] a dismissal for failing to heed an ultimatum would be justified. In this case, I am willing to accept that the time period stipulated in the last ultimatum leading to the dismissals was insufficient. sit-in constitutes strike JA20/2020 Sasol Mine Limited v Nhlapo and Others (JA20/2020) [2021] ZALAC 28 (9 September 2021) From the evidence, it was apparent that those who remained on the appellants premises after their shift, after having been instructed not to do so, had retarded or obstructed work through their physical and intentional conduct even though off-duty and that by so doing they too had participated in the unprotected industrial action.[7] As much was made clear in Association of Mineworkers & Construction Union & others v AngloGold Ashanti [(2016) 37 ILJ 2320 (LC) at para 185.] where the court held that in certain circumstances, a failure to obey a lawful instruction amounts to strike action. The fact that the appellant immobilised machinery as a result of the strike did not alter the fact that the respondents had participated in the action. Transport & Allied Workers Union of SA obo Ngedle & others v Unitrans & Chemical (Pty) Ltd (2016) 37 ILJ 2485 (CC) at para 106. The dismissal of the respondent employees was procedurally and substantively fair. strike dismissal: consistency JA20/2020 Sasol Mine Limited v Nhlapo and Others (JA20/2020) [2021] ZALAC 28 (9 September 2021) [37] Item 6(1) of Schedule 8 to the LRA makes it clear that the substantive fairness of a dismissal as a result of participation in an unprotected strike, like other misconduct, does not always deserve dismissal and must be determined in the light of the facts of the case, including the seriousness of the contravention of the LRA, attempts made to comply with the LRA and whether or not the strike was in response to unjustified conduct by the employer. Mzeku and Others v Volkswagen SA (Pty) Ltd and Others it was stated that:[[2001] ZALAC 8; 2001 (4) SA 1009 (LAC); (2001) 22 ILJ 1575 (LAC) at para 17.] Once there is no acceptable explanation for the [workers] conduct, then it has to be accepted that the [workers] were guilty of unacceptable conduct which was a serious breach of their contracts of employment . . . The only way in which the [workers] dismissal can justifiably be said to be substantively unfair is if it can be said that dismissal was not an appropriate sanction. [39] The Constitutional Court in Transport and Allied Workers Union of South Africa obo Ngedle and Others v Unitrans Fuel and Chemical (Pty) Ltd Limited[[2016] ZACC 28; 2016 (11) BCLR 1440 (CC); [2016] 11 BLLR 1059 (CC); (2016) 37 ILJ 2485 (CC) at para 50.] made it clear that in determining the appropriateness of a dismissal as a sanction for striking workers conduct, consideration must be given to whether a less severe form of discipline would have been more appropriate, as dismissal is the most severe sanction available. An illegal strike has been recognised by our courts to constitute serious and unacceptable misconduct by workers.[Performing Arts Council of the Transvaal v Paper Printing Wood and Allied Workers Union and Others [1993] ZASCA 201; 1994 (2) SA 204 (A) at 216E.] In this matter, the respondents acted outside the bounds of the recognition agreement entered into with the appellant, failed to adhere to the unequivocal ultimata issued by the appellant and refused to comply with the appellants instructions to halt their dangerous and unlawful industrial action. In such circumstances, dismissal has been found by our courts to be an appropriate sanction.[SA Clothing and Textile Workers Union and Others v Berg River Textiles A Division of Seardel Group Trading (Pty) Ltd (2012) 33 ILJ 972 (LC) at para 30 ] The dismissal of the respondent employees was procedurally and substantively fair. requirements necessary to prove common purpose and payment of damages JS1181/2013 Bam and Others v BME (a member of Omnia Group (Pty) Ltd) (JS1181/2013) [2021] ZALCJHB 419 (17 November 2021) [194] In National Union of Metalworkers of SA on behalf of Dhludhlu & others v Marley Pipe Systems SA (Pty) Ltd (2021) 42 ILJ 1924 (LAC) the LAC recapped the approach to the doctrine of common purpose or derivative misconduct in the employment context:[16] The difficulties inherent in determining the individual culpability of an employee in the context of collective misconduct were considered by the Constitutional Court in Dunlop [National Union of Metalworkers of SA on behalf of Nganezi & others v Dunlop Mixing & Technical Services (Pty) Ltd & others (Casual Workers Advice Office as Amicus Curiae) 2019 (5) SA 354 (CC); (2019) 40 ILJ 1957 (CC)] In that matter, the court stated at para 46 that: Evidence, direct or circumstantial, that individual employees in some form associated themselves with the violence before it commenced, or even after it ended, may be sufficient to establish complicity in the misconduct. Presence at the scene will not be required, but prior or subsequent knowledge of the violence and the necessary intention in relation thereto will still be required.[17] The court recognised that employees may participate in and associate with misconduct in many ways, both direct and indirect, while cautioning that no one should be held accountable where no evidence can be adduced to substantiate the claim against individuals, solely on the basis of being part of the group.[18] In Food & Allied Workers Union & others v Amalgamated Beverage Industries Ltd, [(1994) 15 ILJ 1057 (LAC)] which predated the current LRA, more than 100 employees emerged from a room in which a driver was left seriously injured after an assault. In that matter, the court, relying on R v Blom [1939 AD 188] found that all the evidence presented was consistent with the inference that all of the employees had been part of the group which perpetrated the assault. This was so although on an abstract appreciation of the evidence this inference was not the most probable in that no alternative inferences had been advanced by the employees which had a foundation in the evidence. As a result, the court had to select that inference which was the more plausible or natural one from those that presented themselves. It was found that the inference drawn that all employees were involved became the most probable only because none of the individuals concerned came forward, either at the individual disciplinary hearings, or in the Industrial Court, to absolve themselves, a failure which was weighed in the balance against them. With no evidence that it was only a majority of the appellants who were present, the court found that the evidence was equally consistent with all employees having been present at the scene.[19] In the current matter reliance was placed by the Labour Court on the doctrine of common purpose to find all of the appellant employees responsible for the misconduct. All of the employees had embarked on an unprotected strike. There was direct evidence which proved that 12 employees had engaged in the assault. The remaining 95 employees were identified as having been in the group of strikers and to have directly associated with the misconduct. The 41 remaining employees, in respect of whom the appeal is pursued, were not identified through direct evidence as having been part of the group. It follows that for the inference to be drawn that they had associated themselves with the assault including before it commenced, or after it ended, whether through direct participation or association, such an inference must be consistent with all the proved facts.[20] The proven facts were that all employees had reported for duty, left their workstations and embarked on the strike. All employees, save for Mr Mokoena, were on the respondents premises and away from their workstations at the time of the assault. The striking employees, all of whom were NUMSA members, moved together towards Mr Steffens office, holding placards and presenting written demands which sought his removal. The employees sought out Mr Steffens and remained present on the scene during the course of and after his assault, with none of the striking employees coming to his aid. Apart from Mr Ledwaba no employee took advantage of the opportunities availed, both prior to and during the disciplinary hearing or before the Labour Court hearing, to distance themselves from the events of the day.[21] In its approach to the circumstantial evidence available to it, it is the task of the court to select that inference which is the more plausible or natural one from those that present themselves. In having regard to the possible inferences available to be drawn, it is noteworthy that, as in FAWU, no alternative inferences founded in the evidence were advanced by the employees. There was no evidence that it was only 107 of the appellants, in respect of whom the appeal is no longer pursued, who were present on the scene of the assault. The undisputed evidence was that all the appellant employees had left their workstations and participated in the strike. The employees wanted to speak to Mr Steffens in the canteen and, when he did not arrive, they moved to the main gate and towards his office with demands that included his removal. There was no evidence that any of the 148 appellant employees distanced him- or herself from the actions of the group and the clear evidence was that the assault on Mr Steffens was perpetrated by members of the group of striking employees. None of the employees intervened to stop the assault and assist Mr Steffens, nor did they disassociate in any way from the assault before, during or after it. In fact, the undisputed evidence was that the striking employees celebrated the assault after the fact. It followed in the circumstances, having regard to the proven facts, that the inference drawn that all employees were involved in or associated themselves with the assault became the most probable and plausible.[22] In KPMM Road & Earthworks (Pty) Ltd [Association of Mineworkers & Construction Union & others v KPMM Road & Earthworks (Pty) Ltd (2019) 40 ILJ 297 (LAC)] this court took issue with the failure of the Labour Court to have careful regard to the established principles of common purpose in the context of collective misconduct. In Makhubela v S [2017 (2) SACR 665 (CC)] the Constitutional Court, relying on S Mgedezi & others [1989 (1) SA 687 (A)], set out the requirements necessary to prove common purpose , namely that the individual must have been shown to have been present at the scene where the assault occurred; to have been aware of the assault; have intended to make common cause with those who perpetrated the assault; have manifested some common purpose with the perpetrators of the assault by performing an act of association with the conduct of the others; and have possessed the requisite mens rea. These requirements were also considered in S v Thebus & another [2003] ZACC 12; [2003 (6) SA 505 (CC)] and in Dewnath v S Dewnath v S [[2014] ZASCA 57] it was held that: The most critical requirement of active association is to curb too wide a liability. Current jurisprudence, premised on a proper application of S v Mgedezi, makes it clear that (i) there must be a close proximity in fact between the conduct considered to be active association and the result; and (ii) such active association must be significant and not a limited participation removed from the actual execution of the crime.[23] In Dunlop, the court stated that association with the misconduct before it commenced or after it ended may be sufficient to establish complicity in the workplace context, with it not required that an employee be present at the scene. However, prior or subsequent knowledge of the misconduct and the necessary intention in relation to it is still required. This moves the requirements to prove common purpose in the workplace outside of the strict requirements set out in the case law from Mgedezi. It allows an employee to be held to account for collective misconduct where the employee associated with the actions of the group before or after the misconduct, even if not present on the scene; where the employee had prior or subsequent knowledge of the misconduct; and he or she held the necessary intention in relation to it.[9] [2] Mr S Mpofu is liable to the Respondent for the damage caused to the boom gate at the main entrance to the Respondents premises on 11 September 2013. The Respondent may enrol the matter for determination of the payment of any just and equitable compensation due by Mr Mpofu under s 68(1)(b) of the Labour Relations Act, 66 of 1995, arising from the aforesaid damage. protected vs unprotected strike JS316/18 NEHAWU obo Coetzee and Others v Kakamas Water Users Association (JS316/18) [2021] ZALCJHB 447 (8 December 2021) [82] In SA Commercial Catering and Allied Workers Union and Others v Sun City[(2018) 39 ILJ 436 (LC) at para 81.] this Court held that: The distinction between a protected and unprotected strike is not an academic one. It is one that ought to have consequences. The Act establishes dispute resolution procedures that are inexpensive, expeditious and efficient. If the employees felt aggrieved, they could have and should have explored legitimate remedies to address their concerns. Constitutional Court: secondary strike CCT 233/20 Association of Mineworkers and Construction Union and Others v Anglo Gold Ashanti Limited t/a Anglo Gold Ashanti and Others (CCT 233/20) [2021] ZACC 42 (12 November 2021) [20] Furthermore, the enquiry into reasonableness required a consideration of the form and duration of the anticipated secondary strike including the extent of the strikes impact, the sector in which it occurred, the number of employees involved and their conduct. In conducting a proportionality analysis to assess the reasonableness of the secondary strikes on the respondents, the Labour Court held that the secondary strikes would result in severe disruptions to the business of the secondary employers.[Anglo Gold Ashanti Limited t/a Anglo Gold Ashanti v Association for Mineworkers and Construction Union (2019) 40 ILJ 1552 (LC) (Labour Court judgment) at paras 273-5 and 278. The order of the Labour Court was upheld on appeal in Association of Mineworkers and Construction Union v Anglogold Ashanti Limited t/a Anglogold Ashanti [2020] ZALAC 45; (2020) 41 ILJ 2763 (LAC) (Labour Appeal Court judgment).] [21] On the law, the Labour Court acknowledged that the effect of the secondary strikes on the primary employer did not necessarily mean that there had to be a nexus between the primary and secondary employers. It held, however, that it was difficult to conceive how a secondary strike could have a direct or indirect effect on the primary employers business without some relationship of sorts between the two employers.[Id at para 219 with reference to SALGA v SAMWU [2007] ZALC 43; [2008] 1 BLLR 66 (LC) (SALGA I).] On the facts, the Labour Court concluded that the anticipated secondary strikes would have no direct or indirect effect on Sibanyes business.[19] Accordingly, the Labour Court declared the secondary strikes unprotected with no order as to costs.[20] Aggrieved by the outcome, AMCU applied for leave to appeal, which the Labour Court refused with costs. [31] Essentially, this appeal turns on the substantive requirements for lawful secondary strikes in terms of section 66(2)(c).[36] Specifically, the question raised is whether section 66(2)(c) imports the principle of proportionality in assessing the lawfulness of secondary strikes. More specifically, the question is whether section 66(2)(c) factors in a balancing of the impact of secondary strikes on secondary employers, on the one hand, with their effect on the primary employer on the other hand. Thus, if secondary strikes impact disproportionately harshly on secondary employers, as a party uninvolved in the primary strike, would secondary employers be entitled to interdict the secondary strikes under section 66(3)? [67] The procedural requirements for a strike are infinitely more onerous than for a secondary strike. A strike must be preceded by conciliation, deadlock and notice to the employer. All this takes time before a strike can commence. Four months lapsed between AMCU commencing negotiations and the primary strike. In the case of secondary strikes, no conciliation, no deadlock, and no dialogue are prescribed as prerequisites. Once the primary strike is lawful, all that remains to be done is for the trade union to give seven days’ notice to the secondary employer of its employees intention to embark on a secondary strike.[87] Cumulatively, the absence of prior engagement, the brevity of the notice and the fact that the secondary employer and its employees have no interest in the outcome of the primary strike, distinguish the secondary employer from the primary employer. Secondary employers having employees who belong to other trade unions that are not engaged in the secondary strike, adds another dynamic to a situation already complicated by multi-dimensional power play. First, the critical requirement is for a secondary strike to have an effect. The word possible lowers the threshold to mean something less than probable not actual[93] but more than notional. Third, the effect of the secondary strike must be on the business of the primary employer. If a relationship in which the secondary employer is able to influence market sentiment and ratings agencies that, in turn, impact adversely on the commodity price, the share price and the valuations of the primary employer, that would be another example. Fourth, the assessment of the effect is, unsurprisingly, directed at the primary employer. Fifth, the reference to the effect on the primary employer does not imply that the secondary employer is excluded altogether from the assessment. The impact on the secondary employer comes into the analysis in interpreting whether the nature and extent of the secondary strike is reasonable in relation to the effect that the secondary strike may have. [87] It follows that if a secondary strike is incapable of having any effect whatsoever on the business of a primary employer, that would not be reasonable. That would be the end of the enquiry. [109]...Thus, on the one extreme, if secondary strikes have no effect on the primary employer, or, on the other extreme, if the effect is disproportionately harsh on secondary employers, they would be entitled to interdict the strike under section 66(3). Enforcement of interdict against employees on strike who are employed in essential services was warranted – Labour Relations Act 66 of 1995, s 65(1(d)(i)... – Existence of exceptional circumstances and irreparable harm – Whether a section 18 order was warranted against the entire strike – Enforcement of interdict against employees on strike who are employed in essential services was warranted – JA19/2023 NEHAWU v Minister For The Public Service And Administration and Others (JA19/2023) [2023] ZALAC 7 (13 March 2023) "[30] To obtain relief under section 18 in this matter, three requirements must therefore be present: (i) exceptional circumstances, in terms of section 18(2), to justify reversing the ordinary rule of suspension of the order pending an appeal; (ii) proof on a balance of probabilities, in terms of section 18(3), that the Minister and the DPSA will suffer irreparable harm if the operation and execution of the order is not given interim effect; and (iii) in terms of section 18(3), that NEHAWU and its members will not suffer irreparable harm if the order is immediately put into operation. [30] To obtain relief under section 18 in this matter, three requirements must therefore be present: (i) exceptional circumstances, in terms of section 18(2), to justify reversing the ordinary rule of suspension of the order pending an appeal; (ii) proof on a balance of probabilities, in terms of section 18(3), that the Minister and the DPSA will suffer irreparable harm if the operation and execution of the order is not given interim effect; and (iii) in terms of section 18(3), that NEHAWU and its members will not suffer irreparable harm if the order is immediately put into operation. [30] To obtain relief under section 18 in this matter, three requirements must therefore be present: (i) exceptional circumstances, in terms of section 18(2), to justify reversing the ordinary rule of suspension of the order pending an appeal; (ii) proof on a balance of probabilities, in terms of section 18(3), that the Minister and the DPSA will suffer irreparable harm if the operation and execution of the order is not given interim effect; and (iii) in terms of section 18(3), that NEHAWU and its members will not suffer irreparable harm if the order is immediately put into operation. [30] To obtain relief under section 18 in this matter, three requirements must therefore be present: (i) exceptional circumstances, in terms of section 18(2), to justify reversing the ordinary rule of suspension of the order pending an appeal; (ii) proof on a balance of probabilities, in terms of section 18(3), that the Minister and the DPSA will suffer irreparable harm if the operation and execution of the order is not given interim effect; and (iii) in terms of section 18(3), that NEHAWU and its members will not suffer irreparable harm if the order is immediately put into operation." "[53]...The Labour Court is inundated with applications to interdict unlawful conduct, violence and intimidation in the course of protected strikes, such as those granted against NEHAWU and its members in relation to the current strike, with the SAPS directed to enforce such orders in the face of repeated instances of apparent police inaction. It is perhaps appropriate to note that the inaction of the SAPS in the face of criminal behaviour is extraordinary. It has become commonplace for the SAPS to walk away from scenes of criminal behaviour in a strike context, calling it a private or civil matter. Criminal conduct is neither private nor a civil matter. The SAPS are obliged to maintain law and order. It is their duty to act to enforce the law and not to await a court to order them do so. " 1. The strike action, picket, or any other form of industrial action by NEHAWU, its members and employees who are employed in an essential service, as defined in section 61(1)(d) of the Labour Relations Act 66 of 1995, which commenced on 6 March 2023 is interdicted with immediate effect and NEHAWU and all such essential service employees are restrained and prevented from continuing with or participating in any such strike, picket or any other form of industrial action; unprotected: dismissal after ultimatum JS 703/2018 Association of Mineworkers and Others v Opsicol Mining Services CC (JS 703/2018) [2023] ZALCJHB 177 (5 June 2023) [17] Turning next to the fairness of the sanction of the individual applicants’ dismissal, the LAC has held that a two-stage enquiry must be conducted. The first is an enquiry into the matters referred to in item 6 of the Code; the second requires a consideration of the guidelines established by item 7. (See NUMSA v CBI Electric African Cables [2014] 1 BLLR 31 (LC).) "[18] Where, as in the present instance, the employer issues an ultimatum to return to work or face dismissal and employees heed the ultimatum and return to work, without more, an employer is not entitled to dismiss an employee for participation in the strike. In AMCU obo Rantho and 188 others & another v Samancor Western Chrome Mines the LAC said the following (footnotes omitted): [24] Item 6 of Schedule 8 of the Labour Relations Act (“the LRA”) offers clear guidance regarding the purpose and implications of an employer issuing an ultimatum during an unprotected strike. While making it clear that participation in a strike that does not comply with the provisions of the LRA is misconduct, Item 6 recognises that such conduct does not always deserve dismissal. The substantive fairness of a dismissal for participation in an unprotected strike must be determined in light of the facts, including the seriousness of the contravention, attempts made to comply with the LRA, and whether or not the strike was in response to unjustified conduct by the employer. Item 6(2) aims at avoiding precipitate dismissals by means of cooling-off measures. It provides in relevant part: ‘Prior to a dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it.’ [25] The object of an ultimatum is to give striking employees the opportunity to reconsider their action. It must, therefore, be clear and unambiguous and give the employees sufficient time to reflect. The ultimatum issued by Samancor were not entirely clear but indicated that dismissal would only follow after non-compliance with a final ultimatum to be issued after unjustified non-compliance with the preliminary ultimatum. Samancor also reserved its right to take disciplinary action against the employees for participating in unprotected strike action and for their conduct during the strike. [26] It is well-established in our law that where illegally striking employees obey an ultimatum and return to work within the stipulated time, the employer will not be entitled to dismiss them. To hold otherwise would render the purpose of an ultimatum nugatory (own emphasis). Strikes are functional to the social good of collective bargaining. Thus, the right to strike is constitutionally enshrined as a legitimate means of advancing orderly collective bargaining. A precipitate strike subverts the process by undermining the opportunity for resolution of the collective dispute by negotiation. The misconduct present in participation in an un-procedural strike is the subversion of the process. The purpose of an ultimatum is to put the negotiation process back on track and to end the precipitous action. If it achieves that purpose, dismissal normally should not follow because that too would be precipitate action undermining legitimate and orderly collective bargaining. [27] For those reasons, our law regards an ultimatum by the employer as a waiver of the right to dismiss for the period of its duration. A party who has once approbated (waived a right arising under the contract, including the right to terminate it) cannot thereafter reprobate (seek to enforce that right).[1] If the employees refuse to return to work, the waiver implicit in the ultimatum will lapse.[2] But if they comply with the ultimatum, the employer is ordinarily precluded from dismissing the employees for the act of striking, but not necessarily for other misconduct committed during the strike. Where an employer after issuing an ultimatum wishes to reverse or amend the terms of the waiver prior to it expiring, it may do so in appropriate circumstances provided it has a good reason and gives the striking workers timeous notice of the change to prevent them from being unfairly prejudiced thereby." [19] It follows that the respondent was not entitled to take disciplinary action against or dismiss the individual applicants solely on account of their participation in an unprotected strike. However, the Rantho judgment does not preclude an employer from dismissing an employee for acts other than participation in the strike. The judgment acknowledges as much – as the above quotation records, in paragraph 27, the court’s view that if employees comply with an ultimatum, the employer is ordinarily precluded from dismissing employees for the act of striking, but not necessarily for other misconduct committed during the strike. [23] In summary: a consideration of the evidence reveals that no acts of misconduct were committed during the strike, the strike was peaceful and of limited duration, there was no intimidation of employees or other parties during the course of the strike, and that employees returned to work once an ultimatum was issued. The respondent was unable to quantify any financial loss that it suffered consequent to the strike. Both of the individual applicants had relatively long service and clean disciplinary records. As I have indicated, the respondent makes much of the contention that the individual applicants failed to comply with their duty of good faith towards it, and their obligation to serve the respondent honestly and faithfully. What this contention ignores is the dual role of the shop steward, and the tensions that arise in circumstances where members act unlawfully. What matters in the present instance is how the individual applicants responded to the situation. are awarded compensation in a sum equivalent to six months’ remuneration strike or protest action, or conduct in furtherance of such DA31/22 CCI South Africa (Pty) Ltd v African National Congress Youth League and Others (DA31/22) [2024] ZALAC 7; [2024] 5 BLLR 435 (LAC); (2024) 45 ILJ 969 (LAC) (6 March 2024) "[14] As to the cases relied on by the Appellant, the Court a quo found all of them distinguishable on the facts presented by the Appellant. With the exception of Vodacom (Pty) Ltd and others v National Association of South African Workers and another 2019] ZALCJHB 49; (2019) 40 ILJ 1882 (LC) (Vodacom). (Vodacom), she found that because there was no conduct in furtherance of a strike or protest action – because its employees continued working – the Appellant could not rely on those cases. As to the Vodacom case, she found that the Appellant did not plead a violation of their property rights, so that case too did not find application in the matter. For all these reasons, she concluded that the Labour Court lacked jurisdiction to hear the matter. " Damages from strike action JA119/2022 South African Commercial Catering and Allied Workers Union v Massmart Holding Limited and Others (JA119/2022) [2024] ZALAC 13; (2024) 45 ILJ 1610 (LAC) (29 April 2024) Jurisdiction – Damages from strike action – Dismissed exception on jurisdiction – Labour Court’s jurisdiction to order payment of just and equitable compensation for any loss attributable to protected strike – Unlawful conduct and breaches of picketing rules during course of protected strike were not constitutionally protected – Unlawful conduct committed during protected strike falls outside immunity – Appeal dismissed – Labour Relations Act 66 of 1995, s 68(1)(b). [3]...In issue is whether such a claim is governed by section 68(1)(b) or whether it may only be pursued under the common law of delict in the High Court. There is no dispute that any unlawful conduct and breaches of the picketing rules that occurred during the course of the protected strike were not constitutionally protected. [12]...It was found that to limit an aggrieved party to the remedy of a common law delictual claim in the civil courts in such circumstances, would undermine the recognised role of the specialist Labour Courts in the determination of labour disputes, within the context of the comprehensive legislative framework regulating labour relations that the LRA represents. In arriving at this conclusion, the Court found that the immunities established by sections 67(2) to (6) are not absolute, with section 67(8) providing that the provisions of the subsections “do not apply to any act in contemplation or in furtherance of a strike or lock-out, if that act is an offence”. [23] A plain reading of the language used in section 68(1)(b) supports an interpretation of the provision that the reference to “…or any conduct in contemplation or in furtherance of a strike or lock-out, that does not comply with the provisions of this Chapter” is not restricted to conduct which occurs within the context of a strike or lock-out that does not comply with the provisions of Chapter IV. This is so given the inclusion of the words “or any conduct”, read in context, make it clear that the conduct referred to is that which occurs “within the context of a strike or lock-out”. Having regard to the ordinary rules of grammar and syntax, it is apparent that, with regard had to the apparent purpose to which the provision is directed, the reference in section 68(1) to “any strike or lock-out, or any conduct in contemplation or in furtherance of a strike or lock-out, that does not comply with the provisions of this Chapter” is intended to refer to both to any strike or lock-out, or any conduct, that does not comply with Chapter IV. From the reference to “any conduct” which occurs within the context of “a” strike or lock-out, it is clear that such conduct may occur within the context of any strike or lock-out and not only one that does not comply with the provisions of Chapter IV. 25] It follows therefore from the language of the provision, considered in context, and with regard had to the purpose to which the provision is directed, that section 17 of the LRAA, 2002 broadened the scope of section 68(1)(b) through the inclusion of the words “or any conduct”. The Labour Court therefore holds exclusive jurisdiction to order the payment of just and equitable compensation in the case of any unlawful conduct committed in furtherance of a strike, whether that strike is protected or unprotected. [28] The fact that section 67(2) provides that a person does not commit a delict or breach of contract by taking part in either a protected strike or lock-out or “any conduct in contemplation or in furtherance of protected strike or a protected lock-out” and section 67(6) states that no civil legal proceedings may be instituted against any person for such participation or conduct, but section 67(8) provides that these two provisions do not apply “to any act in contemplation or in furtherance of a strike or lock-out, if that act is an offence”, does not warrant a different interpretation of section 68(1). definition J1577/23 Department of Public Works and Roads, North-West v National Union of Public Service and Allied Workers Union (J1577/23) [2024] ZALCJHB 99; [2024] 5 BLLR 492 (LC); (2024) 45 ILJ 1003 (LC) (12 February 2024) [16] The definition of strike was considered by the Labour Appeal Court in TSI Holdings (Pty) Ltd & Others v National Union of Metalworkers of SA & Others[2] which held as follows: "[17] This authority clarifies, in general terms, that the conduct of employees will constitute a strike if it meets three requirements: it is concerted, it hinders or obstructs work, and it is for the purpose of resolving a grievance, demand or issue in dispute. [18] In this matter, on the applicant’s version, the conduct of its employees, during October and November 2023, met the definitional requirements of strike action. The conduct hindered or obstructed work, it was concerted, and it was for the purpose of resolving a demand – that all the employees engaged on the EPWP be employed on indefinite term employment contracts. In the circumstances, there can be no question that the jurisdiction of this court was correctly engaged when the interim order was granted, given that the misconduct interdicted was in furtherance of an unprotected strike.[3] " "Requirements for final interdict [20] The applicant must satisfy the requirements for a final interdict which, of course, are well embedded in our law.[5] Importantly, for our purposes, to obtain a final interdict, there must be a continuing injury or a reasonable apprehension of future harm occurring.[6] [21] This principle has recently been confirmed in UDM and another v Lebashe Investment Group (Pty) Ltd and others[7] where the Constitutional Court said: “An interdict is not a remedy for the past invasion of rights: it is concerned with the present and future. The past invasion should be addressed by an action for damages. An interdict is appropriate only when future injury is feared.” [22] Here, the applicant cannot demonstrate that there is any possibility that the Union or its members are violating, or will violate, any of its rights in future. In these circumstances, the rule nisi falls to be discharged." strike notice J283/2024 Road Accident Fund v National Union of Metalworkers of South Africa (NUMSA) and Another (J283/2024) [2024] ZALCJHB 201 (13 May 2024) [38] In the absence of the strike notice crisply stating what the RAF needed to do to avert strike action, the scope of the strike demands could certainly not be gleaned from it, even if the RAF was aware of some of the main ones. Part of the purpose of a strike notice is to give the employer a clear indication what it must agree to if it wishes to avert the impending strike[12]. The strike notice in question was devoid of factual content regarding the nature of the demands. If such a notice was considered acceptable, the same notice could be issued for virtually any strike irrespective of the demands in question. That would defeat an important purpose of issuing a strike notice. [44] In conclusion, the strike notice was defective, and the RAF was entitled to interdict strike action solely on that basis. "[37] However, the strike notice issued by the union was completely devoid of any particularity about the demands the union was making which, if acceded to by the RAF, would make the strike unnecessary. Rather, it stated that the purpose of the strike could include any grievances of members or matters of mutual interest. The demands mentioned in Numsa’s press release two days prior to the strike notice could all be encapsulated under the umbrella of such a generic and featureless description. Although the issues relating to the call centre changes were mentioned, the dominant emphasis in the press release concerned the removal of the CEO because of his alleged mismanagement of the RAF. It called on workers to strike in support of that demand amongst others. There was correspondence between the parties on 12 and 13 March 2024, in which it is apparent that they were engaging with each other, but from those letters it is not clear what all the demands on the table were at that time, which comprised the subject matter of the intended strike action." CCMA certificate J 402/24 SA Steel Mills (Pty) Ltd v Meyerton and Others (J 402/24) [2024] ZALCJHB 210 (20 May 2024) "[26] It follows that the certificate of outcome especially for the purposes of industrial action, does not decide whether any such action contemplated would be protected or not[14]. The issue is whether the demand is one that entitles employees to strike over. In this case, other than NUMSA having indicated the nature of its dispute, the mere fact that all that was recorded on the certificate of outcome was; ‘Mutual interest dispute’ does not make the strike unprotected in that a demand for the recognition of full time shop steward falls within that category of disputes. [27] In the light of the above factors and conclusions, it follows that upon a proper engagement of the merits of the urgent application, and the respondents’ answering papers, it follows that in the absence of demonstrating any limitations under section 65 of the LRA, the strike action embarked upon by NUMSA and its members on 16 April 2024 enjoyed protection. That protection is inclusive of that provided under section 67(2) and (4) of the LRA, safe to the extent that the employees may have committed misconduct during the protected strike action." "Strike – real issues in dispute considered – demands relating to suspension and then investigation of management employee – constitutes unlawful demand – employer required to act unlawfully to adhere to demand – strike action not competent / permitted – strike unprotected Strike – demand relating to selective application of discipline (inconsistency) – issue concerns consideration of fairness in unfair dismissal disputes – rights dispute susceptible to arbitration / adjudication under LRA – s 65(1)(c) applicable – strike unprotected" 2024/133059 DPD Laser Logistics (Pty) Ltd v Democratic True Revolutionary Union of South Africa (DETRUSA) and Others (2024/133059) [2024] ZALCJHB 478 (27 November 2024) [34] What is often misunderstood is that a matter of mutual interest is not necessarily limited to an issue of interest. A matter of mutual interest can encompass both what is commonly known as a rights dispute and an interest dispute, as both can legitimately form the subject matter of a demand by a trade union. Therefore, and at a conceptual level, even a dispute of right would qualify to be susceptible to protected strike action pursuant to a demand by a trade union. "[12] In Department of Home Affairs and Another v Public Servants Association and Others[13] the Court pertinently held: ‘What constitutes a matter of mutual interest is not defined in the LRA. The term ‘serves to define the legitimate scope of matters that may form the subject of collective agreements, matters which may be referred to the statutory dispute-resolution mechanisms, and matters which may legitimately form the subject of a strike or lock-out’. ‘Interest’ and ‘rights’ disputes are both matters of mutual interest. …’" [45] The ultimate point seems clear. For a trade union and / or employees to demand that an employee be dismissed, and this demand then forms the basis of contemplated strike action, it is my view that it would principally not be a lawful demand, as it would require the employer to contravene the provisions of the LRA. It is only where the trade union and / or the employees demand that the employee be fairly dismissed, and then substantiates this demand by producing sufficient evidence that there is a proper substantive reason to dismiss the employee, that it could be argued that the demand would not be unlawful and strike action would be permitted. Such a case must be clearly made out before Court. "47] Closer to the demand by DETRUSA and the employees that Mathebula be suspended, is the judgment in Calgan Lounge (Pty) Ltd v National Union of Furniture and Allied Workers of SA and Others[33] where it was held: ‘It is trite that to simply demand the removal of a member of management without proper cause and fair process is an unlawful demand, and certainly to demand from an employer to simply in effect expel a majority recognised trade union flies in the face of the right of freedom of association and chapter III of the LRA. This kind of demand relating to the first respondent can only be seen as anti-union activity which is expressly prohibited by the LRA. …’ And in Walsh v Superintendent General: Eastern Cape Department of Health and Others[34] the Court similarly said: ‘In the present instance, none of the demands for the applicant’s removal from office remotely suggest that he should be afforded the benefit of fair process prior to his removal. On the contrary, what the unions demanded was the applicant’s forcible removal. Further, the unions and their members in fact resorted to violence to further this end, to the extent that this court was required to intervene. In the circumstances, the unions’ demand that the applicant be removed from his position as CEO of the hospital without due process was thus unlawful. …’" Picketing rules breached DA21/23 Shave and Gibson Packaging (Pty) Ltd v African Meat Industry and Allied Trade Union and Another (DA21/23) [2025] ZALAC 31 (28 May 2025) Interdict restricting picketing to a demarcated area – Employees continued picketing outside designated area – CCMA later established formal picketing rules but non-compliance persisted – Dismissals of identified employees were substantively fair due to deliberate and prolonged breach of picketing rules and court order – Justified dismissal for gross insubordination – Dismissals of unidentified employees were unfair – Appeal partially upheld. [21] The consequence is that the company succeeded in proving the existence of a workplace rule pertaining to the place for picketing,[16] one that the company had consistently sought to enforce through its approaches to the Labour Court and CCMA. From the time the order was served, the employees contravened that rule by picketing at the entrance boom and in the space between the boom and the demarcated area, instead of restricting the picket to the demarcated area as ordered. The rule was reasonable and, considering the evidence, particularly the various ways in which the contents of the order was communicated, the employees were aware, or could reasonably be expected to have been aware of the rule. There is no suggestion to the contrary, or that the rule was applied inconsistently. In any event, the importance of complying with a court order, also in a workplace context, is so well established and widely known that it would be superfluous to require further forms of communication. In effect, the employees acted insubordinately in continuing to picket where they did and the company succeeded in proving its alternative charge to contempt of court. There is no merit to the suggestions that the rule was ‘in dispute’, that the court had been misled in granting the order, or that there had been due compliance with the order. The demarcated area was contravened without justification. The remaining question is whether dismissal was an appropriate sanction. (Complete)

Labour Law cases decided in the South African Courts (Highlights and updated 1997 to 6 2025 [Copyright: Marius Scheepers/15.8.1]) Urgent interdict, Urgent relief. Urgent Interdict sec 197 (i) the applicant had to show either a clear right or a prima facie right in the case of interim relief; (ii) a well-grounded apprehension of irreparable harm existed if the relief was not granted on an urgent bass; (iii) the balance of convenience favoured the granting of the relief on an urgent basis; and (iv) the applicant had no other satisfactory relief available. P683/10 Independent Municipal & Allied Trade Union & Another v Department of Health: Eastern Cape Province & Others Restraint of trade Authority challenged, but irrelevant if authorized to depose to affidavit Not urgent J1333/12 Staar Surgical (Pty) Ltd v Lodder recruitment State: ito 38 of Constitution; join all candidates J1516/12 SA Municipal Workers Union v Mopani District Municipality semi-urgency Alleged semi-urgency. A matter was either urgent or it was not and there was no reference in the legislation to semi-urgent interim relief. (PA 1/12) [2013] ZALAC 17 De Beer v Minister of Safety and Security and Another Disciplinary enquiry Employee withdrawing from disciplinary enquiry after his application for a presiding officers recusal was refused. Failed to demonstrate that no suitable alternative remedy was available to him or that he would suffer irreparable harm if he could not obtain immediate relief. the applicant was not seeking to rectify an ongoing wrong but to rectify a past infringement of his alleged right not to be dismissed in the absence of compliance with the SMS Handbook. (J 1603/14) [2014] ZALCJHB 240 Ngobeni v Minister of Communications and Others Urgency J1671/16 AMCU and Others v Northam Platinum Ltd and Another (J1671/16) [2016] ZALCJHB 309; [2016] 11 BLLR 1151 (LC); (2016) 37 ILJ 2840 (LC) (19 August 2016) 20] As stated above, urgent applications are governed by Rule 8. In considering Rule 8, the Court in Jiba v Minister: Department of Justice and Constitutional Development and Others(2010) 31 ILJ 112 (LC) at para 18. See also Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W) said: Rule 8 of the rules of this court requires a party seeking urgent relief to set out the reasons for urgency, and why urgent relief is necessary. It is trite law that there are degrees of urgency, and the degree to which the ordinarily applicable rules should be relaxed is dependent on the degree of urgency. It is equally trite that an applicant is not entitled to rely on urgency that is self-created when seeking a deviation from the rules.[21] What would an applicant who seeks to make out a case of urgency then have to show? In Mojaki v Ngaka Modiri Molema District Municipality and Others[(2015) 36 ILJ 1331 (LC) at para 17.] the Court referred with approval to the following dictum from the judgment in East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others:[2012] JOL 28244 (GSJ) at para 6.]. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules it will not obtain substantial redress.[22] Similarly, and in Maqubela v SA Graduates Development Association and Others[ (2014) 35 ILJ 2479 (LC) at para 32. See also Transport and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC) at para 11.] dealt with the consideration of urgency as follows: Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. As Moshoana AJ aptly put it in Vermaak v Taung Local Municipality: ‘The consideration of the first requirement being why is the relief necessary today and not tomorrow, requires a court to be placed in a position where the court must appreciate that if it does not issue a relief as a matter of urgency, something is likely to happen. By way of an example if the court were not to issue an injunction, some unlawful act is likely to happen at a particular stage and at a particular date.'[23] Where an applicant seeks final relief, the Court must be even more circumspect when deciding whether or not urgency has been established.[10] In simple terms, the applicant must make out an even better case of urgency. In Tshwaedi v Greater Louis Trichardt Transitional Council[11] the Court said: An applicant who comes to court on an urgent basis for final relief bears an even greater burden to establish his right to urgent relief than an applicant who comes to court for interim relief. .[24] But it is not just about the applicant. Another consideration is possible prejudice the respondent might suffer as a result of the abridgement of the prescribed time periods and an early hearing.[12][25] Also, urgency must not be self-created been self-created by an applicant, as a consequence of the applicant not having brought the application at the first available opportunity.[13][26] A final consideration where it comes to urgency is expedition when taking action. In other words, the more immediate the reaction by the litigant to remedy the situation by way of instituting litigation, the better it is for establishing urgency.[14] But the longer it takes from the date of the event giving rise to the proceedings, the more urgency is diminished. In short, the applicant must come to Court immediately, or risk failing on urgency. In Valerie Collins t/a Waterkloof Farm v Bernickow NO and Another the Court held: if the applicants seeks this Court to come to its assistance it must come to the Court at the very first opportunity, it cannot stand back and do nothing and some days later seek the Courts assistance as a matter of urgency. irreparable harm CWIU v Sasol Fibres(1999) 20 ILJ 1222 (LC) at 1227B C. The general rule that financial hardship and loss of income are not considered to be grounds for urgent relief was upheld in Malatji v University of the North[2003] ZALC 32(LC) and Nasionale Sorghum Bierbrouery (Edms) Bpk (Rantoria Divisie) v John NO en Andere(1990) 11 ILJ 971 (T). Harley v Bacarac Trading 39 (Pty) Ltd (2009) 30 ILJ 2085 (LC) at para 8. If an applicant is able to demonstrate detrimental consequences that may not be capable of being addressed in due course and if an applicant is able to demonstrate that he or she will suffer undue hardship if the court were to refuse to come to his or her assistance on an urgent basis, I fail to appreciate why this court should not be entitled to exercise a discretion and grant urgent relief in appropriate circumstances. Each case must of course be assessed on its own merits. Pending disciplinary hearing J1876/17 Magoda v Director-General of Rural Development and Land Reform and Another (J1876/17) [2017] ZALCJHB 305; [2017] 12 BLLR 1267 (LC); (2017) 38 ILJ 2795 (LC) (28 August 2017) interim relief interdicting continuation of disciplinary enquiry pending review of procedural rulings made by disciplinary chairperson prima facie right to review not established application for interim relief dismissed Restraint of trade J2761/17 Shoprite Checkers (Pty) v Jansen and Another (J2761/17) [2017] ZALCJHB 503 (13 December 2017) Magna Alloys and Research SA (Pty) Ltd v Ellis (Magna Alloys) 1984 (4) SA 874 (A) The effect of Magna Alloys was to reverse this position, by placing an onus on the party sought to be restrained, to prove on a balance of probabilities, that the restraint was unreasonable. Since then the position has been that restraints of trade are enforceable unless they are proved, by the party sought to be restrained, to be unreasonable. Ball v Bambalela Bolts (Pty) Ltd [2013] 9 BLR 843 (LAC). Because the right of a citizen to freely choose a trade, occupation or profession is protected in terms of section 22 of the Constitution and a restraint constitutes a limitation of that right, the onus may well be on the party who seeks to enforce the restraint to prove that it is a reasonable or justifiable limitation of that right of the party sought to be restrained. (see Fidelity Guards Holdings (Pty) Ltd t/a Fidelity Guards v Pearmain 2001 (2) SA 853 (SE) at 862; Canon KwaZulu Natal (Pty) Ltd t/s Canon Office Automation v Booth and another 2005 (3) SA 205 (N). Also compare Affordable Medicines Trust and others v Minister of Health of RSA and another 2005 (6) BCLR 529 (CC))[4] Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA). the Supreme Court of Appeal held that the question of the reasonableness or unreasonableness of a restraint is always a value judgment which involves the weighing up of two policy considerations: the public interest which requires that parties to a contract comply with their contractual obligations (pacta servanda sunt) and the principle that a citizen should be free to follow a trade, occupation or profession of her choice. Plascon Evans Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A). The rule is applicable in labour matters; see Frys Metals (Pty) Ltd v NUMSA and Others [2003] 2 BLLR 140 (LAC) 28.] The value judgment must be based on factual findings, after any disputes have been resolved in the respondents favour by the application of the Plascon Evans rule.[7] Thus the Supreme Court of Appeal held in Reddy v Siemens Telecommunications that if the facts, assessed in this way, disclose that the restraint is reasonable then the party seeking the restraint order must succeed. If on the other hand, those facts show that the restraint is unreasonable, then the party sought to be restrained must succeed. What this calls for is a value judgment, rather than a determination of what facts have been proved, and the incidence of the onus accordingly plays no role.[8] Basson v Chilwan and others 1993 (3) SA 742 (A). following questions:(a) Is there an interest of the one party which is deserving of protection at the termination of the agreement?(b) Is such interest being prejudiced by the other party?(c) If so, does such interest so weigh up qualitatively and quantitatively against the interest of the other party that the latter should not be economically inactive and unproductive?(d) Is there any other facet of public policy having nothing to do with the relationship between the parties but which requires that the restraint be maintained or rejected?[10] Kwik Kopy (SA) (Pty) Ltd v Van Haarlem and another 1999 (1) SA 472 (W). court added a further consideration, namely whether the restraint is wider than what is necessary in order to protect the protectable interest. [37.] The first question for determination in terms of the Basson v Chilwan test is whether the applicant has an interest worthy of protection after the termination of the agreement, that is, a protectable interest. It is by now well established that a protectable interest may be of two broad kinds: The first kind consists of the relationships with customers, potential customers, suppliers and others that go to make up what is compendiously referred to as the trade connections of the business, being an important part of its incorporeal property known as goodwill. The second kind consists of all confidential matter which is useful for the carrying on of the business and which could therefore be used by a competitor, if disclosed to him, to gain a relative competitive advantage.[14]...[38.] As far as trade connections are concerned, it is well established that a protectable customer or supplier relationship exists where an employee has personal knowledge of, and influence over, the customers (or suppliers) of her employer so as to enable her, if the competition was allowed, to induce the customer or supplier to follow her to the new employer.[15] [39.] In relation to confidential information, there is no closed list of the type of information that may be confidential. However, certain requirements must be satisfied in order for information to properly qualify as confidential in this context. These are the following:(a) The information must involve and be capable of application in trade or industry, that is, it must be useful.(b) The information must not be public knowledge and public property, that is, objectively determined, it must be known only to a restricted number of people or to a closed circle.(c) The information objectively determined must be of economic value to the person seeking to protect it[16] and be objectively useful to a competitor.[17] Urgency JR122/2017 Majola v Member of the Executive Council for Roads and Transport: Gauteng Provincial Government and Others (JR122/2017) [2017] ZALCJHB 54 (21 February 2017) Gallagher v Norman's Transport Lines (Pty) Ltd 1992 (3) SA 500 at 502E-503 D. [19] Urgency is further dictated upon by the exigency and circumstances of the particular case, and it is trite that a matter cannot be regarded as urgent simply on the say-so of the Applicant. In equal measure, a kneejerk approach in truncating the time periods will not be tolerated[7], nor will the courts countenance a belated approach for relief. Thus, it is expected that in order for any arguments on urgency to be sustained, the Applicant must have acted with due haste, when knowledge of the Respondent's prejudicial behaviour or actions is gained. National Union of Metalworkers of South Africa & others v Bumatech Calcium Aluminates (2016) 37 ILJ 2862 (LC) at paragraphs 22 to 26, and in particular, at para 26 where Snyman AJ held that Urgency must not be self-created by an Applicant, as a consequence of the Applicant not having brought the application at the first available opportunity. In other words, the more immediate the reaction by the litigant to remedy the situation by way of instituting litigation, the better it is for establishing urgency. But the longer it takes from the date of the event giving rise to the proceedings, the more urgency is diminished. In short, the Applicant must come to Court immediately, or risk failing on urgency. In Valerie Collins t/a Waterkloof Farm v Bernickow NO and Another the Court held: if the Applicants seeks this Court to come to its assistance it must come to the Court at the very first opportunity, it cannot stand back and do nothing and some days later seek the Courts assistance as a matter of urgency. (Authorities and citations omitted) The court, in further exercising its discretion, will also consider whether the interest of justice supports the stay of execution pending the finalization of the review or rescission application Road Accident Fund v Stydom 2001 (1) SA 292 Thus where an injustice would otherwise be done, the Court would be inclined to grant such a stay Stay writ of execution J62/2017 Ekurhuleni Metropolitan Municipality v SAMWU obo Ngawe and Another (J62/2017) [2017] ZALCJHB 31 (7 February 2017) In exercising its discretion to grant a stay of execution, a court is not required to take the merits of the underlying attack on the causa of the writ into account. Gois t/a Shakespeares Pub v van Zyl & Others (2003) 24ILJ2302 (LC) at paragraphs 32 - 36 In the light of the above, an applicant is accordingly not required to satisfy the court of the existence of prospects of success in the principal dispute, as an application for a rescission, review or variation of an award qualifies as an attack on the causa under lying the award Chillibush Communications (Pty) Ltd v Michelle Gericke & others (2010) 31 ILJ 1350 (LC) at para 18 return day: urgency J3455/17 Sun International Limited and Another v SACCAWU and Others (J3455/17) [2018] ZALCJHB 71 (2 March 2018) return day of an interim strike interdict requires the court on the return day to revisit whether or not the application was urgent when making a final order. Polyoak (Pty) Ltd v Chemical Workers Industrial Union & others (1999) 20 ILJ 392 (LC) stay writ of execution J4002/2018 Fidelity Security Services (Pty) Ltd v The Sheriff: Roodepoort and Another (J4002/2018) [2018] ZALCJHB 387 (22 November 2018) [11] This Court may, in terms of section 145(3) of the LRA, stay the enforcement of the arbitration award pending its decision. It is common cause that a rescission application has since been launched in respect of the court order, although this was done some four months after the court order was granted. To an extent that the underlying causa for the writ is still the subject matter of an ongoing dispute between the parties and further that the applicant has no alternative remedy that will provide the similar relief it seeks in this application and that it requires to protect its rights, I am of the view that the interests of justice combined with quest for finality on this matter requires that a discretion be exercised in favour of the applicant. stay writ of execution C1230/2018 Passenger Rail Agency of South Africa SOC Ltd (PRASA) v Sheriff for the District of Goodwood and Others (C1230/2018) [2018] ZALCJHB 423 (27 December 2018) Gois t/a Shakespeares Pub v van Zyl & Others 2011 (1) SA 148 (LC) At para 37 (a) A court will grant a stay of execution where real and substantial justice requires it or where injustice would otherwise result.(b) The court will be guided by considering the factors usually applicable to interim interdicts, except where the applicant is not asserting a right, but attempting to avert injustice.(c) The court must be satisfied that: I. the applicant has a well-grounded apprehension that the execution is taking place at the instance of the respondent(s); and ii. irreparable harm will result if execution is not stayed and the applicant ultimately succeeds in establishing a clear right.(d) Irreparable harm will invariably result if there is a possibility that the underlying causa may ultimately be removed, i.e. where the underlying causa is the subject-matter of an ongoing dispute between the parties.(e) The court is not concerned with the merits of the underlying dispute-the sole enquiry is simply whether the causa is in dispute. [18] The requirement to consult is even more applicable when the transfer constitutes a demotion. Although the fact that the third respondent could elect the store to which he wished to go indicate that there was limited consultation, but this did not extend to the decision to transfer. It was thus unfair for the applicant not to consult with the third respondent prior to taking the decision to transfer him. Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services and Others (2008) 29 ILJ 2708 (LAC) at para 88 largely uncontradicted evidence that the appellant has adduced in regard to the status, prestige and responsibilities of his position jurisdictional basis for the courts interference in the incomplete disciplinary hearing J1309/21 Futshane v Millard NO and Others (J1309/21) [2021] ZALCJHB 432 (3 November 2021) [18] In Booysen v Minister of Safety and Security & Others[(2011) 32 ILJ 112 (LAC).] the Labour Appeal Court (LAC) held that the Labour Court has jurisdiction to interdict any unfair conduct including disciplinary action, but it should do so only in exceptional circumstances. In Lieutenant Shezi v SAPS and Others[Unreported case no. J8521/20, dated 15 September 2020.] (Shezi) this Court held that an applicant seeking intervention in incomplete disciplinary hearings must establish first that the application embodies a proper cause of action on the intervention sought, and secondly, that the circumstances warranting intervention are exceptional. The Court made it clear that it lacks jurisdiction to determine claims based on an alleged unlawful or unfair conduct during the course of disciplinary proceedings. [19] In Shezi, this Court stated the following at paragraphs [8] to [10]: -[8] There is however a more fundamental objection to jurisdiction, one that the court is obliged to raise, and which relates to the nature of the relief sought by the applicant. The issue is whether the court has jurisdiction to entertain a claim for final relief applicant seeks relief on the basis of what is alleged to be unlawful on the part of the employer, without locating the claim in a cause of action justiciable by this court. (see Phahlane v SAPS and others J736/2020, 11 August 2020).[9] This court is a creature of statute is inherent powers authority and standing equal to that of the division of the High Court but only in relation to matters and his jurisdiction see section 951 two of the LRA there is a misconception that the court has jurisdiction over war disputes that arise in the context of an employment relationship it does not some 20 years ago the judge president bemoaned the fact that the court did not enjoy jurisdiction over employment relations disputes and urged the legislature to remedy this shortcoming regrettably the legislation did not respond to the squalid import terms the jurisdiction of the squad remains to be determined in terms of the act as well as it was drafted in 1996.[10] Section 157(1) provides that subject to the Constitution and s 173, and except where the LRA provides otherwise, the court has exclusive jurisdiction in respect of all matters that elsewhere in terms of the LRA or any other law are to be determined by the court. What this requires is that a party referring a dispute to this court for adjudication must necessarily point to a provision of the LRA or some other law that confers jurisdiction on this court to adjudicate the dispute. It is thus incumbent on an applicant referring a matter to this court for adjudication to identify the provision in the LRA, or any other law, which confers jurisdiction on this court to entertain the claim. Jurisdiction, of course, is to be determined strictly on the basis of the applicants pleadings; the merits of the claim are not material at this point. What is required is the determination of the legal basis for the claim, and then an assessment with the court has jurisdiction over (see Chirwa v Transnet Limited [2007] ZACC 23; 2008 (4) SA 367 (CC) at par 155, Gcaba v Minister of Safety and Security (2010) 1 SA 238 (CC) para 75).[20] The Court went on to state the following at paragraphs [13] and [14]:[13] Further, this court has no jurisdiction to determine the fairness of employer action where the nature of the dispute is one that requires it to be determined by arbitration. Section 157(5) provides as follows: Except as provided for in section 158(2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute of this Act or any employment law requires the dispute to be resolved through arbitration.[14] Where disputes concern the fairness of any procedure adopted by the employer in the course of disciplinary action, it will be record the section 188 of the LRA provides that an employer must prove that any dismissal was effected in accordance with a fair procedure. Any dispute about the existence or otherwise of a fair procedure must be referred to arbitration in determined in terms of section 191 by the CCMA bargaining council have jurisdiction. It follows that this court has no jurisdiction, at least not in the first instance, to make any decisions about the fairness otherwise of the procedure adopted by the employer in the course of exercising disciplinary action. [22] In Ngobeni v PRASA Cres and Others[[2016] JOL 36588 (LC) at paras [13] and [14].] (Ngobeni) this Court observed that urgent applications where it is asked to intervene in disciplinary hearings, run the risk of bypassing the statutory dispute resolution mechanisms of the LRA and this should be discouraged. [27]The applicants pleaded case does not, in my view, form a jurisdictional ground for this courts interference. The cause of action is premised on an unfair labour practice. This court lacks jurisdiction as a Court of first instance. No exceptional circumstances are pleaded for this courts interference in an incomplete hearing. jurisdiction to intervene in incomplete disciplinary proceedings J 1476/2021 Phaahla v Minister of Justice and Correctional Services and Others (J 1476/2021) [2022] ZALCJHB 9 (7 February 2022) [16] It is trite that this Court has jurisdiction to intervene in incomplete disciplinary proceedings, but only in exceptional circumstances. Thus, this Court does not lightly intervene in an internal disciplinary process.[Booysen v Minister of Safety and Security and others (2011) 32 ILJ 112 (LAC) at para 17.] The principle was enunciated as set out below in Jiba v Minister: Department of Justice and Constitutional Development[(2010) 31 ILJ 112 (LC) at para 17.]:Although the court has jurisdiction to entertain an application to intervene in uncompleted disciplinary proceedings, it ought not to do so unless the circumstances are truly exceptional. Urgent applications to review and set aside preliminary rulings made during the course of a disciplinary enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters best dealt with in arbitration proceedings consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings under s 145.[17] There is a policy rational to this approach and in Trustees, National Bioinformatics Network Trust v Jacobson and Others[(2009) 30 ILJ 2513 (LC) at para 4.], this Court noted that there were at least two reasons why it ought not routinely to intervene in incomplete arbitration proceedings. It observed that the same considerations applied to incomplete disciplinary hearings and held: The first is a policy -related reason for this court to routinely intervene in incomplete arbitration proceedings would undermine the informal nature of the system of dispute resolution established by the Act. The second (related) reason is that to permit applications for review on a piecemeal basis would frustrate the expeditious resolution of labour disputes. In other words, in general terms, justice would be advanced rather than frustrated by permitting CCMA arbitration proceedings to run the course without intervention by this court.[18] Much later in in Ngobeni v Prasa Cres and Others[[2016] 8 BLLR 799 (LC) at para 14.] the Court said the following in the reasons for judgment: The urgent roll in this court has become increasingly and regrettably populated by applications in which intervention is sought, in one way or another, in workplace disciplinary hearings. The present application is a prime example and is exacerbated by the preceding application to review and set aside Advocate Cassims ruling on recusal.... The abuse goes further what the applicant effectively seeks to do is to bypass the statutory dispute resolution structures in the form of the CCMA and bargaining councils. One of the primary functions of the structures is to determine the substantive and procedural fairness of unfair dismissal disputes. Applicants who move applications on an urgent basis in this court for orders that effectively constitute findings of procedural unfairness, bypass and undermine the statutory dispute resolution system. The courts proper role as one of supervision over the statutory dispute resolution body; it is not a court of first instance in respect of the conduct of a disciplinary hearing, nor is its function to micromanage discipline in workplaces. Interim relief: interdict the respondents from advertising the vacant post pending the finalization of the review application J 288/2023 Gololo v MEC Education, Mpumalanga and Others (J 288/2023) [2023] ZALCJHB 38 (8 March 2023) [4] The applicant contends that he has a prima facie right given that he is qualified for the post and enjoys the recommendation of the governing body. On this basis, the applicant contends that the post should not be advertised. He submits that he will suffer irreparable harm should the order not be granted, more particularly in that is permanently an opportunity of career progression, it would be difficult for him to regain the post, that he is being unfairly treated and ‘sabotaged for no reason’. The respondent disputes these contentions, and submits that the applicant is not precluded from applying for the advertised post. There is further reason why the applicant has no prima facie right to the relief he seeks. In Oliphant v Thembelihle Local Municipality & another (2023) 44 ILJ 413 (NCK), Tlaletsi JP dismissed a similar application in circumstances where the court found that it could not be said that the applicant would suffer irreparable harm should the post to which he laid claim be filled prior to the determination of his unfair dismissal dispute. The court observed that the primary remedy for an unfair dismissal was reinstatement, with retrospective effect. Further, should the municipality employ someone in the position contested by the applicant, it would run the risk of creating a problem for itself in the event of the reinstatement order. It would either have to terminate the contract entered into with the new employee, or come to some arrangement with that employee or the applicant. The court said further: On 17 November 2022, the school’s governing body recommended that the applicant be appointed to the upgraded post of principal. Despite that recommendation, on 10 January 2023, the first respondent issued a directive requesting that the post of principal be advertised. In the directive, certain objections were raised regarding the appointment of the applicant. Part A, which serves before the court, seeks to interdict the respondents from advertising the vacant post pending the finalization of the review application contained in part B to review and set aside the decision made by the first respondent to reject the recommendation of the governing body that the applicant be appointed the post of principal. 1. The application is dismissed. the nature of P106/23 National Education, Health and Others v Walter Sisulu University and Others (P106/23) [2024] ZALCJHB 57 (29 January 2024) "[45] In Economic Freedom Fighters v Gordhan and Others[11] (EFF), the Constitutional Court restated that the nature of an interim interdict is relief granted pending litigation. It is intended to protect the rights of an aggrieved party pending litigation to establish the respective rights of the parties. The criteria for the grant of interim interdictory relief as set out in Setlogelo v Setlogelo[12] were repeated, being a prima facie right, a reasonable apprehension of irreparable harm, the balance of convenience and no other satisfactory remedy. Further, the Constitutional Court in EFF stated as follows at paragraph [42]: ‘In addition, before a court may grant an interim interdict, it must be satisfied that the applicant for an interdict has good prospects of success in the main review. The claim for review must be based on strong grounds which are likely to succeed. This requires the court adjudicating the interdict application to peek into the grounds of review raised in the main review application and assess their strength. It is only if a court is convinced that the review is likely to succeed that it may appropriately grant the interdict.’" [58] The balance of convenience favours of the WSU. If the interdict is not granted, the applicants still have an opportunity to approach the WSU to make representations as to why relocating would not be practicable and should the issue not be resolved, the provisions of section 189 of the LRA would be followed. If the interdict is granted and the relocations are halted (if for a moment, one considers this to be in circumstances where the applicants have established a prima facie right), the WSU would be placed in a position where students arrive on campus in 2024 and there would be no employees available to attend to them. This would be untenable given that the strategy has been adopted to enhance efficiencies and the faculties have been reduced. Disciplinary proceedings: because his legal team is unavailable. J102/24 Luphondo v Pieterse and Another (J102/24) [2024] ZALCJHB 97 (13 February 2024) "8] It took some time before the vexed issue of jurisdiction of this court, to intervene in incomplete disciplinary processes (where the CCMA or bargaining council was mandated to determine procedural fairness after the dismissal) would finally be settled. [9] In Booysen v SA Police Service & another[3] (hereafter “Booysen”) Cheadle AJ explored, in depth, the structure of the LRA, and its relationship to the constitutional right to fair labour practices. The learned Acting Judge held that this court did not have jurisdiction to intervene in uncompleted disciplinary processes. This was followed by Jiba v Minister of Justice & Constitutional Development[4] where Van Niekerk J, held that the court indeed had jurisdiction to intervene, but it may not do so in a manner which would finally determine the dismissal dispute and the court must intervene only in “exceptional circumstances”. [10] On appeal, the LAC finally settled the issue in Booysen[5] holding that this court may intervene in incomplete disciplinary processes if fairness was at issue, even though the CCMA or bargaining councils would subsequently to determine, on arbitration, whether the dismissals were fair." "26] In addition, where an applicant seeks to interdict a functionary from exercising a public power, a court may only grant an interim interdict, when it is satisfied that the applicant has good prospects of success in the main review.[9] The Constitutional Court stated: “It is only if a court is convinced that the review is likely to succeed that it may appropriately grant the interdict. The rationale is that an interdict which prevents a functionary from exercising public power conferred on it impacts on the separation of powers and should therefore only be granted in exceptional circumstance.”[10] [27] Accordingly, this court is required to assess whether the applicant has reasonable prospects of success in the review. What follows does not finally determine whether the applicant’s rights under the NPA Act have been or will be breached. This is merely a “peek into” the merits, as is required in an application of this nature." [31] In the unreported judgment of Tshavungwa v National Director of Public Prosecutions and others (TPD 42117/06 dd 19 March 2008) the court held that the dismissal was unlawful because it was unauthorized. The court held that it was axiomatic that, given that deputy directors are appointed by the Minister, they should be discharged by the Minister. With respect, I differ. The NPA Act carefully spells out the procedures for the appointment process, and the discharge process. The protections accorded to each position (i.e. the procedures for discharge) are commensurate with the level of authority and permanency applicable. It was no accident that the legislature did not provide protection for Acting Directors and Deputy Directors. This is consistent with the intention - providing additional statutory protection only to those that require it. Everyone else can rely on the constitutional right against unfair dismissal – protection which cannot lightly be sniffed at. "3] He alleges that only the Minister can determine how he to be disciplined, because of section 12, 13 and 14 of the National Prosecuting Authority Act No. 32 of 1998 as amended (hereafter the “NPA Act”) [4] The application is opposed by second respondent, hereafter referred to as the “NPA”." temporary interdict (Pending the finalisation of the review proceedings contemplated in paragraph 3 of this order,) J 75/2024 South African Municipal Workers Union v Letsimeng Local Municipality and Another (J 75/2024) [2024] ZALCJHB 106 (5 March 2024) "[8] The well-known authority in relation to the application of this test is Webster v Mitchell[4]. The headnote reads as follows: ‘In an application for a temporary interdict, applicant’s right need not be shown by a balance of probabilities; it is sufficient if such right is prima facie established, though open to some doubt. The proper manner of approach is to take the facts as set out by the applicant together with any facts set out by the respondent which applicant cannot dispute and to consider whether, having regard to the inherent probabilities, the applicant could on those facts obtain final relief at a trial. The facts set up … in contradiction by respondent should then be considered, and if serious doubt is thrown upon the case of applicant he could not succeed. In considering the harm involved in the grant or refusal of a temporary interdict, where a clear right to relief is not shown, the Court acts on the balance of convenience. If, though there is prejudice to the respondent, that prejudice is less than that of the applicant, the interdict will be granted, subject, if possible, to conditions which will protect the respondent.’" "[65] In National Gambling Board v Premier, Kwazulu-Natal and others,[9] the Constitutional Court considered interdict proceedings and held that: ‘An interim interdict is by definition “a court order preserving or restoring the status quo pending the final determination of the rights of the parties. It does not involve a final determination of these rights and does not affect their final determination.” The dispute in an application for an interim interdict is therefore not the same as that in the main application to which the interim interdict relates. In an application for an interim interdict the dispute is whether, applying the relevant legal requirements, the status quo should be preserved or restored pending the decision of the main dispute. At common law, a court's jurisdiction to entertain an application for an interim interdict depends on whether it has jurisdiction to preserve or restore the status quo. It does not depend on whether it has the jurisdiction to decide the main dispute. [66] The relief sought by the Applicant is interim in nature, pending the final determination of a review application. The Applicant has satisfied the requirements for an interdict and is entitled to interim relief pendente lite." Disciplinary proceedings – Intervention by court – Labour Court having jurisdiction to intervene in incomplete disciplinary hearings – Such intervention only to take place in exceptional circumstances – Applicant failing to establish exceptional circumstances justifying intervention – Requesting court to finally determine whether conduct of respondent was procedurally fair – Not competent to request Labour Court to make such determination on final basis – Application dismissed. 2024/113589 National Union of Metalworkers of South Africa (NUMSA) obo Members v BMW (South Africa) (Pty) Ltd (Reasons) (2024/113589) [2024] ZALCJHB 399 (18 October 2024) [53] In my view, none of the above grounds of complaint raised by NUMSA, even as they stand, show the existence of exceptional circumstances.[34] In simple terms, there is nothing special, unique, exceptional about these complaints, nor is there any grave injustice, that would justify urgent intervention by this Court. Arbitration 2025/031003 Independent Development Trust v Commission for Conciliation, Mediation and Arbitration and Another (2025/031003) [2025] ZALCJHB 114 (16 March 2025) [12] It has long been reiterated in Ngobeni v PRASA CRES and others[4] that there are at least two reasons why the Court should be slow in intervening in on-going arbitration proceedings. The first was a policy related reason in that routine interventions would undermine the informal nature of the system of dispute resolution established by the Labour Relations Act[5] (LRA). The second reason was that to permit reviews on a piece-meal basis would frustrate the expeditious resolution of labour disputes. It was further held that justice would be advanced rather than frustrated by permitting CCMA arbitration proceedings to run the course without intervention by this Court[6]. These principles are apposite in this case. Urgent Relief Urgent relief jurisdiction to intervene in incomplete disciplinary proceedings J 1476/2021 Phaahla v Minister of Justice and Correctional Services and Others (J 1476/2021) [2022] ZALCJHB 9 (7 February 2022) [16] It is trite that this Court has jurisdiction to intervene in incomplete disciplinary proceedings, but only in exceptional circumstances. Thus, this Court does not lightly intervene in an internal disciplinary process.[Booysen v Minister of Safety and Security and others (2011) 32 ILJ 112 (LAC) at para 17.] The principle was enunciated as set out below in Jiba v Minister: Department of Justice and Constitutional Development[(2010) 31 ILJ 112 (LC) at para 17.]:Although the court has jurisdiction to entertain an application to intervene in uncompleted disciplinary proceedings, it ought not to do so unless the circumstances are truly exceptional. Urgent applications to review and set aside preliminary rulings made during the course of a disciplinary enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters best dealt with in arbitration proceedings consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings under s 145.[17] There is a policy rational to this approach and in Trustees, National Bioinformatics Network Trust v Jacobson and Others[(2009) 30 ILJ 2513 (LC) at para 4.], this Court noted that there were at least two reasons why it ought not routinely to intervene in incomplete arbitration proceedings. It observed that the same considerations applied to incomplete disciplinary hearings and held: The first is a policy -related reason for this court to routinely intervene in incomplete arbitration proceedings would undermine the informal nature of the system of dispute resolution established by the Act. The second (related) reason is that to permit applications for review on a piecemeal basis would frustrate the expeditious resolution of labour disputes. In other words, in general terms, justice would be advanced rather than frustrated by permitting CCMA arbitration proceedings to run the course without intervention by this court.[18] Much later in in Ngobeni v Prasa Cres and Others[[2016] 8 BLLR 799 (LC) at para 14.] the Court said the following in the reasons for judgment: The urgent roll in this court has become increasingly and regrettably populated by applications in which intervention is sought, in one way or another, in workplace disciplinary hearings. The present application is a prime example and is exacerbated by the preceding application to review and set aside Advocate Cassims ruling on recusal.... The abuse goes further what the applicant effectively seeks to do is to bypass the statutory dispute resolution structures in the form of the CCMA and bargaining councils. One of the primary functions of the structures is to determine the substantive and procedural fairness of unfair dismissal disputes. Applicants who move applications on an urgent basis in this court for orders that effectively constitute findings of procedural unfairness, bypass and undermine the statutory dispute resolution system. The courts proper role as one of supervision over the statutory dispute resolution body; it is not a court of first instance in respect of the conduct of a disciplinary hearing, nor is its function to micromanage discipline in workplaces. a prima facie right; a well-grounded apprehension of irreparable harm if the interim relief was not granted; the balance of convenience should favour the granting of an interim interdict; and there was no other satisfactory remedy satisfy the requirements in relation to urgency. disputes had not been referred to the CCMA yet J684/09 SACCAWU v Ellerine Holdings (Pty) Ltd t/a Ellerine Furnitures (Pty) Ltd and Ellerine Trading (Pty) Ltd the right which the applicant seeks to protect by means of interim relief has to be clear, or if not clear, is at least prima facie established, although open to some doubt in the case of an established prima facie right, there has to be a well-grounded apprehension of irreparable harm to the applicant, if the interim relief is not granted and the applicant ultimately succeeds in establishing the right the balance of convenience has to favour the granting of interim relief, and the applicant has no other satisfactory remedy available to it. J1809/10 Sonqoba Security Services MP (Pty) Ltd v Motor Transport Workers Union declaratory order interdicting: suspension (J1113/17 Thibini v Merafong City local Municipality and Others (J1113/17) [2017] ZALCJHB 235 (26 May 2017) Member of the Executive Council for Education, North West Provincial Government v Gradwell [2012] 8 BLLR 747 (LAC) at para 46. Disputes concerning alleged unfair labour practices must be referred to the CCMA or bargaining council for conciliation and arbitration in accordance with the mandatory provisions of section 191(1) of the LRA. The respondent in this case instead sought a declaratory order from the Labour Court in terms of section 158(1)(a)(iv) of the LRA to the effect that the suspension was unfair, unlawful and unconstitutional. A declaratory order will normally be regarded as inappropriate where the applicant has access to alternative remedies, such as those available under the unfair labour practice jurisdiction. The final declaration of unlawfulness on the grounds of unfairness will rarely be easy or prudent in motion proceedings. The determination of unfairness of a suspension will usually be better accomplished in arbitration proceedings, except perhaps in extraordinary or compellingly urgent circumstances. When the suspension carries with it a reasonable apprehension of irreparable harm, then, more often than not, the appropriate remedy for an applicant will be to seek an order granting urgent interim relief pending the outcome of unfair labour practice proceedings Steenkamp and Others v Edcon Limited [2016] ZACC 1; (2016) 37 ILJ 564 (CC); 2016 (3) BCLR 311 (CC); [2016] 4 BLLR 335 (CC); 2016 (3) SA 251 (CC). [18] Recently the Constitutional Court had to deal with the matter whereby parties had approached the Court asking it to declare their dismissal unlawful, in accordance with the provisions of the LRA. The Constitutional Court held that it could not have been the intention of the legislature that a dismissal could be declared unlawful, instead of fairness.[21] I, therefore, conclude that relying on the provisions of the LRA, asking the Court to declare a suspension unlawful is misplaced under these circumstances. Urgency Mojaki v Ngaka Modiri Molema District Municipality and Others [2014] ZALCJHB 433; (2015) 36 ILJ 1331 (LC) at para 17. The import thereof is that the procedure set out in rule 6(12) is not there for taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the Applicant must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The rules allow the Court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules it will not obtain substantial redress. It is important to note that the rules require absence of substantial redress. This is not equivalent to the irreparable harm that is required before the granting of an interim relief. It is something less. He may still obtain redress in an application in due course but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in that regard. Suspension P05/17 Pietersen v Dr Beyers Naude Local Municipality (P05/17) [2017] ZALCJHB 47 (14 February 2017) Member of the Executive Council for Education, North West Provincial Government v Gradwell (2012) 33 ILJ 2033 (LAC); See also Booysen v Minister of Safety and Security and Others (2011) 32 ILJ 112 (LAC) at para 54 he Labour Court has the necessary jurisdiction to entertain urgent applications pertaining to the uplifting of suspensions. However, the Labour Courts intervention should only be in circumstances that are urgent, extraordinary or compellingly. [26]To conclude then, the Applicant has not established nor demonstrated a clear, let alone a prima facie right to the relief that he seeks. As also pointed out on behalf of the Respondent, he has alternative remedies available under the provisions of the LRA to seek redress in respect of his suspension. Significantly though, having had regard to the circumstances of this case, issues surrounding alleged financial ruin in circumstances where the Applicant has been placed on suspension with full pay, or protection of integrity in the face of a criminal conviction, can hardly qualify as urgent, extraordinary or compellingly factors, requiring the courts intervention. On the contrary, it is the very circumstances that the Applicant finds himself in as a result of his criminal conviction that militates against any inclination to place him back in his position. To the extent that this is the case, there would be no need to consider other requirements pertinent to such applications. unfair dismissal: if he succeeds in his unfair dismissal claim and is entitled to reinstatement as part of his relief, he might already have been replaced J122/17 Mashaba v South African Football Association ("SAFA") (J122/17) [2017] ZALCJHB 53; [2017] 6 BLLR 621 (LC); (2017) 38 ILJ 1668 (LC) (21 February 2017) [19]The application is dismissed. Khumalo & another v MEC for Education, KwaZulu-Natal(2013) 34ILJ296 (LAC) The Labour Court, certainly has the power to enforce the terms of employment contracts,[5] but I know of no provision in any of the statutes which empowers the court to prevent the conclusion of private employment contracts. Likewise, the fact that Mr Mashaba may acquire a right to reinstatement once he is able to establish that his dismissal was substantively unfair, does not translate into a right to keep his position vacant merely on the assumption that he might be able to do so. urgency J3093/18 Maluleke v Greater Giyani Local Municipality and Others (J3093/18) [2018] ZALCJHB 456; (2019) 40 ILJ 1061 (LC) (4 October 2018) Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32. (Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W).) Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. Tshwaedi v Greater Louis Trichardt Transitional Council [2000] 4 BLLR 469 (LC) at para 11. An applicant who comes to court on an urgent basis for final relief bears an even greater burden to establish his right to urgent relief than an applicant who comes to court for interim relief urgency: requirements J2400/18 Vumatel (Pty) Ltd v Majra and Others (J2400/18) [2018] ZALCJHB 335; (2018) 39 ILJ 2771 (LC) (9 October 2018) Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another (2016) 37 ILJ 2840 (LC) at paras 20 26, and all the authorities cited there. These are: (a) the applicant has to set out explicitly the circumstances which renders the matter urgent with full and proper particularity; (b) the applicant must set out the reasons why the applicant cannot be afforded substantial redress at a hearing in due course; (c) where an applicant seeks final relief, the court must be even more circumspect when deciding whether or not urgency has been established; (d) urgency must not be self-created by an applicant, as a consequence of the applicant not having brought the application at the first available opportunity; (e) the possible prejudice the respondent might suffer as a result of the abridgement of the prescribed time periods and an early hearing must be considered; and (f) the more immediate the reaction by the litigant to remedy the situation by way of instituting litigation, the better it is for establishing urgency. Irreparable financial loss J1387/19 Bogoshi v Servest Security (J1387/19) [2019] ZALCJHB 154 (19 June 2019) Ledimo and Others v Minister of Safety and Security and Another (2242/2003) [2003] ZAFSHC 16 (28 August 2003) at para 32 mere fact that irreparable financial losses have been suffered or would be suffered by the applicant was not, by itself, sufficient to ground the requisite urgency necessary to justify a departure from the ordinary court rules. the facts of this case exceptional: breach of the applicants contract of employment. J 143/21 Munthali v Passenger Rail Agency of South Africa (PRASA) (J 143/21) [2021] ZALCJHB 3; [2021] 5 BLLR 507 (LC); (2021) 42 ILJ 1245 (LC) (24 February 2021) [20] It is not even necessary to address issues surrounding whether the applicant has an alternative remedy in the light of the facts that led to the termination of her contract and the legal basis of her claim. The irreparable harm to her should urgent relief not be granted is apparent from the consequences of the circumstances and manner surrounding the termination of the contract as already dealt with. It follows therefore that her urgent applicant should succeed. [9] I agree with the proposition in Ntefe J Ledimo & others v Minister of Safety and Security & Others[ (2242/2003) [2003] ZAFSHC 16 (28 August 2003)] that there is no immutable rule that financial exigencies cannot be invoked to lay a basis for urgency. This is so in that Courts in any event enjoy a discretion in the overall determination of whether a matter should be accorded urgency or not. Inasmuch as factors surrounding financial hardship on their own are not a basis for according a matter urgency, these have to be determined together with other facts and circumstances pleaded in the founding papers, which points to a conclusion that those facts and circumstances are exceptional, thus necessitating that the matter should be treated as urgent. Ntefe J Ledimo & others v Minister of Safety and Security & Others (2242/2003) [2003] ZAFSHC 16 (28 August 2003) at paragraph 32, where Rampai J) held that: In the three cases I have quoted above the courts have held that the mere fact that irreparable financial losses have been suffered or would be suffered by the applicant was not, by itself, sufficient ground to ground the requisite urgency necessary to justify a departure from the ordinary court rules. In applying this principle, a judge will do well to keep the words of wisdom which were expressed through the lips of Kroon J on p 15 in CALEDON STREET RESTAURANTS CC (supra). I find it apposite to echo those sentiments here by quoting him verbatim: However, the following comments fall to be made. First, to the extent that these cases may be interpreted as laying down that financial exigencies cannot be invoked to lay a basis for urgency, I consider that no general rule to that effect can be laid down. Much would depend on the nature of such exigencies and the extent to which they weigh up against other considerations such as the interests of the other party and its lawyers and any inconvenience occasioned to the court by having to entertain an application on an urgent basis. Second, whatever the extent of the indulgence, the sanction of the court thereof that an application be heard as a matter of urgency, would not in general, in this Division, accord the matter precedence over other matters and result in the disposal of the latter being prejudiced by being delayed. [11] To the extent that PRASA had contended that the applicants financial hardship was hardly a consideration when determining urgency, it was held in South African Informal Traders Forum and Others v City of Johannesburg and Others; South African National Traders Retail Association v City of Johannesburg and Others[2014 (6) BCLR 726 (CC) at paras [31] and [36]] that the ability of people to earn money and support themselves and their families is an important component of the right to human dignity, and that without that ability, they faced humiliation and degradation. Urgency J111/21 Ngoye and Others v Passenger Rail Agency of South Africa and Others (J111/21) [2021] ZALCJHB 21; (2021) 42 ILJ 1267 (LC) (2 March 2021) [22] When a final order is sought, as it is the position in this matter, the bar remains high for the applicants to establish a clear right, that they stand to suffer irreparable harm, they do not have alternative remedy and that balance of convenience favours the granting of the relief sought. In Hultzer v Standard Bank of South Africa (Pty) Ltd[[1999) 8 BLLR 809 (LC).] the Court held at paragraph 13 as follows:"[13] Financial hardship or loss of income is not regarded as a ground for urgency. Mlambo J in the University of Western Cape matter (supra) found that loss of income cannot establish a ground for_ urgency in an attempt to obtain urgent interim relief from this court. The applicant, in its founding papers, has not put forward any evidencery detail with regard to injury to his reputation if he is not reinstated in his former position, by way of urgent interim relief." [25] In Mthembu v Mpumalanga Economic Growth Agency[[2015] ZALCJHB 184.] the Court held as follows at paragraph 22, per Tlhotlhalemaje AJ (As then he was):"[22] As already indicated, it is not always that this court should regard financial hardship and loss of income as grounds for urgency, but in this case the applicant has adduced sufficient evidence to support these grounds, which invariably extends beyond pure financial considerations. In conclusion on this issue, I am willing to further accept that the lack of diligence was not unreasonable given the circumstances of this case, and even if a contrary view was to be held, there are other factors in this case that are indeed compelling and exceptional to call for the court's intervention as illustrated below." [26] In Ngqeleni v Member of the Executive Council for Department of Health, Eastern Cape[[2018] ZAECMHC 77 (22 November 2018).] the High Court found financial hardship to be sufficient reason for urgency based on the circumstances which the applicant found himself in due to termination of employment which its unlawfulness was subject matter of the application. [29] What happened in this matter is that on 29 January 2021, the first and second applicants woke up as employees of PRASA, when they went to bed later in the day, they formed part of the unemployment statistics, and so was the case in respect of the third applicant on 01 February 2021. I am under these circumstances compelled to consider the abrupt manner in which the termination of employment contracts was effected, that is with immediate effect. There appeared no prior word or sign of caution that their contracts were facing termination. I find this on its own to raise exceptional circumstance interim relief: section 76. Replacement labour. J398/21 Airline Pilots Association of South Africa (ALPA-SA), as represented by the South African Airways Pilots Association (SAAPA), a branch of ALPA-SA obo Members v South African Airways (SOC) Limited and Others (J398/21) [2021] ZALCJHB 57 (23 May 2021) [12] The requirements for granting interim relief are well known. Other than establishing urgency, the applicant is required to establish that it is entitled to interim relief on the grounds that; (a) the right which is the subject-matter of the main application and which the applicant seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt; (b) if such case is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim interdict is not granted and the applicant ultimately succeeds in establishing his or her right; (c) there is no other satisfactory remedy; and (d) the balance of convenience favours the granting of interim relief.[4] In Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another[1973 (3) SA 685 (A) at 691C-G], it was held that the granting of interim relief pending an action is an extraordinary remedy within the discretion of the Court, and that the discretion would be exercised with due regard to the requirements to be met and the facts of the case. [20] Earlier in SACTWU v Coats[SACTWU v Coats 2001 22 ILJ 1413 (LC)], this Court had held that an employer does not contravene the provisions of section 76(1)(b) of the LRA by using its employees who are not locked out to perform their own work as well as the work of their co-workers who are locked out. The Court appreciated that non-striking employees and employees who have not been locked out, may refuse to do the work of their co-workers who are either on strike or locked out. Flowing from this decision, it is apparent that section 76(1)(b) does not prohibit an employer from implementing a lock-out in response to a strike and then sourcing replacement labour, to perform the work of the locked out employees. [42] The policy is one that also says to unions and employees: Do not lightly resort to a strike when a dispute has arisen because, in the absence of a strike, the employer may not employ replacement labour even if it institutes a lock-out but, if you strike, the employer will be able to employ replacement labour - with or without a lock-out. The sum total of all this is that the policy is to encourage parties to disputes to try to reach agreement on their disputes and a strike or lock-out should be the last resort, when all reasonable attempts to reach agreement have failed. [24] In line with what was stated in Technikon SA v National Union of Technikon Employees,[] SAA is thus permitted to employ replacement labour even if it had initially instituted a lock-out. This is so in that the individuals who would ordinarily have performed the work in question, were not initially locked-out, but had refused to perform those duties. When the applicant commenced its strike action and SAA confirmed the continuation of its lock-out in response to that strike, this significantly diminished the applicants protection under the proviso set out in section 76(1)(b) of the LRA, thus entitling SAA to engage replacement labour. [30] To conclude therefore, there was no need for this application to be before the Court some 17 court days before the Main application was to be heard, where the parties were to fully ventilate the issues raised in the same application. Urgency J 539/21 Du Toit v Erudite Projects (Pty) Ltd (J 539/21) [2021] ZALCJHB 74 (2 June 2021) Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32. Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant to adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. Urgency J 571/2021 Tsekedi v Masilonyana Local Municipality (J 571/2021) [2021] ZALCJHB 96 (4 June 2021) [17] The principles to be applied are well-established. Whether or not a matter is urgent involves two considerations. The first is whether the applicant has set out cogent reasons in the founding affidavit and secondly, whether the applicant will not obtain substantial relief at some later stage. Where an applicant seeks final relief on an urgent basis, as the applicant does in these proceedings, the court must be particularly circumspect in deciding whether or not urgency has been established. Further, urgency must not be self-created by an applicant as a consequence of the applicant not having brought the application at the first available opportunity. [18]...What weighs particularly heavily with me is the fact that it will not be possible, in present circumstances, for the applicant to obtain relief in the normal course. The applicants contract of employment, as I have indicated, expires on 31 December 2022. It is highly unlikely, given the backlog in the opposed motion court, that this matter would be finalised prior to that date. Insofar as the applicant contends that any urgency is self-created, this is simply not the case. [23]...The termination of the applicants employment in these circumstances constituted a material breach of his contract. While the remedy of specific performance may constitute a primary remedy at the election of an aggrieved employee, it is not there for the taking (Mpane v Passenger Rail Agency of SA & others (2021) 42 ILJ 546 (LC)). In the present instance, in the absence of any evidence proffered by the respondents as to why specific performance ought not to be granted, the applicant is entitled to the order that he seeks. Specific performance: dismissal due to "repudiation of contract" J742/2022 Mahonono v National Heritage Council and Others (J742/2022) [2022] ZALCJHB 188; (2022) 43 ILJ 2335 (LC) (18 July 2022) [39] There are a number of instances where the courts have intervened and ordered specific performance, where an employer has decided to abandon disciplinary proceedings which are underway or otherwise disregarded contractual provisions governing an employee’s termination, and taken the decision to dismiss the employee without waiting for the outcome of the inquiry[16]. However, as mentioned, a finding that a dismissal was in fundamental breach of the employees contract of employment does not automatically result in the court granting relief in the form of specific performance.[See: Mntambo v Piotrans (Pty) Ltd (2021) 42 ILJ 2298 (GJ) and Botes v City of Johannesburg Property Co SOC Ltd and another (2021) 42 ILJ 530 (LC), though the latter was decided on account of the courts finding that it had no jurisdiction to make such an order, which is at odds with the approach taken by the Labour Appeal Court.] [40] It is clear from the jurisprudence that specific enforcement of employment contracts is now firmly established as common practice, subject only to serious concerns about the practical consequences of restoring the status quo ante. The courts are understandably reluctant to allow parties to the employment relationship to just sidestep their binding obligations relating to the termination of employment. A common stratagem is to claim the employee has committed some other conduct tantamount to a repudiation of the contract of employment, which the employer accepts.[Wereley v Productivity SA & another (2020) 41 ILJ 997 (LC) at para [42]; ] [1] The application is dealt with as one of urgency in terms of Rule 8(2) of the Labour Court Rules, and any non-compliance with the provisions of service and time periods is condoned.[2] The termination of the Applicants service in a letter dated 13 June 2022, was a fundamental breach of her contract of employment and the dismissal was unlawful and void ab initio.[3] The First Respondent must reinstate the Applicant without delay, with retrospective effect to 13 June 2022, and must pay the Applicant any unpaid remuneration and benefits due to her from that date. Contempt of court order J 1066/2020 Association Mineworkers and Construction Union obo the AMCU Members v T.W. Civils and Earthmoving (PTY) Ltd and Another (J 1066/2020) [2022] ZALCJHB 223 (8 August 2022) [16] It follows that any claim in respect of remuneration consequent on the reinstatement ordered by the court on 21 October 2021 is a contractual claim sounding in money. It is thus not competent for the applicants to seek to hold the respondents in contempt. Their remedy is to quantify their claim and seek to execute by way of a writ of execution. payment of remuneration J 859/2022 Van Wyk v Khewija Engineering and Construction (J 859/2022) [2022] ZALCJHB 238 (23 August 2022) [38] In Mthembu v Mpumalanga Economic Growth Agency[Unreported judgment under case no: J991/15 delivered on 17 June 2015 at para 19.] (Mthembu), the applicant approached the Court on an urgent basis seeking an order declaring that the agreement of employment concluded between herself and the respondent to be extant and further ordering that the respondent abides by the terms of the agreement. The applicant, in setting out the grounds for urgency, alleged that inter alia the loss of employment would result in severe irreparable financial harm, her ability to financially support her family and future career opportunities and financial commitments. The Court referred to The Democratic Nursing Organisation of South Africa and Another v Director General of Health and Others,[(2009) 30 ILJ 1845 (LC).] and Harley and stated that I nevertheless align myself with the view that the court should not as a rule of thumb, throw out urgent applications brought mainly on the grounds of financial hardship or loss of income, and should rather look at the merits of each case, ascertain whether compelling or exceptional circumstances exist for it to intervene on an urgent basis, and then exercise its discretion accordingly. In line with this approach, I further accept that an employee should be entitled to urgent relief if she can demonstrate detrimental consequences that may not be capable of being addressed in due course and if she is able to show that she will suffer irreparable hardship if the Court did not intervene on an urgent basis.[39] Further, the Court considered the right to fair labour practices (section 23) read together with the right to administrative action which is lawful, reasonable and procedurally fair (section 33)[9] and held that these rights are further amplified by section 185 of the Labour Relations Act[10]. The Court stated that [i]t therefore follows that if the employer in circumstances that appear grossly unfair or unlawful infringes these rights, the subsequent consequences of financial hardship and loss of income are factors that ordinarily arise from the infringement of these rights, and these factors should persuade the court to intervene on an urgent basis.[11] [40] In Munthali v Passenger Rail Agency of SA[(2021) 42 ILJ 1245 (LC).] (Munthali), the applicant sought urgent relief declaring her employment contract with the respondent as extant and ordering the respondent to comply with the terms of their agreement by retrospectively reinstating her in its employ. Tlhotlhalemaje, J agreed with the position taken in Ledimo and others v Minister of Safety and Security and Others,[Unreported judgment under case no 2242/2003 delivered on 28 August 2003.] and held that there is no immutable rule that financial exigencies cannot be invoked to lay a basis for urgency.[14] [41] In my view, a claim for payment of salary and benefits brought by an applicant, still employed and still rendering services, is different from a similar claim by a dismissed employee. The fact that the employment relationship remains intact, is a factor that weighs in favour of the employee in considering whether the matter should be heard on an urgent basis. This was alluded to in Police and Prisons Civil Rights Union on behalf of Sephanda and another v Provincial Commissioner: South African Police Services, Gauteng Province and another,[(2012) 33 ILJ 2110 (LC) at paras 5 6.] where it was held that:[5] The respondent cited a number of cases in which financial or pressures were deemed insufficient to justify urgency, on the basis that alternative mechanisms existed for a party to recover financial loss and financial pressure, as such, was not deemed to be a valid reason for treating the matter as urgent, such as Hultzer v Standard Bank of SA (Pty) Ltd (1999) 20 ILJ 1806 (LC) and Democratic Nursing Organisation of SA & Another v Director-General, Department of Health & Others (2009) 30 ILJ1845 (LC). In those cases the employees claiming payment of remuneration or continuation of benefits had already been dismissed when they initiated urgent proceedings. It stands to reason that granting relief in the form of remuneration or other benefits of employment when the very employment status of the individual is in issue, would be an extraordinary remedy.[6] However, the circumstances in this case are not strictly comparable. The applicants currently remain employees of the respondent. The drastic measure taken by the employer of stopping the applicants salaries whilst they remained employed is the exercise of an extraordinary power which makes a serious inroad into an employee's common-law employment right to be remunerated so long as one remains in employment and tenders ones services. To my mind, this is the type of situation in which a claim for payment of salary can be raised on an urgent basis, in the same way that any failure to pay wages to an employee who remains in service could give rise to an urgent application for specific performance. An employers obligation to remunerate an employee is a fundamental component of the reciprocally rendered obligations of the employment contract. [42] The second requirement to consider is whether the applicant seeking relief will not obtain substantial relief at a later stage. [43] The Applicant explained that he is unable to afford his medical aid contributions in the absence of receiving his full salary, which resulted in the suspension of his medical aid and which leaves him at severe risk. He further stated that the Respondents failure to pay him his salary and benefits left him unable to service his monthly financial obligations, which difficulty will only escalate further. He had to use his credit card facilities, utilised funds accessible from his universal loan and had to withdraw money from his access bond in order to stay afloat and make ends meet, awaiting the payment of his salary. He is no longer able to withdraw money from his loans as he had withdrawn all the available funds and his funds are completely depleted.[44] The Applicant is required to make payments on the bond over his primary residence and should he fail to make such payments, Absa Bank will be able to call up the entire amount and take action against him, which places him at risk to lose his primary residence and to be sequestrated.[45] In my view, the Applicant was able to demonstrate detrimental consequences that may not be capable of being addressed in due course. The Applicant made it clear that he had depleted the funds he had access to, he has no medical aid cover, and he will not be able to honour his obligations in respect of his two minor children, which is an obligation in terms of a Court order, he faces the risk of losing his primary residence and the risk of being sequestrated. These are consequences so severe and detrimental that this Court cannot expect the Applicant to suffer them and wait for redress in due course. [46] The alternative is for the Applicant to issue summons based on a breach of contract. Such litigation will take a long time to be finalised, by when the Applicant could have already been sequestrated, lost his primary residence and was unable to provide for his family. Those consequences would not be reversed if he successfully claims his money from the Respondent in future litigation. [53] It is trite that where an employee has rendered his or her full time services, he or she is entitled to a full salary. To withhold an employee’s salary makes inroad into an employee's common-law employment right to be remunerated so long as one remains in employment and tenders ones services. The fact that the Respondent is unable to pay salaries due to financial constraints, is a different issue with different remedies and is not a defence in a case such as the present. postponement of urgent application for 7 months no longer urgent J221/22 Isaac and Others v Tswaing Local Municipality and Others (J221/22) [2022] ZALCJHB 323 (21 November 2022) [8] I struggle to understand why this matter is still urgent when the applicants themselves squandered the meagrely pleaded urgency consequent to Tlhotlhalemaje Js munificent order. There is no merit in the applicants contention that the issue of urgency is res judicata. A party that seeks urgent intervention by the Court is enjoined to proffer an explanation for urgency. The fact that urgency was upheld seven months ago does not necessarily support the contention that the matter is still urgent, especially since the applicants claim pertains to a breach of contract. [9] It is a trite principle that an enquiry on urgency involves two considerations. Firstly, whether the reasons that make the matter urgent have been adequately set out in the founding affidavit; and secondly, whether the applicant would not get substantial redress in the normal course.[Association of Mineworkers and Construction Union and others v Northam Platinum Ltd and another (2016) 37 ILJ 2840 (LC) at paras [20] [26]; National Education Health & Allied Workers Union & others v University of SA & another (2022) 43 ILJ 2351 (LC) at paras [7] - [9].] Put otherwise, as observed by the court in East Rock Trading 7 (Pty) Ltd & another v Eagle Valley Granite (Pty) Ltd & others[2011 JDR 1832 (GSJ) at para [6].], referred to with approval in Mojaki v Ngaka Modiri Molema District Municipality & others[(2015) 36 ILJ 1331 (LC) at para [17].]:'An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules it will not obtain substantial redress.' [10] The applicants failed to show that they would not get substantial redress in the normal course. In fact, their conduct in postponing the matter for a period of four months in order to engage in a settlement discussion is fatal to their claim for an urgent relief. This is the conduct that was decried by this Court, per Snyman AJ, in Association of Mineworkers and Construction Union and others v Northam Platinum Ltd and another,[Reportable judgment under case number JA 12/21 delivered on 27 September 2022 (Tswaing).] the observations therein are succinctly reprised in his recent judgment in Maphalle v National Heritage Council and Others[Unreported judgment under case no J 929/2022, delivered on 30 August 2022 at para [1] [5]]; [3] It is my view that breach of contract claims seldomly warrant being dealt with on the basis of urgency. Ordinarily, this Court should be reluctant to entertain these kinds of urgent applications, considering the fact that there is no reason, in general, why a dispute concerning the breach of a contract of employment cannot be pursued in the ordinary course, as would the case where an ordinary civil court is seized with such a contract dispute. If every breach of a contract of employment was per se urgent, then this Court would be flooded with urgent applications to overturn terminations of employment, which is simply not the kind of process fit for purpose.[4] All considered, the termination of an employment contract on notice is nothing else but a dismissal as defined in section 186(1)(a) of the LRA. Challenging such a dismissal under the LRA follows a prescribed dispute resolution process, and this does not include approaching this Court directly on an urgent basis to effect such a challenge. Whilst it is true that an employee has the election to challenge a termination of his or her employment contract either as an unfair dismissal under the LRA, or on the basis of a breach of contract, it must always be remembered that the preferred method to challenge such a termination of employment, from a general policy perspective, would be unfair dismissal proceedings under the LRA. The simple reality is that urgent applications based on alleged unlawfulness or breach of contract are often abused by litigants who seek to bypass these prescribed dispute resolution processes. As the Court held Northam Platinum supra: Whilst it may be so that a dismissal could in particular circumstances, and where the LRA is not relied upon, be considered to be unlawful and consequently invalid because of a specific provision in a contract of employment which has been breached, this cannot per se serve to jump the queue of all other dismissed employees relying on the provisions of the LRA waiting for their turn in court. This kind of situation is merely another cause of action upon which the termination of a contract of employment can be challenged in the Labour Court. But other than that it holds no particular magic.[5] It must follow that any application to approach this Court directly to challenge a dismissal on the basis of a breach of contract, as a matter of urgency, would only be competent in truly exceptional circumstances. If there are no such exceptional circumstances, then this Court should decline to step in. As to what exceptional circumstances may be, there are of course no specific hard and fast rules. But it has been said that amongst the factors to be considered would be whether it would be impossible that justice be attained by other means, or if material irremediable prejudice or injustice is shown to exist. (Own emphasis) Pending Arbitration J 186/23 Technology Corporate Management (Pty) Ltd v Moue and Others (J 186/23) [2023] ZALCJHB 71 (12 March 2023) [24] On the basis of the above conclusions, clearly the applicant has not demonstrated why this application deserves the urgent attention of this Court. Even if the Court were to consider the merits of the application, and to the extent that it seeks an interim order, it must establish or at most, demonstrate a prima facie right; a well-grounded apprehension of irreparable harm if the interim relief is not granted; that the balance of convenience favours the granting of an interim interdict; and that there is no other satisfactory remedy[6]. [25] In regards to whether a prima facie right has been demonstrated, the starting point is that at the core of the urgent interdictory relief sought by the applicant is that the Court must effectively intervene in arbitration proceedings before the CCMA, and to put a halt to them pending the review of the Commissioners’ rulings. In respect of the Courts’ willingness to intervene in incomplete arbitration hearings, it has long been reiterated in Ngobeni v PRASA CRES and others[7] that there are at least two reasons why the Court should be slow in intervening in on-going arbitration proceedings. The first was a policy related reason in that routine interventions would undermine the informal nature of the system of dispute resolution established by the Labour Relations Act[8] (LRA). The second reason was that to permit reviews on a piece-meal basis would frustrate the expeditious resolution of labour disputes. It was further held that justice would be advanced rather than frustrated by permitting CCMA arbitration proceedings to run the course without intervention by this Court[9]. [26] To fortify the above legal principles, section 158(1B) of the LRA[10] provides that the court may not review any decision or ruling made during conciliation or arbitration before the issue in dispute has been finally determined by the CCMA or bargaining council, unless the Court is of the opinion that it is just and equitable. [27] It would further be remiss of this Court not to take judicial notice of the net effect of halting ongoing arbitration proceedings before the CCMA. It is that the mere fact that pleadings in an application to review impugned rulings are at an advanced stage, does not in itself fortify the basis for granting urgent interdictory relief. The advanced status of the pleadings in the review application is indeed small comfort for employees in view of the backlog in this Court which is well-known. It will take at least a minimum of 18 months before such review applications are heard in Court upon the pleadings having closed. Summarily dismissal: a breach of contract or binding disciplinary code and the remedy of restoration of her contract of employment. J616/23 Letsholonyane v Minister of Human Settlements and Another (J616/23) [2023] ZALCJHB 147 (15 May 2023) [21] The applicant has disavowed any reliance on the LRA. She has pleaded that the application is based on a breach of contract, that she seeks a declarator that the Minister breached her contract of employment and the restoration of the status quo prior to the alleged unlawful dismissal. It is clear from the pleaded case that the application is brought in terms of sections 77(3) and 77A(e) of the Basic Conditions of Employment Act (BCEA).[8] [33] The application before me has nothing to do with the merits of the dismissal. Whether there is a dispute of fact on the fairness or otherwise of the dismissal, or whether there has been a material breach of the employment contract that warrants dismissal, is not an issue that concerns this Court. Dismissal is common cause, and the issue is whether it was effected in compliance with the contract and/or the SMS Handbook. Put differently, the issue is whether it was effected in compliance with the binding disciplinary code. [46] The Minister’s conduct was unlawful. Such conduct should not be condoned by courts of law. This Court cannot and should not turn a blind to the injustice and lawlessness. The impact that such decisions have on the employees is unimaginable. Accordingly, the applicant has made out a case for declaratory relief. 3. The decision of the first respondent to summarily dismiss the applicant from her employment on 20 April 2023 is hereby declared to be in breach of the contract of employment and chapter 7 of the SMS Handbook, and unlawful. purpose of urgent proceedings (17268/2024 Tinstwalo and Others v City of Johannesburg Metropolitan Municipality (17268/2024) [2025] ZALCJHB 117 (10 March 2025) "15] Counsel for the respondent referred the court to a case cited in its heads of argument namely, Export Development Canada and another v Westdawn Investments (Pty) Ltd and others[ [2018] 2 All SA 783 (GJ) at paras 8 to 10.] where the court stated that: [8] The purpose of urgent proceedings is to enable a court to come to the assistance of a litigant in circumstances where the litigant will be unable to obtain relief in the ordinary course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. In East Rock Trading 7 (Pty) Ltd and another v Eagle Valley Granite (Pty) Ltd and others (quoted with approval by Wepner J in In re: Several Matters on the Urgent Court Roll), Notshe AJ held: ‘It is important to note that the rules require absence of substantial redress. This is not equivalent to the irreparable harm that is required before the granting of interim relief. It is something less. He may still obtain redress in an application in due course but it may not be substantial. Whether an applicant will not be able to obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in that regard.’ [9] Urgency is decided by reference to the applicant's papers alone. Nowhere in their founding papers do the applicants pertinently allege that they will not be able to obtain substantial redress in due course. ... [10] The ""formulaic recitation"" by an applicant, in its founding papers in an urgent application, of the phrase ""will not otherwise be afforded substantial redress in due course"" which appears in rule 6(12)(b) of the Uniform Rules, will not if unsupported by the facts entitle the application to be enrolled and dealt with as one of urgency. Likewise, where an applicant omits to pertinently allege this phrase in its founding papers, but from an examination of the facts it is clear that the applicant will not be able to obtain substantial redress in an application in due course if the matter is not dealt with on an urgent basis, then its failure to do so is immaterial. This is because whether or not an applicant is in a position to obtain substantial redress in due course can only be determined after giving consideration to the facts and circumstances of a particular case.”" 43] It is therefore my respectful view that the applicants have satisfied the requirements of an interim interdict and that they have made out a good case for the granting of the relief prayed for. (Complete)

Estoppel Labour Law cases decided in the South African Courts (Highlights and updated 6 1997 to 6 2025 [Copyright: Marius Scheepers/15.7.1])   Estoppel, Evidence. Estoppel The principle of estoppel has been held to be applicable in the field of labour relations. This was confirmed in the case of Chamber of Mines of SA v NUM 1987 (1) SA 668 (A) and in Maluti Transport Corporation Ltd v MRTAWU & Others (1999) 9 BLLR 887 (LAC), JR514/08 South African Revenue Services v CCMA & Others must put party's version JR603/2015 Glencore Operations South Africa (Pty) Ltd v Malapane and Others (JR603/2015) [2017] ZALCJHB 5 (5 January 2017) It was not put to her during cross examination that this would be argued at the end of the matter nor was she given a chance to comment on any suggestion that she was evasive or refused to answer questions whose answers would be damaging to the Applicants case. It is a requirement that a witness be confronted with what will be argued so that they have an opportunity to comment thereon.   must be pleaded JR322/15 Rademeyer v Aveng Mining Ltd and Others (JR322/15) [2017] ZALCJHB 257 (28 June 2017) Amplats Management Services (Pty) Ltd v Van Jaarsveld (2007) 28 ILJ 2669 (SCA) Menne undoubtedly had authority to enter into a contract of secondment with the respondent (and with Rustenburg Platinum Mines). This was confirmed by Emmett. But he clearly had no authority to bind the appellant to the contract of employment which, it is alleged, he entered into with the respondent. Menne was a senior member of staff, he knew full well the procedures involved for the appointment of personnel to head office and the need for such appointments to be approved by the ADCO.  In these circumstances, it is most unlikely that he would ever have purported to bind the appellant in the manner alleged by the respondent. The probabilities are overwhelming that he would have done no more than express a view, however strongly, that at the end of the secondment period the respondent was likely to be appointed or that he, Menne, would use his best endeavours to procure an appointment for the respondent. On the respondent's case Menne would have had to deliberately exceed his authority knowing full well what the appointment procedures were. This is unlikely, to say the least. [51] Insofar as the applicant may rely on the contention that the first respondent is somehow prohibited from relying on the lack of authority of Sinclair, or the need to have followed proper recruitment processes, this would be nothing else but a case of estoppel. That being so, the difficulty the applicant has is that a case of estoppel was never pleaded or made out in evidence. Concor Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter 2004 (6) SA 491 (SCA) at para 7 Our law is that a person may be bound by a representation constituted by conduct if the representor should reasonably have expected that the representee might be misled by his conduct and if in addition the representee acted reasonably in construing the representation in the sense in which the representee did so.' Bester NO and Others v Schmidt Bou Ontwikkelings CC 2013 (1) SA 125 (SCA) at para 17.  See also Van Deventer v Ivory Sun Trading 77 (Pty) Ltd 2015 (3) SA 532 (SCA) at para 44; Oriental Products (Pty) Ltd v Pegma 178 Investments Trading CC and Others  2011 (2) SA 508 (SCA) at para 19. Broadly stated, the concept of estoppel, borrowed from English law as applied by our courts, amounts to this: when a person (the representor) has by words or conduct made a representation to another (the representee) and the latter acted upon the representation to his or her detriment, the representor is estopped, that is precluded, from denying the truth of the representation (see eg Union Government v Vianini Ferro-Concrete Pipes (Pty) Ltd 1941 AD 43 at 49). Absa Bank Limited v IW Blumberg and Wilkinson [1997] ZASCA 15; 1997 (3) SA 669 (SCA) at 681G-H. Plainly a party wishing to rely on estoppel must plead it and prove its essentials .. Maluti Transport Corporation Ltd v MRTAWU and Others [1999] 9 BLLR 887 (LAC) at para 57. It is trite that an estoppel must be pleaded. At the very least it must be debated in cross-examination. .. induce further evidence JA49/2020 Regenesys Management (PTY) Ltd t/a Regenesys v Nortje and Others (JA49/2020) [2022] ZALAC 96 (18 July 2022) [24]       As to the third appeal ground, namely the refusal of the Labour Court to allow the appellant to adduce further evidence related to the remedy of reinstatement as inappropriate relief, I am not persuaded that the Labour Court erred in refusing to allow such further evidence to be adduced. The appellant brought the application after it had closed its case. The Labour Court, placing reliance on Coetzee v Zeitz Mocaa Foundation Trust and others[10] and Mkwanazi v Van der Merwe and another,[11] had regard to the considerations relevant to the determination of such an application. These included the reason why the evidence was not led timeously, the degree of materiality of the evidence, the possibility that it may have been shaped to relieve the pinch of the shoe, issues of prejudice, the stage that the litigation has reached, the healing balm of an appropriate costs order, the general need for finality in judicial proceedings and the appropriateness of making the order sought. The dismissals of the second, third, fifth and seventh applicants are found to be substantively unfair; [10]  The multitude of incidents mentioned by the several witnesses were supposed to have occurred during a period of up to two years prior to her suspension and many, but not all, were only vaguely located in time. The tenor of the appellant's defence was threefold: (1) to deny certain alleged incidents occurred at all; (2) to admit certain other incidents but to offer a rebuttal of the interpretation placed on them by the witnesses; and (3) to respond that she had no recollection of an alleged incident but to deny that the spin put on it by the witnesses was appropriate JA125/2021 Makuleni v Standard Bank of South Africa Ltd and Others (JA125/2021) [2023] ZALAC 4 (8 February 2023) [16]  The first ground is that the absence of an apparent motive to lie is not a helpful tool with which to determine either credibility or reliability. The once too frequent observation, long ago, by courts that a policeman had no motive to lie has been discredited for generations; it cannot be allowed to leak back into our forensic toolbox in diluted form. [17]  The second ground is that the Labour Court held, on the facts, that there was no evidence of a motive to lie or to distort what had truly occurred and to. catastrophize an incident to paint the appellant in a bad light; ergo, the nine witnesses were to be believed. This is an untenable conclusion. [18]  The second misdirection was that, because there was no proof of a conspiracy among the witnesses, the correspondence of their several tales constituted a type of self-supporting corroboration. This criticism overlooks where the onus lay. Moreover, it is another example of fallacious forensic analysis - a variation of where there is smoke there must be fire Although it is a valid consideration that where similar fact evidence exists it must be considered and, where appropriate, given weight, it cannot of itself be taken as dispositive of the truth. [19]  A third questionable criticism of the award, by the Labour Court, is the notion that the commissioner examined the evidence piecemeal and failed to weigh it holistically. The award traversed the high points of the evidence in a cursory vein, but nevertheless, the commissioner articulated his conclusion as being dictated by his assessment of the probabilities. The contention is advanced that the commissioner focused on technicalities and adopted a piecemeal approach. [21] A fourth aspect is the question of why the witnesses did not complain at the time the incidents occurred. This notable omission was treated quite differently by the commissioner and by the Labour Court. The excuse given by the witnesses was that they were too scared to come forward, being intimidated by the appellant. The commissioner rejected that as unconvincing. [23]  Fifth, it was argued in the appeal that the commissioner exhibited a bias by interfering in the presentation of the case. This is an unjustified perspective of the commissioner's conduct. Commissioners are expected to assist an unrepresented litigant. In my view, he did no more than that. [29]  The greater part of the evidence was that the staff were subjected to a barrage of rebukes about poor performance, said to be often made in the company, of others, delivered rudely or shouted, which upset the witnesses. Included in this were allegations of jibes aimed at the person; criticism of the alleged breach of the dress code, not standing when serving a customer, late-coming and derision at what was said to be inadequate excuses, and many more. The principal difficulty with this sort of grievance is to furnish sufficient details so that the occurrences could be properly, addressed by the person accused of causing the upset to be either rebutted or explained. The charges were plainly drafted in vague terms because very few such episodes could be identified as to time and context. "[31]  The degree of robustness which characterises the reality of CCMA arbitrations is exactly the rationale for subjecting them to a review and not an appeal. The courts must be cautious not to undermine the legislative intent.   [32]  The review court's rationale for setting the award aside cannot stand." Issue estoppel JS362/2022 Public Servants Association of South Africa obo Members v South African Revenue Services (JS362/2022) [2025] ZALCJHB 146 (2 April 2025) [38]  The defence of issue estoppel describes instances where a party can successfully plead that the matter at issue has already been finally decided even though the common law requirements of res judicata have not all been met.[Royal Sechaba Holdings (Pty) Ltd v Coote and Another [2014] ZASCA 85; [2014] 3 All SA 431 (SCA) at para 12.] Issue estoppel is more extensive in its reach than the doctrine of res judicata, in that a final judgment not only operates as a defence to the same cause of action but also estops the parties from later disputing any point of fact or law which was essential to the decision made by a tribunal.[Smith v Poritt and others 2008 (6) SA 303 (SCA); [2007] ZASCA 19 at para 10.] "[39]  Issue estoppel allows a court to dispense with the two requirements of same cause of action and same relief, where the same issue has been finally decided in previous litigation between the same parties.[14] At the same time, however, our courts have realised that relaxation of the strict requirements of res judicata in issue estoppel situations creates the potential of causing inequity and unfairness that would not arise upon application of all three requirements.[15] " "[40]  The essence of issue estoppel was distinguished from res judicata in the strict sense by Brand JA[16] as follows: ‘Hence, our courts have been at pains to point out the potential inequity of the application of issue estoppel in particular circumstances. But the circumstances in which issue estoppel may conceivably arise are so varied that its application cannot be governed by fixed principles or even by guidelines. All this court could therefore do was to repeatedly sound the warning that the application of issue estoppel should be considered on a case-by-case basis and that deviation from the threefold requirements of res iudicata should not be allowed when it is likely to give rise to potentially unfair consequences in the subsequent proceedings (see e.g. Kommissaris van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A) at 676B – E. That, I believe, is also consistent with the guarantee of a fair hearing in section 34 of our Constitution.’" [41]  The Constitutional Court has cautioned that the “same issue” enquiry is whether an issue of fact or law was an essential element of the judgment on which reliance is placed. Accordingly, each case will depend on its own particular facts, and any extension of issue estoppel will be done on a case-by-case basis, with the relevant considerations including questions of equity and fairness to the parties and also to others. A failure to carefully circumscribe the defence of res judicata and, by extension, issue estoppel may cause hardship and injustice.[17] "[42]  Having considered the above-mentioned principles and having applied them in this matter, I am satisfied that the same issue does not arise in the applicant’s claim based on section 77(3) of the BCEA and the unfair labour practice dispute which was arbitrated in terms of the LRA. The CCMA proceedings were concerned with the fairness of the respondent’s withdrawal and non-payment of the leave encashment claims.   [43]  I have considered submissions from both parties, and I believe it would be patently inequitable and unfair to deprive the applicant of the right to a fair hearing and giving them an opportunity to pursue their contractual rights." [47]  My understanding is that the current claim of the applicant is contractual in nature and has nothing to do with the ‘application or interpretation’ of the collective agreement. The contractual entitlement of the applicant’s members to encash their leave days does not fall within the ambit of interpretation or application; as such, it cannot be referred to private arbitration or the CCMA in terms of clause 15 of the collective agreement. I am not persuaded that the respondent has discharged its onus to prove that the existence of an arbitration clause in a collective agreement ousts the jurisdiction of this court to determine the applicant’s contractual claim as pleaded. Evidence Evidence Hearsay JA33/99 Southern Sun Hotels Without prejudice privilege is to allow people to try to settle their disputes without fear that what they said would be held against them if the negotiations fail. Noted further that partial disclosure of privileged information may result in a loss of protection entirely. [A party] cannot be allowed, after disclosing as much as he pleases, to withhold the remainder C402/99 NUMSA & Others v Africa telephonically in the absence of consent parties must be able to at least hear the evidence given and see the person who is giving the evidence. Failure of any one of the above renders the whole process nugatory. This is so because a party against whom the evidence is led, is not able to question what was said or able to know with any degree of certainty that the witness is who he or she purports to be C595/99 Tshabalala v CCMA & Others Noted that generally a witness is not entitled to read from a prepared statement, although it is permitted in certain situations (eg the reading of contemporaneous documents). Noted further that the Commissioner had been mindful that not much weight could be placed on the statement. C1123/01 Serenite Wellness Centre (Pty) Ltd v CCMA & Others Video recordings its admission and the weight to be attached to it; it had been open to either party to lead expert evidence on the authenticity of the tape and in the absence of such evidence the Commissioner was entitled to decide on the authenticity of the tape by listening to it D889/02 Sugreen v Rycroft NO & Others video footage any such video recordings used in a tribunal should be authenticated if reliance is to be placed on them. [7] During the arbitration the witness clearly denied that she was the person on the video JR 1568/02 Moloko Salphina v Commissioner Ntsoane Diale; CCMA & Hyperama (Mayville) Noted that some leeway should be granted to an employer in applying the audi alteram partem rule flexibly, but that when relying solely on a letter of complaint the employee has the right to challenge her accusers directly C682/03 The Magic Company v CCMA, Mazwi V & Phete E cross-examination essential part of the administration of justice that a cross-examiner must put as much of his case to a witness as concerns that witness (Van Tonder v Killian NO & Andere (1992 (1) SA 67 (T) JA 45/03 ABSA Brokers (Pty) Ltd v Moshoana, GN N.O.; CCMA; Van Staden, J P parole evidence rule the Court ought not to be precluded from looking at matters outside the agreement as that would be interfering with the objective determination of the jurisdiction of the Court JA30/02 Denel (Pty) Ltd v Gerber J E F Employee failing to testify under oath; Commissioner had omitted to caution Mr Klaasen about the dangers of not testifying; failure to caution constituted a reviewable irregularity and that this was supported by Scholtz v Maseko & Others ([2000] 9 BLLR 1111(LC)). C260/03 Klaasen, OFA v CCMA; Commissioner CJ Wessels N.O. & Alexkor Ltd Medical certificate the certificates in this case were not, as laid down in Hart v Pinetown Drive-In Cinema (Pty) Ltd (1972 (1) SA 464 (D)) in the form of affidavits, and were therefore hearsay evidence. Noted further that s 3(4) of the Evidence Act made it clear that affidavits from the doctors themselves were required DA11/03 Mgobhozi, S E v Naidoo, R (arbitrator); Durban Metropolitan Bargaining Council & Durban Metropolitan Council (Housing) Hearsay to s 3 of the Evidence Act it was noted that hearsay evidence remained inadmissible in civil and criminal cases. Also noted that hearsay evidence was held to be occasionally admissible, according to the circumstances, as provided for in s 138 of the Act JR1173/03 Swiss South Africa (Pty) Ltd v Louw, K N.O.; CCMA & Narayen, G CCMA arbitrators failure to advise party to call failure to advise the employer to call additional witnesses did not amount to a reviewable irregularity. JR1734/03 Bafokeng Rasimone Platinum Mine v CCMA; Molebalwa, S N.O.; NUM & Mashabane, T proof on balance of probabilities Reviewable if stricter proof is required; see Potgietersrus Platinum Ltd v CCMA & Others (1999) 20 ILJ 2679 (LC) & Markhams v Matji NO & Others [2003] 11 BLLR 1145 (LC) JR 782/05 Avril Elizabeth Home for the Mentally Handicapped v CCMA; Zwane, B N.O.; NEHAWU & Mvumvu, J Hearsay Transcript of disciplinary hearing; the arbitrator took the view that arbitrations were hearings de novo and that the recording of the disciplinary hearing could not be accorded any weight since it amounted to hearsay; reflected that Mr Maduna had been given a fair hearing; s 3 of the Evidence Law Amendment Act 45/1988 clearly permitted hearsay evidence in certain circumstances. JR2001/05 Rand Water v Legodi, M N.O.; SA Local Government Bargaining Council (SALGBC); CCMA; The Director of the CCMA & SAMWU obo Maduna, M Circumstantial evidence Principles to prove the inference sought to be drawn must be consistent with all the proved facts; the true facts also should be such that they exclude every reasonable inference from them, save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct. JR1877/04 NUMSA & Another v Kia Motors & Others Video recording JR2980/05 Mercurius Motor Transport v Moletsane N.O. & Others circumstantial evidence it was able to infer from the proven facts that the employee was probably taking part in corrupt activities JR158/06 Dipaleseng Municipality v SALGBC & Others Witness present at hearing The court stated that, as a general rule, witnesses were normally required to wait outside a courtroom before they gave their evidence, but that this rule was not as strictly enforced in arbitration proceedings. The court held that the appropriate approach would be for commissioners to warn potential witnesses of the possible adverse consequences of them being present during the testimony of other witnesses. Probative value of the witness’s evidence in such a situation would depend on the extent to which the witness was influenced by the evidence JR955/07 Alstom Electrical Machines (Pty) Ltd v CCMA & Others Polygraph test Results should be weighed up as part of totality of evidence JR789/07 Truworths Ltd v CCMA & Others Witness present at hearing failure to produce a witness who was available and clearly able to give relevant evidence, led to an adverse inference being drawn. Other case law cited Elgin Fireclays Ltd v Webb 1947 4 SA 744 (A), C218/06 Airey & Others v GE Security (Africa) Breathalyzer test; if a factor in a specific matter was a critical one, the commissioner had to consider it, even if neither of the parties raised it. Other case law cited Maepe v CCMA and Others (2008) 29 ILJ 2189 (LAC) D483/06 Arangie v CCMA & Others circumstantial evidence assumptions did not render the inference drawn the most readily apparent and acceptable inference possible; insufficient evidence to link employee to wrongdoing JR1439/06 NUM & Another v CCMA & Others disclosure of information had to be in the form of facts. (1) disclosure of information, (2) regarding any conduct of an employer or employee of that employer, (3) made by any employee who had reason to believe, (4) that the information concerned showed or tended to show one or more of the listed improprieties. Protected Disclosure Act JS140/08 Radebe & Another v Mashoff & Others disclosure of information had to be in the form of facts. disclosure that was considered to be worthy of protection was a disclosure of information that was, on a prima facie basis, carefully documented and supported Other case law cited Greve v Denel (Pty) Ltd 2003 (4) BLLR 366 (LC), JS140/08 Radebe & Another v Mashoff & Others circumstantial evidence employer not discharging onus in establishing prima facie case D352/06 Adcan Marine v CCMA & Others doctrine of collective guilt There was no attempt by the employer to investigate the causes and circumstances of the ostensible loss of production by way of any individual enquiry. JS105/07 TAWUSA obo TAU & 305 Others v Barplats Mine Ltd (Crocodile River Mine) doctrine of collective guilt The disciplinary proceedings were arbitrarily and precipitously launched against the whole of the employees division. This was an unqualified application of the doctrine of collective guilt and the mass dismissal which ensued was indisputably unfair JS105/07 TAWUSA obo TAU & 305 Others v Barplats Mine Ltd (Crocodile River Mine) video camera JR243/05 Southern Sun Hotel Interests (Pty) Ltd v CCMA & Others section 3(1) of the Law of Evidence Amendment Act 45 of 1988 Hearsay Admissible C814/06 NUM obo I Kgapeng v CCMA & Others s 3(1) of the Law of Evidence Amendment Act 45 of 1988 C814/06 NUM obo I Kgapeng v CCMA & Others Polygraph test Not on its own conclusive proof Credibility of witness JR1595/08 Sasol Mining (Pty) Ltd v Commissioner Nggeleni & Others had made no reference to weighing the evidence on the probabilities P394/09 Pernod Ricard South Africa (Pty) Ltd v CCMA & Others Can not only rely on credibility of witness JR 2802/09 National Field Marketing (Pty) Ltd v Mngezana NO and Others Derivative jurisdiction and principle of common purpose given the opportunity to tell the employer the truth probabilities the officers were involved C655/09 SAMWU obo Abrahams and Others v City of Cape Town and Others Single witness Caution rule Does not apply in civil matters and Arbitrations. JR46/09 Minister of Correctional Services v Baloyi and Others provocation employee had had time to lodge a complaint JR1337/10 Trident SA (Pty) Ltd v Metal & Engineering Industries Bargaining Council and Others Expert evidence admissibility of expert opinion conveniently set out in Holtzhauzen v Roodt 1997 (4) SA 766 (W) at 772C 773C. JR 2191/09 Transnet Rail Engineering Ltd v Transnet Bargaining Council and Others Affidavit by person not at meeting Hearsay J2096/11 Public Servants Association of South Africa v Minister, Department of Home Affairs and Another making a finding on the credibility of witnesses also, the arbitrator should resort to credibility where the probabilities failed to point which version embraced the truth JR948/09 Director-General, Department of Public Works and Another v Public Service Sectoral Bargaining Council and Others alcohol was being sold on the farm charge read: Admitting selling liquor on employers property to company employees and others JR 433/10 Rechs Nurseries (Pty) Ltd v CCMA and Others arbitrators reliance on a version that was not put to a witness was a reviewable irregularity JR731/10 Urban Africa Security (Pty) Ltd v CCMA and Others Turquand rule, applicant was entitled to assume in good faith that Canca had the necessary authority to appoint him J1788/09 Southgate v Blue IQ Investment Holdings (Pty) Ltd Circumstantial evidence JR2777/09 Popcru obo Ndokweni v Maritz NO and Others Circumstantial evidence Other case law cited National Union of Metalworkers of SA and Another v KIA Motors and Others (2007) 28 ILJ 2283 (LC) at para 21; ; a JR2777/09 Popcru obo Ndokweni v Maritz NO and Others Circumstantial evidence Other case law cited AA Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A); JR2777/09 Popcru obo Ndokweni v Maritz NO and Others Circumstantial evidence Other case law cited Rex v Blom 1939 AD 188 JR2777/09 Popcru obo Ndokweni v Maritz NO and Others Circumstantial evidence Other case law cited Victor and Another v Picardi Rebel (2005) 26 ILJ 2469 (CCMA) JR2777/09 Popcru obo Ndokweni v Maritz NO and Others Polygraph test for recruitment as only means Failure to indicate in advertisement that polygraph result will be used not an unfair labour practice JR1559/09 Sedibeng District Municipality v SA Local Government Bargaining Council and Others Evidence Single witness cautionary rule JR435/08 Northam Platinum Mines v Shai NO Evidence Single witness cautionary rule Other case law cited S v Carolus 2008 (2) SACR 207 (SCA) JR435/08 Northam Platinum Mines v Shai NO Hearsay The LAC then turned to a discussion of the seven factors listed in the Act, which were: the nature of the proceedings; the nature of the evidence; the purpose for which the evidence was tendered; the probative value if the evidence; the reason the evidence was not given by the person upon whose credibility the probative value of the evidence depended; the prejudice to any party which the admission of the evidence might entail; and any other factor which should be taken into account according to the court. JA46/07 Mapurunyane v CCMA & Others Hearsay; Statement evidence S3 Law of evidence and amendment act JR2134/08 POPCRU obo Maseko v Department of Correctional Services & Others Mitigate damages Mitigation aggravating the length of the applicants employment, her clean record and other mitigating factors were all offset by the fact that the applicants refusal endured for a substantial period of time and that she continued in the interim effectively to do none of the work for which she was employed JR2459/09 Public Servants Association obo Khan v Tsabadi and Others Procedurally unfair dismissal Employer raising allegations of dishonesty at arbitration for which employee was never charged; Employer not permitted to do so D875/06 Rennies Distribution Services (Pty) Ltd v Bierman N.O. & Others Failure to call material witness; Adverse inference; Can only be drawn if the witness was available and evidence would be relevant JR492/07 Gold Fields Mining SA (Pty) Ltd Property Division v CCMA & Others Hearsay evidence admissibility should be explained and such evidence handled carefully JR1996/03 The Foschini Group v Maidi & Others Failure to tender evidence ; Adverse inference may be drawn JS595/05 Sekgobela v State Information Technology Agency (Pty) Ltd Evidence continue Employees version regarding alleged procedural unfairness not raised in her opening statement nor put to employers witnesses JR208/03 J D Trading (Pty) Ltd t/a Giddys Electric Express v CCMA & Others disputed facts in affidavit case had to be dismissed on the grounds that disputes of facts arose from the affidavits presented to the court JR2619/05 Masombuka v Mashiane N.O & Others disputed facts in affidavit Other case law cited Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (AD) (see also National Director of Public Prosecution v Zuma (2009) ZASCA 1). JR2619/05 Masombuka v Mashiane N.O & Others circumstantial evidence rejected the cogency, reliability and admissibility of the circumstantial evidence itself. This was not only an unreasonable approach, but clearly wrong in law. JR2289/07 Pick n Pay Retailers (Pty) Ltd v CCMA & Others hearsay two letters supporting employee; witnesses not called JR2766/07 The Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others CCMA legal flexibility probabilities JA65/05 Le Monde Luggage CC t/a Pakwells Petje v Dunn N.O. & Others Lying under oath not relevant re determine unfair dismissal but compensation JA48/04 Maepe v CCMA & Another Circumstantial evidence Video footage JA46/07 Mapurunyane v CCMA & Others failing to call the nursing sister to testify, the appellant had failed to show negligence; omitted to consider evidence placed at his disposal JA37/09 Afrox Healthcare Ltd v CCMA and Others Cautionary rule, treat the evidence of a witness (another inmate) with great caution as he had demanded payment or was paid for his evidence. There was no factual basis for this finding on the record. JR3075/09 SA Custodial Management (Pty) Ltd v CCMA and Others refusal to allow the affidavit of the manager of the diary, not dealt with the substantial merits of the dispute. JA12/10 Matsekoleng v Shoprite Checkers (Pty) Ltd Video, Commissioners failure to investigate further depicted a manifest failure to determine a material issue. JR 1010/11 Airports Company South Africa v Khumalo and Others Commissioner phoning employer later without employee's knowledge, Reviewable. C887/2011 Lithotech Africa Mail Cape v Statutory Council for the Printing, Newspaper and Packaging Industries and Others Polygraph test, evidence in corroboration, These arguments were fallacious and had to be dismissed. JR 2732/2010 Mustek Ltd v Tsabadi NO and Others Dismissal theft, minutes of disciplinary enquiry, admission. JA 10/2010 South African Breweries Ltd v Retail and Allied Workers Union and others Suspicion some dishonest intentions, the employer could not justifiably rely on that suspicion as a ground to dismiss the employee for misconduct because suspicion, however strong or reasonable it may appear to be, remained a suspicion and did not constitute misconduct. There needed to be tangible and admissible evidence. (DA 4/11) [2013] ZALAC 29 Mbanjwa v Shoprite Checkers (Pty) Ltd and Others Lead evidence to rebut Employer failing to lead evidence to rebut contentions placed in dispute by employee D560/12 National Brands Ltd t/a Entyce Beverages v Shah and Others Hearsay evidence Could nevertheless admit such evidence if the party against whom it was sought to be admitted could counter the effect of such evidence by other means. Issues such as whether the applicant was able to explain and provide a reasonable justification for the absence of a witness was relevant and whether the applicant provided any corroborating evidence on which the hearsay evidence was premised was yet another issue. (JR2259/11) [2014] ZALCJHB 36 Shoprite Checkers (Pty) Ltd v CCMA and Others Not calling witness Party refused leave to call a witness on the basis that in the opinion of the arbitrator the witness could add nothing of value. (JR2819/09, JA53/11) [2014] ZALAC 14 Blue Financial Services Ltd v CCMA and Others Evidence by Skype allowed. Witness in Australia. C751/2013 Simmers v Campbell Scientific Africa (Pty) Ltd Hearsay evidence Statement of witness used at hearing as deponent afraid to testify as she had been threatened. Arbitrator ruling that chairperson of enquiry should have arranged for evidence by way of conference call and failure to do so rendered this an irregularity. Even if this evidence had been disregarded ultimate decision would stay the same. Evidence admissible. (JR3323/10) [2014] ZALCJHB 337 Harmony Gold Mining Co Ltd v CCMA and Others polygraph testing JA 54/14 GEMALTO SOUTH AFRICA (PTY) LTD reasons for which employees dismissed not serving the real purpose of the polygraph test no rational link between the dismissal and the alleged misconduct polygraph testing JR1471/2011 Fairway at Randpark Operations (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1471/2011) [2015] ZALCJHB 391 (13 November 2015) standard employment contract signed by employees contains a clause in terms of which employees have contractually bound themselves to undergo polygraph testing as well as breathalyser testing should the employer require them to do so [29] In light of all the evidential material before me I find that the evidence at both the original disciplinary enquiry as well as at the arbitration points strongly in favour of the guilt of the individual respondents. This must of course include the fact that an adverse inference ought to have been drawn against them by reason of their manifest breach of contract in refusing to undergo polygraph testing without any reasons having been given for this. Misconduct: unauthorized possession JR1685/12 Massbuild (Pty) Ltd t/a Builders Warehouse v Commission for Conciliation, Mediation And Arbitration and Others (JR1685/12) [2015] ZALCJHB 234 (4 August 2015) Woolworths (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2011) 32 ILJ 2455 (LAC) at para 34 Where an employee is found in unauthorised possession of company property, the evidentiary burden shifts to him to justify such misconduct. persistent and prolonged adjournments JR 2610/12 Sepang v Dibakwane and Others (JR 2610/12) [2015] ZALCJHB 235 (4 August 2015) Once a representative repeatedly asks for an adjournment in order to take instructions from a client, especially during the course of cross-examination of a witness, it can only confirm that the representative is least prepared to deal with the matter Credibility JR483/13 Metrorail (PRASA) v SATAWU obo Tshabalala and Others (JR483/13) [2015] ZALCJHB 422 (5 October 2015) Sasol Mining (Pty) Ltd v Ngqeleni NO and others One of the commissioner's prime functions was to ascertain the truth as to the conflicting versions before him. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party's version. The commissioner manifestly failed to resolve the factual dispute before him on this basis. . . That failure, and the fact that the award clearly may have been different had the commissioner properly acquitted himself, renders the award reviewable on account of a gross irregularity committed by the commissioner in the conduct of the arbitration proceedings. Blitz Printers v Commission for Conciliation, Mediation and Arbitration and Others . The second respondent, had he discharged his duties properly, was compelled to determine this conflicting evidence and thus decide what evidence to accept, and what to reject. The second respondent had to assess credibility and probabilities and come to a proper and reasoned finding as to what evidence to accept. The second respondent did none of this . tacit term JR483/13 Metrorail (PRASA) v SATAWU obo Tshabalala and Others (JR483/13) [2015] ZALCJHB 422 (5 October 2015) De Lange v ABSA Makelaars (Edms) Bpk The test for establishing the existence of a tacit term, which this court has recognized and applied in many cases, is the so-called 'bystander' or 'officious bystander' test. In City of Cape Town (CMC Administration) v Bourbon-Leftley & another NNO, Brand JA set out the legal principles governing tacit terms as follows:'[19] ... [A] tacit term is based on an inference of what both parties must or would necessarily have agreed to, but which, for some reason or other, remained unexpressed. Like all other inferences, acceptance of the proposed tacit term is entirely dependent on the facts. . [20] In deciding whether the suggested term can be inferred, the court will have regard primarily to the express terms of the contract and to the surrounding circumstances under which it was entered into. It has also been recognised in some cases, however, that the subsequent conduct of the parties can be indicative of the presence or absence of the proposed tacit term . balance of probabilities JR715/13 Pick 'n Pay Hypermaeket v Commission for Conciliation, Mediation and Arbitration and Others (JR715/13) [2015] ZALCJHB 393 (12 November 2015) 12] It is important to mention that it is sufficient if an employer adduces enough evidence in support of its case to establish a plausible case. An employer is not required to present the best possible case it could taking into account all the evidence potentially available. Obviously, there is a risk that the evidence it does rely on may be found to be insufficient at the end of the case to prove its case on a balance of the probabilities on a consideration of all the evidence placed before the arbitrator. However, that will only happen if its version is not more probable than that of the employee on all the evidence that was presented. As long as the employer makes out a plausible version supported by evidence and as long as that version is also more probable than that of the applicant, even if it could have made out a better or stronger version[2], it should still succeed on the balance of probabilities. Dismissal: existence JS40/14 Truter v Heat Tech Geysers (Pty) Ltd (JS40/14) [2016] ZALCJHB 83 (2 March 2016) Thus, as a matter of principle, employment can be regarded as terminated based on the objective construction of the employers conduct which unequivocally repudiates the contract. Marneweck v SEESA (2009) 30 ILJ 2745 (LC) [31] I align myself with the view expressed by Van Niekerk AJ above and wish to add that the enquiry into whether or not there is a dismissal goes beyond investigating whether the employee used the word dismissal in terminating the employment relationship with the employee. In other words it is not the label placed on the termination that determined whether or not there was a dismissal. Truth JR2705/13 Airchefs (Pty) Ltd v Mphahlele and Others (JR2705/13) [2016] ZALCJHB 93 (3 March 2016) Van Zyl v KPMG Services (Pty) Ltd and Others (2014) 35 ILJ 1656 (LC) at para 6. For several years the labour courts have held that the duty of an arbitrator when confronted by two irreconcilable versions, is essentially the same as that of a judge in a trial court, Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the courts finding on the credibility of a particular witness will depend on its 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 candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness reliability with depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probabilities and improbabilities of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when the courts credibility findings compel it in one direction and evaluation of the general probabilities in another. The more convincing the former, the less convincing will be latter. But when all factors are equipoised probabilities prevail. This position seems to have been consistently adopted since at least 2007 (see Vodacom Service Provider Co (Pty) Ltd v Phala NO and Others(2007) 28ILJ1335 (LC),Lukhanji Municipality v Nonxuba NO and Others(2007) 28 ILJ 886 (LC) and has been applied fairly consistently since then (see for example, Sasol Mining (Pty) Ltd v Ngqeleni NO and Others(2011) 32ILJ723 (LC),SATAWU obo Semate v CCMA and Others(unreported Labour Court decision case no JR341/2010 (18 December 2012)). In Sasol Mining One of the commissioners prime functions was to ascertain the truth as to the conflicting versions before him. As I have noted, this much the commissioner appears to have appreciated. What he manifestly lacked was any sense of how to accomplish this task, or which tools were at his disposal to do so. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version. credibility of witnesses JR160/14 Mogodiseng v Commission for Conciliation, Meditation and Arbitration and Others (JR160/14) [2016] ZALCJHB 276 (3 March 2016) Mabona v Minister of Law and Order 1988 (2) South Africa 654 (SE) at 662(c). The credibility of witnesses and the probability or improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the plaintiffs version and investigation where questions of demeanour and impressions are measured against the content of a witness’s evidence, where the importance of any discrepancies or contradictions are assessed and where a particular story is tested against facts which cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conviction that one version is more probable and should be accepted and that therefore the other version is false and may be rejected with safety. technique for resolving disputes of fact JR1396/11 Ullmann Bros (Proprietary Limited) v Mphaphuli N.O. and Others (JR1396/11) [2016] ZALCJHB 118 (24 March 2016) Stellenbosch Farmers Winery Group Ltd and Another v Martell and Cei SA and Others 2003 (1) SA 11 at para 5. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. factual disputes are to be determined JR 1595/08 SASOL MINING (PTY) LTD vs CCMA FW Group Ltd & another v Martell et Cie & others2003 (1) SA 11(SCA) The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; (c) the probabilities. As to (a), the courts finding on the credibility of a particular witness will depend on its 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 candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a courts credibility findings compel it in one direction and it evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail (at 14 I -15 D). Tshishonga v Minister of Justice and Constitutional Development and Another(2007) 28 ILJ 195 (LC) at para 112 But 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 facts as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him or even damage his case. factual disputes are to be determined JA124/2013 Metrorail (PRASA) V SATAWU obo Ndlovu and Others (JA124/2013) [2016] ZALAC 3 (3 February 2016) Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) The technique generally employed by the courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of various factual witnesses; (b) their reliability and (c) the probabilities. As to (a), the courts finding on the credibility of a particular witness will depend on its 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’s candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or the improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a courts credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing the latter. But when all factors are equipoised probabilities prevail. Evidence continue Hearsay JR1207/15 Sangweni v Matshaka N.O. and Others (JR1207/15) [2016] ZALCJHB 173 (10 May 2016) failure to consider the weight to be given to the hearsay evidence which was the only evidence before him directed at the onus of proving the substantive fairness of the dismissal, constituted a gross irregularity Factual finding without support JR1914/2014 Liebenberg v Incredible Connection and Others (JR1914/2014) [2016] ZALCJHB 182 (17 May 2016) Daymon Worldwide SA Inc v Commission for Conciliation, Mediation and Arbitration and Others (2009) 30 ILJ 575 (LC) at paras 36, 40 and 41. where an arbitrator uses a factual finding for which there is no support in evidence to develop a conclusion, the actions of the arbitrator constitute a gross irregularity. In such an instance, according to the Court, the arbitrator cannot be said to have applied her mind to the evidence before her and this could lead to unfair consequences for the parties. Telephone call disclosure JR1022/12 NUMSA and Another v Rafee N.O. and Others (JR1022/12) [2016] ZALCJHB 512; [2017] 2 BLLR 146 (LC) (31 May 2016) Protea Technology Ltd and Another v Wainer and Others 1997 (9) BCLR 1225 (W) the applicant was not entitled to intercept private calls made by an employee but that where the employee was engaged in matters pertaining to the employers business, the employee lost the right to the privacy of those communications: The first respondent was employed by the applicants in a position of trust. The telephone conversations were conducted from the applicants business premises within business hours. The applicants were entitled to require the first respondent to account for his activities during their time. (It will be recalled, in addition, that the first respondent was contractually obliged to devote his full attention to the affairs of the group.) It may be accepted that, even in this context, and within reason and at the direction of the employer, an employee’s private life is not excluded. Thus he may receive and make calls which have nothing to do with his employers business. The employee making such calls has a legitimate expectation of privacy. Although he must account to his employer if so required for the time so spent, the employer cannot compel him to disclose the substance of such calls. The content of conversations involving his employers affairs (whether directly or indirectly) is a different matter. The employer is entitled to demand and obtain from an employee as full an account as the latter is capable of furnishing. In this sense also, the company can fairly be regarded as the owner of the knowledge in the employees mind: cf. Bernsteins case at 796EF (although the context differs from the present)...As soon as the employee abandons the private sphere of his conversation for that of the affairs of his employer he loses the benefit of privacy. The determination of that moment will not generally be one of great difficulty. Hearsay JR2344/2012 Mohokare Local Municipality v Makhube and Others (JR2344/2012) [2016] ZALCJHB 349; (2017) 38 ILJ 421 (LC) (28 July 2016) the Auditor General’s report was inadmissible on the basis that it was hearsay. Concorde Plastics (Pty) Ltd v NUMSA and Others[1998] 2 BLLR 107 (LAC). It is trite that documents are generally deemed to be hearsay evidence until such time as it has been proven that they are what they purport to be Wright v Wright and Another 2015 (1) SA 262 (SCA) at para 15. A Court, in its discretion, may permit such evidence in terms of the Act hearsay evidence were rendered more flexible by the coming into operation of the Law of Evidence Amendment Act. The Act does not propose an absolute rule that hearsay evidence is inadmissible. In considering hearsay evidence, the Court will have regard to factors such as the nature and purpose of the evidence, the probative value and reliability, the reason why direct evidence was not submitted, the possible prejudice to the other party and all the other facts of the case. These are, inter alia, the factors which, according to section 3 of the Act, a Court should take into account. Makhatini v Road Accident Fund 2002 (1) SA 511 (SCA) at para 24. the admission of hearsay evidence is not a mere formality and that the admission of the evidence is not to be had merely for the asking. Hearsay: transcripts of disciplinary hearing JR56/14 Minister of Police v M and Others (JR56/14) [2016] ZALCJHB 314; (2017) 38 ILJ 402 (LC) (19 August 2016) [46] In light of what I have stated above, I therefore find that the commissioner erred in unreasonably assigning minimal value to the transcripts. This mishandling of the evidence would have distorted the outcome of the matter, particularly considering that RM himself did not testify. For this reason alone the award must be set aside. facts must be proven JR999/2014 Arcelormittal South Africa Limited v Pretorius and Others (JR999/2014) [2016] ZALCJHB 351 (14 September 2016) De Beers Consolidated Mines Ltd v CCMA and others (2000) 21 ILJ 1051 (LAC). The onus is thus on the employer to prove the facts upon which it relies for the dismissal. If the facts upon which the employer relies are not proven at the end of the arbitration proceedings, then cadit quaestio, the employer has failed to prove the fairness of the dismissal. On the other hand, if the employer does prove the facts upon which it relies, then the arbitrator must make a determination as to whether or not the dismissal is unfair and only if the arbitrator is so satisfied may he or she order reinstatement. witness being influenced by what they may have heard whilst sitting in JR452/15 Als Chemex South Africa (Pty) Ltd v Khan and Others (JR452/15) [2016] ZALCJHB 415 (2 November 2016) C/K Alliance (Pty) Ltd t/a Greenland v Mosala NO (2009) 30 ILJ 571 (LC). As a general rule, witnesses are normally required to wait outside the court until such time when they would have presented their evidence. The reason for this is to guard against the version of a witness being influenced by what they may have heard whilst sitting in during the testimony of other witnesses. This rule is generally not as firmly enforced in arbitration proceedings, and correctly so, as is the case in the courts. This being the case, it seems to me that the appropriate approach is that commissioners are duty bound to warn potential witnesses or those that may have already been identified as such of the possible consequences of their presence during the testimony of other witnesses. But where, for any reason, it turns out later that a witness sat in during the testimony of other witnesses, that should not disqualify such a person from testifying. At best, what the commissioner should do in such a situation is to allow the witness to testify and then evaluate at the end of the proceedings when assessing his or her testimony as to whether his or her version may have been influenced by the version of the other witnesses who testified while present in the hearing. circumstantial evidence JR472/1 Triomf Fertilizers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR472/15) [2017] ZALCJHB 15 (20 January 2017) De Wet v President Versekeringsmaatskappy 1978 (3) SA 495 (C) at 500E F I agree with him that various other probabilities existed, that were not properly investigated. When one deals with circumstantial evidence as is the case here, the inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn. If the facts permit more than one inference, the most plausible inference must be selected. Distell Ltd vs CCMA (2014) 35 ILJ 2176 (LC) at paragraphs 65 and 67 The danger with circumstantial evidence on the other hand, is that in addition to the possibility that a witness may be lying or mistaken, the evidence may be capable of more than one logical explanation without it being clear what other possible explanations exist or the judge, in analysing the evidence may embark upon a non sequitur. Thus circumstantial evidence may, at first blush, appear to be much more compelling than it really is, largely because the trier of fact does not have sufficient knowledge or understanding of the particular field to be able to question the evidence and its potency or because the trier of fact does not understand how to make sense of it. One must be careful to distinguish between an inference and an assumption or speculation. An inference is drawn from an existing fact; speculation has no factual foundation to it. factual dispute JR2514/13 Global Supply Chain Services (Pty) Ltd t/a Globaltrack v Van Spaendonck and Others (JR2514/13) [2017] ZALCJHB 190 (3 March 2017) SFW Group Ltd & another v Martell et Cie & others 2003 (1) SA 11 (SCA) technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized as follows. To come to a conclusion on the disputed issues a court must make findings on: (a) the credibility of the various factual witnesses; (b) their reliability; (c) the probabilities. As to (a), the courts finding on the credibility of a particular witness will depend on its 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 candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a courts credibility findings compel it in one direction and it evaluation of the general probabilities in the other. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail (at 14 I -15 D). hearsay JR1920/13 National Commissioner of Police and Another v Safety and Security Sectoral Bargaining Council and Others (JR1920/13) [2017] ZALCJHB 82 (8 March 2017) Arbitrator rejected the evidence of the applicants witnesses in this respect on the ground that it constituted hearsay evidence. Gaga v Anglo Platinum Limited and Others [2012] 3 BLLR 285 (LAC) paras 45 and 46. The exclusion of evidence that ought to be admitted will be either misconduct in relation to the duties of a commissioner or a gross irregularity in the conduct of the arbitration proceedings, as contemplated in section 145(2)(a) of the LRA...Given the nature of the evidence which the first respondent proposed to lead, and the fact that the allegations would have been known to the appellant, it would not have been unfair or oppressive to have allowed the evidence because the appellant had adequate notice and was in a position to deal with it... By itself, it constituted an irregularity sufficient to set aside the award, because without more it resulted in the commissioner failing to have regard to material facts and thereby impeded a full and fair determination of the issues. In certain instances where evidence is irregularly not admitted by a commissioner, the only fair remedy may well be for the matter to be remitted to the CCMA. Matsekoleng v Shoprite Checkers (Pty) Ltd [2013] 2 BLLR 130 (LAC) at paras 41-3. Section 3(1)(c) of the said Act [Law of Evidence Amendment Act 45 of 1988] confers a discretion on a court (or Tribunal) in terms of admitting hearsay evidence if, in the opinion of the court (or Tribunal), as the case may be, it is in the interests of justice to admit such hearsay evidence. The fact that the respondents representative would not have been in a position to cross-examine the author of, or deponent to, the affidavit if it was admitted, was not, in my opinion, a legally sound ground to have refused admission of the affidavit, in the light of section 3(1)(c). That aspect of the matter would only be relevant on the question of the evidential weight to be attached to the affidavit evidence concerned. As the matter stood, it did not appear that the Commissioner properly applied his mind on this issue, if at all. In my view, the Commissioners failure in this regard constituted a serious misdirection and a gross irregularity, on the Commissioners part in the conduct of the arbitration proceedings, which rendered the award reviewable and liable to be set aside. In any event, it seemed to me that, by applying the pre-1988 strict common law rule against hearsay evidence on the admission of the affidavit, as the Commissioner apparently did, the Commissioner did not thereby deal with the substantial merits of the dispute with the minimum of legal formalities as required of him by section 138(1) of the LRA. In Local Road Transportation Board and another v Durban City Council and Another the Appellate Division (now the Supreme Court of Appeal (Holmes JA) stated: A mistake of law per se is not an irregularity but its consequences amount to a gross irregularity where a judicial officer, although perfectly well-intentioned and bona fide, does not direct his mind to the issue before him and so prevents the aggrieved from having his case fully and fairly determined. In my view, therefore, the failure by the Commissioner to apply his mind properly of the issue of admissibility of Mr Roberts affidavit constituted a material error of law and a gross irregularity on the part of the Commissioner which prejudiced the appellant in her right to a fair hearing. balancing probabilities JR614/16 Makwabe v Commission for Conciliation, Mediation and Arbitration and Others (JR614/16) [2017] ZALCJHB 216 (6 June 2017) The evaluation of proof applicable is one that applies in civil matters, not in criminal cases. Govan v Skidmore 1952 (1) SA 732 (N) at 734. Now it is 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 although its so doing does not exclude every reasonable doubt. In a criminal case, however, as I understand it, every fact material to establish the guilt of the accused must, unless it is admitted, be established by proof beyond reasonable doubt, and inferences from facts must, in order to be permissible, be such as leave no reasonable doubt of their propriety and correctness. That is a difference between the proof requisite in civil and criminal proceedings. Rex v. Blom, supra, was a criminal case, and, in my opinion, it is a fallacy to suppose that the second principle in Bloms case represents the minimum degree of proof required in a civil case, for, in finding facts or making inferences in a civil case, it seems to me that one may, as Wigmore conveys in his work on Evidence (3rd ed., para. 32), 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 be not the only reasonable one. interpreting any document JR1624/16 Commission for Conciliation, Mediation and Arbitration v Commission for Conciliation, Mediation and Arbitration and Others (JR1624/16) [2017] ZALCJHB 240 (23 June 2017) Commission for Conciliation, Mediation and Arbitration v MBS Transport CC and others [2016] 10 BLLR 999 (LAC) at para. 15. Novartis SA (Pty) Ltd v Maphil Trading (Pty) Ltd 2016 (1) SA 518 (SCA) at para [29][also reported at [2015] 4 All SA 417 (SCA) Ed]; KPMG Chartered Accountants SA v Security Ltd and another 2009 (4) SA 399 (SCA) at para [39] [reported as KPMG Chartered Accountants v Securefin Ltd and another [2009] 2 All SA 523 (SCA) Ed]; 2012 (4) SA 593 (SCA) at para [18] [sic] It is trite that, when interpreting any document, regard must be had to the language used as well as the context under which the document saw the light of the day. This holds true for any document including contracts and legislative texts. There is no need for any ambiguity before the context is considered Bartman v Dempers 1952 (2) SA 577 (A) at 580 B-C, Minister of the Interior v Confidence , Property Trust (Pty) Ltd and others 1956 (2) SA 365 (A) at 372H 373 A, Bellairs v Hodnett and another 1978 (1) SA 1109 (A) at 1148 F-G, Kellaway in the Principles of Legal Interpretation of Statutes, Contracts and Wills at page 321, 1995 Edition There is a well-known rule of construction that no statute is to be construed so as to have a retrospective operation (in the sense of taking away or impairing a vested right acquired under existing laws) unless the Legislature clearly intended the Statute to have that effect. See Peterson v Cuthbert and Co. Ltd., 1945 AD 420 at p. 430. two disputing versions: failed to consider inherent probabilities JR2676/13 Thohoyandou Spar v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (JR2676/13) [2017] ZALCJHB 247 (27 June 2017) Arbitrator failed to consider inherent probabilities where he was confronted with conflicting versions. Award is reviewed and set aside. The Applicants case is that the arbitrator failed to provide a reasonable explanation as to why he preferred to accept Mandiwanes version and reject the evidence of the Applicants witnesses that Mandiwane was not dictated as to what he should write in the report. Further that the arbitrator made no credibility findings against the Applicants witnesses and attached no weight to Mandiwanes lack of credibility.... it was one of the prime functions of a commissioner to ascertain the truth as to the conflicting versions before him. Sasol Mining (Pty) Ltd v Ngeleni NO and Others (2011) 32 ILJ 723 (LC) at 727C-F. . . . assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner. As Cele AJ (as he then was) observed in Lukhnaji Municipality v Nonxuba NO and others [2007] 2 BLLR 130 (LC), while the LRA requires a commissioner to conduct an arbitration hearing in a manner that the commissioner deems appropriate in order to determine the dispute fairly and quickly, this does not exempt the commissioner from properly resolving disputes of fact when they arise.... What he manifestly lacked was any sense of how to accomplish this task, or which tools were at his disposal to do so. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version. The commissioner manifestly failed to resolve the factual dispute before him on that basis. Instead, he summarily rejected the evidence of each of the applicants witnesses on grounds that defy comprehension. Sidumo and another v Rustenburg Platinum Mines Ltd and others[(2007) 28 ILJ 2405 (CC)[2007] ZACC 22; [2007] 12 BLLR 1097 (CC),] Ngcobo J stated at 268 '[W]here a commissioner fails to have regard to the material facts, the arbitration proceedings cannot, in principle, be said to be fair because the commissioner fails to perform his or her mandate. In so doing, in the words of Ellis the commissioner's action prevents the aggrieved party from having its case fully and fairly determined. This constitutes a gross irregularity in the conduct of the arbitration proceedings, as contemplated by s 145(2)(a)(ii) of the LRA. And the ensuing award falls to be set aside not because the result is wrong but because the commissioner has committed a gross irregularity in the conduct of the arbitration proceedings.' polygraph JR1848/2012 Cash Paymaster Services (Northern) (Pty) Ltd v Maake N.O. and Others (JR1848/2012) [2017] ZALCJHB 246 (29 June 2017) the only evidence, after all is said and done, which lay against Ntlhekoa was that of the polygrapher DHK Supply Chain (Pty) Ltd and others v National Bargaining Council for the Roadfreight Industry and others [2014] 9 BLLR 860 (LAC) sets out the jurisprudence on polygraph tests and concludes that In summary, the respectability of polygraph evidence, at best, remains an open question, and any litigant seeking to invoke it for any legitimate purpose, must, if needs be, adduce expert evidence of its conceptual cogency and the accuracy of its application in any given case; 37.2.5 It does not appear that the polygrapher was led as an expert in the traditional sense. No expert notice was submitted. Notwithstanding this, I cannot fault the Commissioners finding on the corroborative value of Snyman’s evidence; general probabilities JR1232/2016 Shabangu v Commission for Conciliation, Mediation and Arbitration and Others (JR1232/2016) [2017] ZALCJHB 336 (29 August 2017) National Employers General Insurance CO v Jagers 1984 (4) SA 437 E AT 440 D the court will weigh up and test the Plaintiffs allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and if the balance of probabilities favours the plaintiff, then the court will accept his version as being probably true. hearsay JR2111/2014 Exxaro Coal (Pty) Ltd v Chipana and Others (JR2111/2014) [2017] ZALCJHB 338 (6 September 2017) Matsekelong v Shoprite Checkers (Pty) Ltd (2013) 2 BLLR 13 LAC [41] Section 3(1)(c) of the said Act confers a discretion on a court (or tribunal)in terms of admitting hearsay evidence if, in the opinion of the court (or tribunal), as the case may be, it is in the interests of justice to admit such hearsay evidence. The fact that the respondents representative would not have been in a position to cross examine the author of, or deponent to, the affidavit if it was admitted, was not, in my opinion, a legally sound ground to have refused admission of the affidavit, in the light of section 3(1)(c). That aspect of the matter would only be relevant on the question of the evidential weight to be attached to the affidavit evidence concerned. As the matter stood, it did not appear that the commissioner properly applied his mind on this issue, if at all. In my view, the commissioners failure in this regard constituted a serious misdirection and a gross irregularity, on the commissioners part, in the conduct of the arbitration proceedings, which rendered the award reviewable and liable to be set aside. civil standard of proof to the conflicting versions by considering the force, strength and weight of the evidence JR810/15 NTM obo Tunyiswa v Commission for Conciliation, Mediation and Arbitration and Others (JR810/15) [2017] ZALCJHB 374 (10 October 2017) The South African Law of Evidence Zeffertt and Paizes 2nd Edition at p 48 [13] The Second Respondent was enjoined to apply the civil standard of proof to the conflicting versions by considering the force, strength and weight of the evidence. Where the quantum of proof requires a preponderance or balance of probability, it means that the probability of the truth of a particular averment is measured or balanced against the probability of it being untrue. Administration of an Oath or Affirmation JR2215/15 South African Police Services v Safety and Security Sectoral Bargaining Council and Others (JR2215/15) [2017] ZALCJHB 474 (4 December 2017) Regulation 7.1 of the Regulations Governing the Administration of an Oath or Affirmation published in Government Gazette No R1258 of 21 July 1972. A Commissioner of Oaths shall not administer an oath or affirmation relating to a matter in which he has an interest. cross-examination JR2386/15, J323/16 Pillay v Commissioner of South African Police Service and Others (JR2386/15, J323/16) [2017] ZALCJHB 502 (6 December 2017) The President of the RSA and others v South African Rugby Football Union and Others [1999] JOL 5301 (CC) [61] The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness's attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness's testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn and has been adopted and consistently followed by our courts (Own emphasis) theft of fuel JR342/11 La Crushers v Commission for Conciliation, Mediation and Arbitration and Others (JR342/11) [2017] ZALCJHB 476 (18 December 2017) [21] Simply, the third respondent failed to provide a sufficient and plausible explanation in response to the case laid out by the applicant, and therefore the prima facie case against him had to prevail. It is incomprehensible how the Commissioner saw the third respondents version as more convincing than the applicants case. [22] Irrespective of the label attached to charge, the facts proved by the applicant established gross dishonesty on the part of the third respondent, the nature of which was sufficient to destroy the element of trust essential to his position as a manager and an employment relationship. [18] The third respondent had to give an explanation for not adhering to the refuelling procedure, for the inordinate amount of fuel dispensed into the vehicle, particularly outside of working hours when he would have had the vehicle and the fact that when he was on leave, excessive refuelling ceased. credibility of evidence CA6/2016 South African Breweries (Pty) Ltd v Hansen and Others (CA6/2016) [2017] ZALAC 29; (2017) 38 ILJ 1766 (LAC); [2017] 9 BLLR 892 (LAC) (25 May 2017) The Commissioner was, as such, obliged to assess the credibility of each of the witnesses who testified at the arbitration, and in doing so, was required to consider the prospects of any partiality, prejudice or self-interest on their part and the weight to be attached to their testimony by reason of its inherent probability or improbability.[15] At the very least, in relation to the witnesses who testified in favour of SAB, the Commissioner ought to have considered (i) their candour and demeanour; (ii) their bias, latent and blatant compared to that of Hansen; (iii) internal and external contradictions in their evidence; (iv) the probability or improbability of particular aspects of their versions; and (v) the calibre and cogency of their performance compared to that of Hansen. It is, however, clear from her award, that the Commissioner failed to consider any of these things. Sasol Mining (Pty) Ltd v Ngqeleni NO and Others (2011) 32 ILJ 723 (LC) at para 9. guide and principle with regard to the evaluation of evidence: PA8/16 Fort v COEGA Development Corporation (Pty) Ltd and Others (PA8/16) [2017] ZALAC 50 (17 August 2017) S v Trainor 2003 (1) SACR 35 (SCA) at 41 para 9. A conspectus of all the evidence is required. Evidence that is reliable should be weighed alongside such evidence as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of that evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of course, must be evaluated against the onus on any particular issue or in respect of the case in its entirety. The compartmentalised and fragmented approach is illogical and wrong. See Medscheme Holdings (Pty) Ltd & another v Bhamjee 2005 (5) SA 339 (SCA) at 345A-C para 14. [52] The SCA held that an assessment of the evidence based on demeanour, without regard to the wider probabilities, constitutes a misdirection legal representative CA16/2016, C285/2014 South African Breweries (Pty) Ltd v Louw (CA16/2016, C285/2014) [2017] ZALAC 63; [2018] 1 BLLR 26 (LAC); (2018) 39 ILJ 189 (LAC) (24 October 2017) [4] To state the obvious, litigation is complex. Among the duties of legal practitioners is to conduct cases in a manner that is coherent, free from ambiguity and free from prolixity. True enough, the holy grail of translating what is complex into simplicity is not always attainable, but the ground rules are irrefrangible: say what you mean, mean what say and never hide a part of the case by a resort to linguistic obscurities. The norm of a fair trial means each side being given unambiguous warning of the case they are to meet. Moreover, these requirements are not mere civilities as between adversaries; the court too, is dependent upon the fruits of clarity and certainty to know what question is to be decided and to be presented only with admissible evidence that is relevant to that question. Making up ones case as you go along is an anathema to orderly litigation and cannot be tolerated by a court. Counsels duty of diligence demands an approach to litigation which best assists a court to decide questions and no compromise is appropriate. bear an evidential burden JR2029/15 Segona v Education Labour Relations Council and Others (JR2029/15) [2017] ZALCJHB 120 (7 February 2017) [53] The case advanced by the Third Respondent called for a proper explanation for the under-banking from the Applicant. This need for an explanation arises, as set out above, not because the Applicant was the schools Accounting Officer, but because she was a school official factually involved in the handling of its finances. Even in circumstances where the employer bears the onus (which was not the situation before the Commissioner) Brassey Unfair Dismissals and Unfair Labour Practice in Brassey et El, Commentary on the Labour Relations Act, (revision service 2: 2006), vol 3 at A8-142. There are circumstances in which an inference of misconduct is permissible unless explained away by the evidence. In a case of this nature, the employee will bear an evidential burden to tender the requisite explanation and, if he declines to do so or it is inadequate, the inference of guilt will stand. At common law this has long been recognised. For example, a till operator can be expected to account for money in his possession and will be guilty of misconduct if he can give no explanation for shortages. The same principle is reflected in the following passage from Mzeku & Others v Volkswagen SA (Pty) Limited & Others: It is common cause that the Appellants refused or failed to perform their duties for a period of over two weeks. Once this is common cause, the Appellants must provide an explanation for their conduct ... Once there is no acceptable explanation for the Appellants conduct then it has to be accepted that the Appellants were guilty of unacceptable conduct .... (Footnotes omitted) Evidence continue credibility JR2125/13 University of Venda v Maluleke and Others (JR2125/13) [2017] ZALCJHB 72; (2017) 38 ILJ 1376 (LC) (28 February 2017) evaluation thereof by arbitrator; arbitrator failing to make any credibility findings of witness testimony; constituting irregularity  issue of credibility of witnesses considered Sasol Mining (Pty) Ltd v Ngqeleni NO and Others 2011) 32 ILJ 723 (LC) at para 7. One of the commissioner's prime functions was to ascertain the truth as to the conflicting versions before him. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party's version. The commissioner manifestly failed to resolve the factual dispute before him on this basis. . n SFW Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) at para 5 Court said the following as to how to assess credibility: the court's finding on the credibility of a particular witness will depend on its 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' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions 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 calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. a witness' reliability will depend, apart from the other factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. Blitz Printers v Commission for Conciliation, Mediation and Arbitration and Others [2015] JOL 33126 (LC) at para 37. . The second respondent, had he discharged his duties properly, was compelled to determine this conflicting evidence and thus decide what evidence to accept, and what to reject. The second respondent had to assess credibility and probabilities and come to a proper and reasoned finding as to what evidence to accept. The second respondent did none of this . In the result, the commissioner's lapse in not performing a full assessment of the complainant's credibility with reference to her almost guileless candour, forthright demeanour, lack of bias, and the consistency of her evidence in relation to the remarks and propositions having been made and their unwelcome nature, as supported by the inherent probabilities evident particularly in the manner in which the complaint came to light, meant that he ignored relevant considerations and failed to apply his mind properly to material evidence and the definitional requirements of sexual harassment in the policy and the code. probabilities JR2125/13 University of Venda v Maluleke and Others (JR2125/13) [2017] ZALCJHB 72; (2017) 38 ILJ 1376 (LC) (28 February 2017) evaluation and determination thereof  no proper assessment of probabilities  approach of arbitrator irregular  proper probabilities considered Sasol Mining Regrettably, the commissioner's logic (or, more accurately, the lack of it) permeates many of the awards that are the subject of review proceedings in this court. Some commissioners appear wholly incapable of dealing with disputes of fact - their awards comprise an often detailed summary of the evidence, followed by an 'analysis' that is little more than a truncated regurgitation of that summary accompanied by a few gratuitous remarks on the evidence, followed by a conclusion that bears no logical or legal relationship to what precedes it. What is missing from these awards (the award under review in these proceedings is one of them) are the essential ingredients of an assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner... witness not on duty JR1701/2017 Genet Mineral Processing (Pty) Ltd v CCMA and Others (JR1701/2017) [2017] ZALCJHB 227 (22 March 2017) he was not persuaded by that evidence because Smuts was not on duty and not in a position to give direct testimony and to testify what transpired at the plant. He could not find on the balance of probabilities that the employee committed the misconduct complained of on those days either.   hearsay JR1355/14 Limpopo Provincial Treasury v General Public Sectoral Bargaining Council and Others (JR1355/14) [2018] ZALCJHB 81 (2 March 2018) Matsokoleng v Shoprite Checkers (Pty) Ltd [2013] 2 BLLR 130 (LAC). "Section 3(1)(c) of the Act confers a discretion on a court (or Tribunal) in terms of admitting hearsay evidence if, in the opinion of the court (or Tribunal), as the case may be, it is in the interests of justice to admit such hearsay evidence.  The fact that the respondent's representative would not have been in a position to cross-examine the author of, or deponent to, the affidavit if it was admitted, was not, in my opinion a legally sound ground to have refused admission of the affidavit, in the light of section 3(1)(c).  That aspect of the matter would only be relevant on the question of the evidential weight to be attached to the affidavit evidence concerned. As the matter stood, it did not appear that the Commissioner properly applied his mind on this issue, if at all.  In my view, the Commissioner's failure in this regard constituted a serious misdirection and gross irregularity, on the Commissioner's part in the conduct of the arbitration proceedings, which rendered the award reviewable and liable to be set aside." Rand Water v Legodi NO and Others (2006) 27 ILJ 1933 (LC). 22]      The arbitrator had to decide whether that hearsay evidence was permissible or not.  In terms of s 3(1) of the Amendment Act, hearsay evidence may be permitted in certain circumstances such as when the relevant witness is not available and it would be in the interest of justice to do so.  Once the decision is made to admit the evidence, then the weight to be given to the particular testimony depends on the probabilities and credibility of the witnesses. No arbitrator or judge should readily admit hearsay evidence when a witness has disappeared. All the facts have to be assessed, in addition to the purpose for which the evidence is to be led.  The arbitrator did not make such an assessment." Commissioner of Oaths JR695/13 Bapela v Public Health and Social Development Sectoral Bargaining Council and Others (JR695/13) [2018] ZALCJHB 89 (2 March 2018) Regulation 7(1) of the Regulations Governing the Administering of an Oath or Affirmation. Published under GN R1258 in GG3619 of 21 July 1972, as amended a Commissioner of Oaths shall not administer an oath or affirmation relating to a matter in which he has an interest. Facebook account: racist remarks JR2219/14 Dagane v SSSBC and Others (JR2219/14) [2018] ZALCJHB 114 (16 March 2018) "...Well commit a genocide on them. I hate whites. 31]The Commissioner carefully considered whether it was hearsay evidence. She found that it was. She then reasonably assessed whether it was nevertheless admissible in terms of section 3(c) of the Law of Evidence Amendment Act, 16 of 1988 which conferred on her a discretion to admit hearsay evidence if it is in her opinion that it was in the interest of justice to admit it. She did this by evaluating the matter in line with the factors set out in section 3(c) of the Law of Evidence Amendment Act. She took into account that the nature of the proceedings was an arbitration which implored her to deal with the substantive merits of the dispute with the minimum of legal formalities. This is in line with section 138(1) of the LRA Dutch Reformed Church Vergesig Johannesburg Congregation and another v Sooknunan t/a Glory Divine World Ministries [2012] 3 All SA 322 ; 2012 (6) SA 201 (GSJ); H v W 2013 (5) BCLR 554 (GSJ) (at paragraphs (10)  (23). if this was the case the applicant would have distanced himself from making the remarks, which he did not do. inference which is the more plausible JA25/2017 Nkomati Joint Venture v Commission for Conciliation, Mediation and Arbitration (JA25/2017) [2018] ZALAC 11; [2018] 8 BLLR 773 (LAC); (2018) 39 ILJ 2484 (LAC) (17 May 2018) In either event, his conduct was dismissible. [10] It is a rule of logic, as was stated in R v Blom 1939 AD 188 at 202-3, that, when reasoning by inference, the inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn. A court is required to select that inference which is the more plausible or natural one from those that present themselves (AA Onderlinge Assuransie Assosiasie Bpk v De Beer 1982 (2) SA 603 (A).) Hearsay JA161/17 Exxaro Coal (Pty) Ltd v Chipana and Others (JA161/17) [2019] ZALAC 52; [2019] 10 BLLR 991 (LAC); (2019) 40 ILJ 2485 (LAC) (27 June 2019) timing of ruling crucial-to be made when evidence first produced- hearsay inadmissible unless admission consented to or it is in the interest of justice-latter involves the exercise of a discretion-invoking the law requires reasonable accuracy...arbitrator or commissioner not to remain passive when hearsay evidence produced by a party. [19]      It is accepted that this section essentially means that if there is no agreement to receive hearsay evidence it is to be excluded unless the interests of justice requires its admission[11]. Hearsay evidence that is not admitted in accordance with the provisions of this section is not evidence at all.[12] This Court[13] held: Section 3(1) of the Act has ushered our approach to the admissibility of hearsay evidence into a refreshing and practical era. We have broken away from the assertion orientated and rigid rule and exception approach of the past. Courts may receive hearsay evidence if the interests of justice require it to be admitted. This section still retains the caution concerning the receiving of hearsay evidence, but changed the rules about when it is to be received and when not.[14] [23]...Third, an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial, nor in argument, still less in the courts judgement, nor on appeal. The prosecution must before closing its case clearly signal its intention to invoke the provisions of the Act, and the trial judge must before the State closes its case rule on admissibility, so that the accused can appreciate the full evidentiary ambit he or she faces. S v Ndhlovu and Others (above) para 18 and S v Molimi [2008] ZACC 2; 2008 (3) SA 608 (CC) paras 38-42. in respect of the timing of the ruling on the admission of hearsay evidence:  The trial court must be asked timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial, nor in argument, still less in the courts judgement, nor on appeal. The prosecution must before closing its case clearly signal its intention to invoke the provisions of the act, and the trial judge must before the state closes its case rule on the admissibility, so that the accused can appreciate the full evidentiary ambit he or she faces. section 3 of the Law of Evidence Amendment Act JA161/17 Exxaro Coal (Pty) Ltd v Chipana and Others (JA161/17) [2019] ZALAC 52; [2019] 10 BLLR 991 (LAC); (2019) 40 ILJ 2485 (LAC) (27 June 2019) 3 Hearsay evidence(1) 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 thereof as evidence at such proceedings;(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or(c) the court, having regard to (i) the nature of the proceedings;(ii) the nature of the evidence;(iii) the purpose for which the evidence is tendered;(iv) the probative value of the evidence;(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;(vi) any prejudice to a party which the admission of such evidence might entail; and(vii) any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of justice.(2) the provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.(3) Hearsay evidence may be provisionally admitted in terms of subsection (1) (b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings: Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (c) of that subsection.(4) For the purposes of this section hearsay evidence means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence; party means the accused or party against whom hearsay evidence is to be adduced, including the prosecution. [21]      The provisions of section 138 of the LRA that give a commissioner a discretion to conduct an arbitration in a manner that she, or he, considers appropriate to determine a dispute fairly and quickly, and to do so with a minimum of legal formalities, does not imply that the commissioner may arbitrarily receive or exclude hearsay evidence, or for that matter any other kind of evidence. In the case of hearsay evidence, even though section 3 of the LEAA, by providing a set of rules or principles for the admission or exclusion of hearsay evidence, assumes some legal formality, it is invaluable. While a commissioner is notionally not obliged to apply it because of the discretion bestowed on him or her by section 138 of the LRA, the prudent commissioner does not err by applying it when dealing with hearsay evidence, rather than conceive of an alternative norm that will ensure not only fairness in the process, but also in the outcome of the arbitration. Applying the common law rules for the reception, or exclusion, of hearsay evidence appears not to be the answer, because those rules have already rightly been jettisoned for their rigidity, inflexibility  and occasional absurdity[16]. Those epithets in are not consonant with fairness and reasonableness. Whether its required to establish trust relationship has broken down JA89/17 Khambule v National Union of Mine Workers and Others (JA89/17) [2019] ZALAC 61; (2019) 40 ILJ 2505 (LAC) (24 July 2019) [13] ...firstly, an employer is not obliged to lead evidence to satisfy a commissioner that the relationship has indeed broken down, the facts should speak for themselves ( see for instance the matter of Impala Platinum Ltd v Jansen and Others [2017] 4 BLLR 325 (LAC) (Jansen)), or if the employer specifically seeks dismissal on the basis of a breakdown in the relationship as was the case in Edcon Limited v Pillemer NO and Others [2010] 1 BLLR 1 (SCA) where the charge against the employee was that her action had destroyed the employer/employee relationship then it must lead evidence to prove the breakdown; secondly, even if evidence is led of a breakdown in the relationship, it is the commissioner who must determine whether dismissal in the circumstances of the matter before him is the appropriate sanction as a number of factors may play a role in coming to this conclusion and the same factors may apply differently to different category of employees. See in this regard the matter of Glencore Holdings (Pty) Ltd and Another v Gagi Joseph Sibeko and Others [2018] 1 BLLR 1 (LAC) (Glencore) where the Court properly accepted that functional relationship between an employee and his superior may play a part in determining whether abominable behaviour displayed by an employee against his superior was an obstacle to the continued employment relationship. Even extreme inappropriate behaviour may in an exceptional case not lead to a dismissal if there is no proximity between the employee and the supervisor who he may have undermined. hearsay J3321/18 National Education Health and Allied Workers Union (NEHAWU) v Minister of Health and Another (J3321/18) [2018] ZALCJHB 320 (2 October 2018) Mgobhozi v Naidoo NO and others (2006) 27 ILJ 786 (LAC) at para 22. Section 3(4) above makes it clear that hearsay evidence includes that given in writing by a person other than the person deposing to the affidavit that includes the evidence in question. The fact that the appellant on oath in an affidavit refers to the medical certificates of other witnesses does not rescue such affidavit from the stigma of hearsay There obviously have to be affidavits from the doctors in question themselves. [10] Hearsay evidence is defined[1] as evidence, the probative value of which depends on the credibility of any person other than the person giving such evidence. [20] ... Only experts can express an opinion on the said issues and there is no expert evidence placed before this Court. [24] To the extent that the Applicants witnesses inform the Court of their own observations, the evidence is admissible. The Court itself must evaluate their evidence, draw its own conclusions from them and apply the law. Insofar as opinion evidence remains, the witness expressing an opinion must be competent to give an opinion about the subject in question and to the extent that the deponent or other witnesses for the Applicant are competent to give an opinion, this Court has to consider it. To the extent that expert evidence is required, this Court cannot attach any weight to the evidence presented by the Applicant that is not expert evidence. meaning JR1242/2016 Taku v Sekhanisa and Others (JR1242/2016) [2019] ZALCJHB 13; [2019] 6 BLLR 588 (LC) (22 January 2019) [53] Hearsay evidence is defined[1] as evidence, whether oral or in writing, the probative value of which depends on the credibility of any person other than the person giving such evidence.[54] In terms of section 3(1) of the Law of Evidence Amendment Act[2] hearsay evidence shall not be admitted as evidence unless the parties agreed to the admission thereof as evidence, or the person upon whose credibility the probative value of such evidence depends, testifies at the proceedings or where the evidence is admitted in the interest of justice, having regard to seven specified factors.   onus of proof JS204/17 Maila v Guards on Call Security CC (JS204/17) [2019] ZALCJHB 66 (2 March 2019) [13]       In Louw v Golden Arrow Bus Service (Pty) Ltd [[1999] ZALC 166 (23 November 1999)] direction is provided on whom the burden of proof lies, where Landman J stated as follows:41.      I believe it is correct that the onus or burden of proof lies on the applicant claiming relief. I use the term onus or its equivalent, burden of proof, in the sense used in Pillay v Krishna 1946 AD 946 at 952 to mean the duty upon the litigant, in order to be successful, of finally satisfying the court that he or she is entitled to succeed on the claim, or defence as the case may be. See too Hoffman and Zeffert: The South 22 African Law of Evidence 4th ed 495.[14]       In the same judgment, in dealing with the shifting of the evidentiary burden, the Court held at para 44 that: The common law, though Hoffman and Zeffert are doubtful whether it is of any great assistance, is instructive. I take the liberty of paraphrasing Davis AJAs summary of the Roman law principle in Pillay v Krishna (supra) at 951-952. If one person claims something from another in a court of law, then he or she has to satisfy the court that he or she is entitled to it. But there is a second principle which must always be read with it. Where the person against whom the claim is made is not content with a mere denial of that claim, but sets up a special defence, then he or she is regarded quo ad that defence as being the claimant and for the defence to be upheld he or she must satisfy the court that he or she is entitled to succeed on it.(Emphasis added).   expert witness JS204/17 Maila v Guards on Call Security CC (JS204/17) [2019] ZALCJHB 66 (2 March 2019) S v Van As 1991 2 SACR 74 (W). [48]       Our courts recognize two types of expert witness testimony. The first is an opinion that is based on text book information and the other is an opinion based on practical knowledge proof authenticity of retrenchment letter JS204/17 Maila v Guards on Call Security CC (JS204/17) [2019] ZALCJHB 66 (2 March 2019) Stellenbosch Farmers' Winery Group Ltd and Another v Martell & Cie SA and Others 2003 (1) SA 11 (SCA). [50]       Mr Masindi, by virtue of the advisory services he rendered to the Respondent and him being the author of the notice upon which the Respondent relies, is better positioned to speak authoritatively on the authenticity of the notices. Further, the evidence of Messrs Morries and Masindi on the one hand and Mr Maila on the other, are mutually destructive.[51]       When a Court is faced with two irreconcilable versions, the best technique to deploy in dealing with a factual dispute was set out in Stellenbosch Farmers' Winery Group Ltd and Another v Martell & Cie SA and Others[10] where the Court described the technique as follows:[5]        To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. [11] evidence to be assessed purely on its probability as opposed to credibility JR1909/12 Dlamini v Tshwane University of Technology and Others (JR1909/12) [2019] ZALCJHB 104 (15 May 2019) Solidarity obo Van Zyl v KPMG Services (Pty) Ltd and Others[(2014) 35 ILJ 1656 (LC)] Fourie AJ determined that it is not necessary for an Arbitrator to find that a witness was not credible to find that his version was not probable.[115] In reaching this conclusion the Acting Judge relied on Transnet Ltd v Gouws and Others[[2016] JOL 35673 (LC)], The key question for him [the Arbitrator] was which version was more probable. He was able to reach a decision on the probabilities without having to have regard to the credibility of each witness. It is quite possible for evidence to be assessed purely on its probability, assuming for the purposes of that assessment that the witnesses who testified were credible. It is not necessary for a judicial officer or arbitrator to find a witness not to be credible in order to find that his evidence is not probable.[117]The learned Acting Judge held: In my view, the failure by the arbitrator to make a pertinent finding on credibility does not demonstrate that he failed to understand the proper approach to the assessment of conflicting evidence. The arbitrator appears clearly to me to have understood that his primary task was to resolve the conflicting versions by having regard to the balance of probability. He applied the correct judicial technique in this regard. Accordingly, his failure to address the credibility of each witness and comment thereon is not a fatal flaw which would entitle Applicant to a review of his award".[118] point in dispute is left unchallenged in cross-examination JR2459/17 Ngululu Bulk Carriers (Pty) Limited v Mokhawane and Others (JR2459/17) [2019] ZALCJHB 178 (12 July 2019) Masilela v Leonard Dingler (Pty) Ltd (2004) 25 ILJ 544 (LC). [28] It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine him upon the facts that he intends to prove in contradiction, to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he should be cross-examined upon the matters that it will be alleged make his evidence unworthy of credit. In Small v Smith 1954 (3) SA 434 (SWA) Claassen J said at 438 It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.' President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC). [61] If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness's testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn and has been adopted and consistently followed by our courts. [36]       The Commissioner, by finding as he did, is saying that not reporting is in order.  Not only is this a contradiction to the Commissioners findings that Employees ought to act in good faith towards their employees, but, in addition thereto, it completely undermines the Employers rules and functioning in relation to the control of its fleet.  This is not a proper analysis. Evidence continue Disciplinary hearing record: hearsay JR281/17 Department of Home Affairs v General Public Services Sectoral and Others (JR281/17) [2019] ZALCJHB 193; (2019) 40 ILJ 2544 (LC) (14 August 2019) Sidumo and Palluci Home Depot (Pty) Ltd v Herskowits 2015 (5) BLLR 484 (LAC). [80] The Commissioner cannot disregard the record of disciplinary proceedings purely because he is hearing the matter for the first time. The record of disciplinary proceeding could also be used to assess whether the dismissal of the employee was effected in accordance with a fair procedure. Most importantly, the commissioner must test the totality of the evidence submitted by the employer against the guidelines on dismissal set out in the LRA Code of Good Practice: Dismissal.[42] [84] The Court concluded that in appropriate factual circumstances hearsay, such as a transcript of a properly run internal hearing, might carry enough weight to require of the accused employee to rebut the allegations contained in the hearsay. According to the Judge, a reasonable decision-maker would have appreciated that the transcripts did not contain mere allegations, but rather tested allegations and a contested denial. As such, the transcripts constituted prima facie evidence of the employees wrongdoing.[49] [85] A number of guidelines for what would constitute appropriate factual circumstances to depart from the norm, as in this case, were set out by the court. In terms of these guidelines, the hearsay should: be contained in a record which is reliable accurate and complete; be tendered on the same factual dispute; be bilateral in nature; be in respect of the allegations; demonstrate internal consistency and some corroboration at the time the hearsay record was created; show that the various allegations were adequately tested in cross-examination; and have been generated in procedurally proper and fair circumstances.[50] [106] As to the absence of the complainant, the Applicants key witness, I am inclined to agree with the Third Respondent that the Applicant is the author of its own fate, having deported its own crucial witness upon which the charges and this review application is premised. resolution of factual disputes JR753/13 Far North Plastics CC v Commission for Conciliation, Mediation and Arbitration and Others (JR753/13) [2019] ZALCJHB 241 (18 September 2019) SFW Group:Ltd & another v Martell et Cie and others 2003 (1) SA 11 (SCA). "On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So, too, on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the courts finding on the credibility of a particular witness will depend on its 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 candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions 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 calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness reliability will depend, apart from the other factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities she had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of the assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be a rare one, occurs when a courts credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail (at paragraph 5 of the judgment). " Assmang Limited (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation Mediation And Arbitration and Others (2015) 36 ILJ 2203 (LC) at para 40. "Ultimately the question is whether the onus on the party, who asserts a state of facts, has been discharged on a balance of probabilities and this depends not on a mechanical quantitative balancing out of the pans of the scale of probabilities but, firstly, on a qualitative assessment of the truth and/or inherent probabilities of the evidence of the witnesses and, secondly, an ascertainment of which of two versions is the more probable." evidentiary burden shifts JR2099/16 Anglogold Ashanti Limited v Association of Mineworkers and Construction Union obo Dlungane and Others (JR2099/16) [2020] ZALCJHB 46 (20 February 2020) [14]...The evidentiary burden shifted to Mr Dlungane to provide a credible explanation as to how the gold bearing material ended up in his hostel room but to no avail. The commissioner immersed himself with unhelpful questions and ultimately misconstrued what constitutes theft...[15]...Clearly, the commissioner confused possession as only referring to having an object in your hand or physically. The test is, however, whether a person has control intentionally exercised toward a thing. In this instance, the gold bearing material was found in Mr Dlunganes hostel room which meant that he had exclusive and intentional control over same. hearsay JR1889/14 South African Airways Technical SOC Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1889/14) [2020] ZALCJHB 58 (3 March 2020) [39] A blanket statement that it is not in the interests of justice to admit hearsay evidence is meaningless and does not add any value to any reasoning. As to how the interests of justice are determined was stated by the Constitutional Court in S v Molimi []as follows; S v Molimi [2008] ZACC 2; 2008 (3) SA 608 (CC) ; 2008 (2) SACR 76 (CC) 2008 (5) BCLR 451 (CC) at para 35 Hearsay JR2554/16 Kelobetswe v Safety and Security Sectoral Bargaining Council and Others (JR2554/16) [2020] ZALCJHB 59 (4 March 2020) Exxaro Coal (Pty) Ltd v Chipana and Others [2019] 10 BLLR 991 (LAC). Exxaro Coal (Pty) Ltd v Chipana and Others[2] when dealing with hearsay evidence and the scope of section 3 of the Law of Evidence Amendment Act[3] (LEAA) set out the following guidelines with regard to the admission of hearsay evidence:22.1 The possibility that hearsay evidence can be admitted in terms of section 3(1)(c) of the LEAA, if this is in the interests of justice, is not a licence for the wholesale admission of hearsay evidence in the proceedings.22.2 In applying section 3(1)(c) the commissioner must be careful to ensure that fairness is not compromised.22.3 A commissioner must be alert to the introduction of hearsay evidence and ought not to remain passive in this regard.22.4 A party must, as early as possible in the proceedings, make known its intention to rely on hearsay evidence so that the other party is able to reasonably appreciate the evidentiary challenge that he/she or it is facing. To ensure compliance, a commissioner should at the outset require parties to indicate such an intention.22.5 The commissioner must explain to the parties the significance of the provisions of section 3 of the LEAA, or of an alternative, fair standard and procedure that will be adopted by the commissioner to consider the admission of the evidence.22.6 The commissioner must timeously rule on the admission of the hearsay evidence and the ruling on admissibility should not be made for the first time at the end of the arbitration, or in the closing argument, or in the award. doctrine of acquiescence JS 740/18 NUMSA obo King and Others v BMW South Africa (Pty) Ltd (JS 740/18; JS 410/17; JS 177/17) [2020] ZALCJHB 115 (11 March 2020) [25] In order to do justice to this question, it is apposite for this Court to discuss the doctrine in as far as its origin and acceptance into our law is concerned. There is a maxim known as qui non negat fatetur silence shows consent. S/he who does not deny agrees. As far as I could establish, the doctrine was first heralded into our law in the matter of Policansky Bros v Hermann and Canard[28],where Wessels J had the following to say: It is a principle of our law that if a person has once acquired a right he is entitled at any time to vindicate that right when infringed, provided the period of prescription has not elapsed. This is the general rule, but in course of time exceptions have been grafted on to this rule. The equitable principle that if a person lies by with full knowledge of his rights and of the infringement of those rights, he is precluded from afterwards asserting them, has been adopted by our courts. It forms a branch of the law of dolus malus. The principle of lying by is not unknown in our civil law, though its application is not so often met with our system of law as it is in English law. Sometimes the rights are lost through mere acquiescence, at other times by estoppel, as where the element of prejudice exists in addition to acquiescence. Thus acquiescence can be proved by definite acts or by conduct. [26] In Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd[29], Friedman AJ had the following to say: Acquiescence is, in my view, a form of tacit consent, and in this regard it must, however, be borne in mind that, as Watermeyer CJ said in Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A) at 422:quiescence is not necessarily acquiescence. And that conduct to constitute an acceptance must be an unequivocal indication to the other party of such acceptance [27] As I understand it, silence does not necessarily mean assent, thus one party cannot without the overt assent of the other impose upon such other a condition to that effect. There was of course a debate whether this equitable doctrine, which bears its origin from English law was fully accepted into our law.[30] De Villiers JP in Hlatshwayo v Mare and Deas[31] had the following to say: Whether then we base the doctrine of acquiescence on the consent which is implied or the choice which is exercised, or call it waiver makes no difference. At bottom the doctrine is based upon the application of the principle that no person can be allowed to take up two positions inconsistent with one another or as it is commonly expressed to blow hot and cold, to approbate and reprobate. This being so there is no doubt of the actual minimum required by our law in order to constitute acquiescence. And that is before a person can be said to have acquiesced in a judgment, and thereby to have lost the right of re-opening a case or of appeal, a right which clearly has or at all events had, the Court must be satisfied upon the evidence that he has done an act which is necessarily inconsistent with his continued intention to have the case re-opened or to appeal. [29] Regard being had to the above, for acquiescence to be proven, I must be satisfied, in this case, that the dismissed employees knew that their consent was required to avoid unilateral change or in order to legalise the change yet they decided to let the respondent go ahead with the apparent illegality - unilateral change without their required consent. There is no evidence to even vaguely suggest that the dismissed employees were aware of the change at the time it was effected. [36] That the defence of acquiescence is not part of our law was confirmed by the SCA, when citing with approval the Turbek decision in Societe des Products Nestle SA v International Foodstuffs[41]. Like pre-emption, for the defence of acquiescence to succeed, it must be shown that a party has acted unequivocally. The Constitutional Court in SARS v CCMA and others[42] said the following: Pre-emption is a waiver of one’s constitutional right to appeal in a way that leaves no shred of reasonable doubt about the losing party’s self-resignation to the unfavourable order that could otherwise be appealed against. Dabner articulates principles that govern pre-emption very well in these terms: The rule with regard to pre-emption is well settled and has been enunciated on several occasions by this court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. And the onus of establishing that position is upon the party alleging it. tacit consent [57] I also take a view that there is no case for tacit consent that was made by the respondent. In order to establish tacit consent, two tests are applied by our Courts. The first of which is known as no other reasonable interpretation test[54]. This simply entails that there must be unequivocal conduct[55] from which no other reasonable inference can be drawn other than an intended consent. The second of which is the most plausible probable conclusion test[56]. This simply implies looking for the most plausible and probable conclusion[57]. The Constitutional Court out of five judgments in Residents of Joe Slovo Community, Western Cape v Thubelisha Homes & others (CHRE Amici Curiae)[58], made it clear that consent meant not simply acquiescence but voluntary agreement. The Court further stated that consent cannot be conferred unless it is asked for and given. In casu, the respondent apparently asked for consent but was not given. Thus consent cannot be conferred. On the facts of this case, an inference of age 60 being consented to is not the plausible and a probable conclusion to arrive at. As pointed out above, the available options were either ages 60 or 65. Thus, the conclusion I arrive at is that no tacit consent to change to age 60 was shown to exist[59]. [32] The Commissioner committed misconduct in respect of his duties as a Commissioner as he failed to reach a logical decision related to the evidence presented before him,. The Commissioner failed to give recognition to Mr Walker's testimony that the polygraph test itself would be used as an investigative tool to assist in determining who the perpetrators were. The Commissioner regarded this as a 'fishing exercise' requiring the Applicant to provide evidence proving a suspicion that Mazibuko and Makubela could possibly be the perpetrators. contractual term to undergo polygraph test JR1335/14 Crossroads Distribution (Pty) Ltd t/a Skynet Worldwide Express v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR1335/14) [2020] ZALCJHB 78 (12 May 2020) [30] The materiality of the term was confirmed in Nyathi v Special Investigating Unit[(2011) 32 ILJ 2991 (LC) at para 39.] , where the Court held that it was a material term of the contract to submit to a polygraph test and that the employee, by refusing to do so had repudiated a material term of the contract entitling the employer to terminate the contract. [48] In OHL Supply Chain (Pty) Ltd v De Beer NO and Others [[2014] 9 BLLR 860 (LAC)] the labour Appeal Court upheld an award in which the Commissioner found the dismissal of employees based on their having "failed' a polygraph test remains an important tool at the workplace to detect deception provided that it is properly administered. A point blank refusal to under one whilst it is part of the disciplinary code and/or conditions of employment is cause for concern. x JR 537/2016 Sebothoma v Commission for Conciliation, Mediation and Arbitration and Others (JR 537/2016) [2020] ZALCJHB 197 (13 May 2020) [59] The LAC confirmed in NUM obo Botsane v Anglo Platinum Mine (Rustenburg Section)[(2014) 35 ILJ 2406 (LAC)] that a generalized allegation is never good enough. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently must be set out clearly. In casu, there was no substantiating testimony, no supporting documents and a complete lack of particularity. distinction must be made between inferences, assumptions or speculations JR 1971/18 Bradley v South African Police Department and Others (JR 1971/18) [2020] ZALCJHB 231 (14 October 2020) [11] To the extent that it was not in dispute that the Arbitrator in this case was confronted with circumstantial evidence, the applicable approach is equally fairly settled. When dealing with circumstantial evidence as in this case, the inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn. However, if the facts permit more than one inference, the most plausible inference must be selected, and the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn [5].[12] Furthermore, a distinction must be made between inferences, assumptions or speculations. Whilst inferences are drawn from existing facts, speculations or assumptions have no factual foundation to them[6]. Equally important is that when dealing with circumstantial evidence, the court is not required to consider every fragment of evidence individually, as it is the cumulative impression, (i.e., all the relevant evidence) that has to be considered[7]. [13] Applying the above principles to the facts of this case, I can state without hesitation that I am satisfied that the Arbitrators approach to the evaluation of the circumstantial evidence was correct. She had, contrary to the submissions made on behalf of the applicant, considered the totality of the evidence and, in that process, weighed the evidence of the applicant against that of the SAPS witnesses, and arrived at a finding that falls within the bounds of reasonableness. (in the absence of a stated case) without parties giving oral evidence JR 454/15 DEPACU obo Mphela and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR 454/15) [2020] ZALCJHB 232 (22 October 2020) [32] A further decision of this Court that I align myself with in my finding is that of Rabkin Naicker J in SASSA v NEHAWU obo Punzi and Others[(2015) 36 ILJ 2345 (LC) at para 5 and 8.] where the principle is aptly set out as follows:[5] I fail to comprehend how a dispute which hinges on the fairness of the conduct of an employer can be decided (in the absence of a stated case) without parties giving oral evidence. A decision made in such a way means that the Labour court must answer all the following questions in the negative. . .[8] In the absence of such a stated case, oral evidence should be led on the material facts in dispute at arbitrations in terms of the LRA. Commissioners and arbitrators should not condone an agreement between parties that no oral evidence be led unless such a stated case has been agreed, and on which they may draw legal conclusions. Although parties may regard submitting documents and argument as a fast way of resolving a dispute on the day of arbitration, it in fact renders the award issued susceptible to review. In the result, the principle of speedy resolution of disputes is ultimately sacrificed. polygraph test JR648/18 Vesela Risk Services (Pty) Ltd v Commission for Conciliation , Mediation and Arbitration and Others (JR648/18) [2021] ZALCJHB 37 (28 January 2021) DHL Supply Chain (Pty) Ltd v De Beer NO & Others (2014) 35 ILJ 2379 (LAC). recorded some general observations about the introduction of polygraph evidence into court or arbitral proceedings and concluded that the respectability of polygraph evidence, at best, remains an open question, and any litigant seeking to invoke it for any legitimate purpose, must, needs be, adduce expert evidence of its conceptual cogency and the accuracy of its application in every given case.[7][14] In the present case, the respondent employees and other colleagues were subjected to a polygraph test following allegation of theft in the premises of one of Vuselas clients. All the employees failed the first polygraph test and were given an opportunity to undertake a second test at their costs in order to prove their innocence. All the employees who took the second test polygraph passed and escaped dismissal. The respondent employees refused to undertake the second polygraph test and were subsequently dismissed solely on the basis of the first polygraph test outcome.[15] Notably, the respondent employees contracts of employment state, inter alia, that if an employee fails polygraph test will be seen as breach of trust and may lead to dismissal after investigation. However, Vusela failed to conduct an investigation as a result of the polygraph test outcome or lead expert evidence on its cogency and reliability. Tritely, polygraph test can serve as corroboration of other evidence but not conclusive as a standalone.[8] In this instance, it is also telling that the cogency and accuracy of the application of the first polygraph tests was tainted by the results of the second tests as all who undertook the second test passed. [16] In my view, the Commissioner reasonably found, on the basis of the dictum in Food & Allied Workers Union on behalf of Kapesi & Others v Premier Foods Ltd t/a Blue Ribbon Salt River,[(2010) 31 ILJ 1654 (LC).] referred to with approval in DHL Supply Chain,[(2014) 35 ILJ 2379 (LAC).] that Vusela should have conducted an investigation to determine the veracity and to corroborate the results of the polygraph test as it was insufficient to repay on those results alone.[11] mere production of such a medical certificate is simply not sufficient when seeking to make out a case for condonation JR 764/18 Kock v CCMA & Others (JR 764/18) [2021] ZALCJHB 101 (31 May 2021) Mgobhozi v Naidoo NO and Others (2006) 27 ILJ 786 (LAC). the Court dealt with an application for condonation where the explanation relied on a psychological condition (certainly comparable to the case in casu). The Court in Mgobhozi held that an affidavit had to be submitted to substantiate the explanation alluded to in the medical certificate,[11] and then concluded that a delay was unexplained in the absence of such an affidavit, reasoning as follows:[12] I cite but one example, namely that the appellant is alleged to have suffered from sane automatism for seven months. Even the most cursory research into the law reports on the topic of sane automatism and its use as a defence in criminal proceedings would reveal that it is a complex condition, requiring the assistance to the court of specialist psychiatrists, with a special interest in the field. For it to continue for seven months seems most incongruous. But that was for the appellant to explain to the Labour Court in acceptable fashion via affidavits from psychiatrists, not for the Labour Court or this court to speculate. failure to contradict and failure to cross-examine JR 1220/2018 Mulaudzi v City of Tshwane Metropolitan Municipality and Others (JR 1220/2018) [2021] ZALCJHB 223 (10 August 2021) [106] In casu the arbitrator in his analysis of the evidence recorded more than once that the Applicant had failed to contradict Mr Macheves version or to put a different version to him, that the Applicants version was not put to the Respondents witnesses and that their evidence was uncontested in material respects. [105] In Masilela v Leonard Dingler (Pty) Ltd[(2004) 25 ILJ 544 (LC) at par 28.] the Court was faced with a scenario where a version was not put to a witness in cross-examination and held that: The problem that I have with the applicant's version where it differs from that of Masina is that none of it was put to Masina while he was testifying. This court has been denied the benefit of Masina's response. It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine him upon the facts that he intends to prove in contradiction, to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he should be cross-examined upon the matters that it will be alleged make his evidence unworthy of credit. In Small v Smith 1954 (3) SA 434 (SWA) Claassen J said at 438:'It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.' [104] A failure to cross-examine a witness on any aspect, is generally considered to be an indication that the party who had the opportunity to cross-examine, did not wish to dispute the version or aspects of the version of the particular witness who was available for cross-examination[President of the RSA v SARFU 2000 (1) SA 1 (CC).]. A cross-examiner is duty bound to put his or her defence or version on each and every aspect he or she wishes to place in issue, to the witness. expert evidence: medical certificates JS567/2018 National Union of Metalworkers of South Africa (NUMSA) and Others v Kaefer Energy Projects (Pty) Limited (JS567/2018) [2021] ZALCJHB 280 (7 September 2021) [45] The admissibility of a medical certificate was considered by the LAC in Mgobhozi v Naidoo NO & Others[(2006) 27 ILJ 786 (LAC)] and the following was said:[23] In order to determine whether the evidence of the doctors' certificates and the opinions they provide therein should be admissible in evidence in the application for review the Labour Court had to take into account the provisions of s 3(1)(c) of the Evidence Act and the factors enumerated therein.[24] The first factor in the said subsection requires the court to consider the nature of the proceedings - in this instance an application for condonation for the late fling of review proceedings. In considering the nature of the evidence the court should bear in mind that it relates to the expert evidence of two doctors relating to the condition of the appellant. Generally speaking opinion evidence cannot be given by laymen and is the preserve of persons specifically qualified and trained in a particular field - often described as experts.[25] In fields as esoteric as the workings of the mind and the effects on daily life - more especially the ability to instruct attorneys or bring proceedings on one's own - the courts are reliant upon the views of the medical profession. In this context psychologists and psychiatrists usually provide the evidential material necessary for the court to decide the issue. For the appellant to convince the Labour Court that he was mentally and/or physically incapable to bringing proceedings in that forum he had to have the evidence of such professionals.[26] The Evidence Act requires the court to consider the reason why the medical evidence was not provided in the form of affidavits. No reasons are given why no affidavits have been provided. It is not suggested that the doctors have passed away, have emigrated or are unavailable for some other cogent reason.[27] The absence of any such explanation is viewed in a most serious light. The cynic might observe that medical certificates are available for anyone paying the appropriate fee. If perceptions of the abuse of medical certificates are widespread - as I believe they are-it strengthens the need for courts to be especially vigilant against their misuse. One inference to be drawn in this application is that the medical practitioners were not prepared to go on oath to defend their certificates. Another is that they were not prepared to spare the time to explain their very truncated and laconic comments.[28] The absence of affidavits from the doctors means that the court is deprived of any elaboration of the widely and vaguely stated symptoms attributed to the appellant. The nature of the medication and the efficacy thereof are also not explained.[29] The Evidence Act speaks of prejudice to the third respondent. The latter has had no opportunity of having the appellant examined by its own practitioners and has had to rely on the vague allegations in the certificates. I cite but one example, namely that the appellant is alleged to have suffered from sane automatism for seven months. Even the most cursory research into the law reports on the topic of sane automatism and its use as a defence in criminal proceedings would reveal that it is a complex condition, requiring the assistance to the court of specialist psychiatrists, with a special interest in the field. For it to continue for seven months seems most incongruous. But that was for the appellant to explain to the Labour Court in acceptable fashion via affidavits from psychiatrists, not for the Labour Court or this court to speculate.[30] Although the Labour Court did not decide the issue of admissibility and merely determined the application on an acceptance of the certificates at face value, I believe it ought to have done so. I do not believe that it ought to have exercised its discretion to consider the certificates at all, in the absence of affidavits by the medical practitioners in question. For that reason alone the appeal must fail.[31] The court is also enjoined by the Evidence Act to consider the probative value of the hearsay evidence. At some levels the second enquiry posited above: namely whether the appellant showed that he was so incapacitated by his ailments that he could not bring the review proceedings timeously, falls to be considered under this factor. [49] The LAC made it clear in Mgobhozi[] that when considering the nature of the proceedings per section 3(1)(c) of the Evidence Act, which in this instance is an unfair dismissal action, this Court should be alive to the fact that the medical certificates pertains to the expert evidence of the doctors who expressed a medical opinion on the applicant employees illnesses. Since they constitutes opinion evidence, it cannot be given by laymen, but by the respective doctors who issued the medical certificates.[50] When it comes to the consideration of the probative value of the hearsay evidence, it is clear that in the absence of the affidavits from the respective doctors who issued the medical certificates, this Court is asked to speculate on whether the 42 of applicant employees were in fact indisposed and the extent of their incapacity due to their ailments that necessitated that all of them be booked off sick for about a week or more.[18] Also, the interest of justice dictates that an explanation from the doctors be proffered because the conduct of the applicant employees was not only suspect, but resulted in an operational crisis, reputational damage and costs to Kaefer. Evidence continue polygraph tests JR1124/19 GIWUSA obo Malemone and Others v Mashaba NO and Others (JR1124/19) [2021] ZALCJHB 356 (13 October 2021) [9]   Professor Tredoux pointed further that the Professional Board of Psychology recognised polygraph testing as unreliable and in violation of Health Professions Act and Employment Equity Act. Though it is a psychological test in nature but it is not classified by the Health Professions Council of South Africa in terms of Government Gazette notice 155 of 2017. He conceded that the polygraph test is not recognised as an acceptable form of psychological test. Portions of his report were read through the record. [20]   In following the Irvin & Johnson approach the first respondent was indeed tasked with a duty to determine an issue that he had no competency to pronounce upon. A regulatory position adopted by the Health Professions Council of South Africa cannot be quietly decided upon at the CCMA without involving the Council. The Council does have interest in the matter and ought to have either been joined or to have its decree challenged in a separate litigation. In the circumstances, the first respondents omission to deal with the evidence of expert witness does not render his award reviewable. claim ito Section 77 (3): what an employee must primarily allege and prove [23]   Section 77 (3) of the BCEA provides that the Labour Court has concurrent jurisdiction with the civil Courts to hear and determine any matter concerning a contract of employment. From this section, it is clear that what the Labour Court must determine is a matter concerning an employment contract. In other words, an employee must primarily allege and prove the existence of an employment contract as well as the terms upon which the contractual claim is predicated. In this claim, Kekana seeks a repayment of the reduced salary; payment of the car and cellphone allowances. In order to succeed; Kekana had to show that in terms of the employment contract, he is entitled to a particular salary; a car and cellphone allowances. In Court, Kekana produced his written contract of employment. The contract has no terms that suggest a particular salary or the allowances he is claiming. [25]   With regard to the car allowance, this was more a benefit as opposed to a contractual term. There is undisputed evidence that the board resolved to withdraw this benefit. Kekana was consulted to provide information in order to retain the benefit. He became renitence. As a result, the withdrawal of the benefit was implemented. It may well be so that Kekana would have been able to demonstrate that the withdrawal of the benefit amounted to an unfair labour practice. However, this Court lacks jurisdiction over disputes involving an unfair labour practice. Breach of section 34 of the BCEA JS468/19 Kekana v Railway Safety Regulator (JS468/19) [2021] ZALCJHB 395 (13 October 2021) [30]   It is clear from the provisions of section 34 (1) (a) that an agreement is contemplated, that agreement must be in respect of the debt and must be in writing. Although the SOP was mentioned in evidence, it was never alleged and proven that the SOP constitutes the written agreement referred to in the section. By definition, an agreement in law is a manifestation of mutual assent by two or more persons to one another. It is a meeting of minds in common intention, and it is made through offer and acceptance. It may be so that the SOP constituted a pactum de contrahendo (a promise to contract). Corbett JA pointed out that a promise to contract is not a contract[[30]   It is clear from the provisions of section 34 (1) (a) that an agreement is contemplated, that agreement must be in respect of the debt and must be in writing. Although the SOP was mentioned in evidence, it was never alleged and proven that the SOP constitutes the written agreement referred to in the section. By definition, an agreement in law is a manifestation of mutual assent by two or more persons to one another. It is a meeting of minds in common intention, and it is made through offer and acceptance. It may be so that the SOP constituted a pactum de contrahendo (a promise to contract). Corbett JA pointed out that a promise to contract is not a contract[5]. In other words, the Regulator could have approached Kekana and indicated to him that he has in terms of the SOP agreed to agree to a deduction of a debt.]. In other words, the Regulator could have approached Kekana and indicated to him that he has in terms of the SOP agreed to agree to a deduction of a debt.   relying on constitutionality issue J1309/21 Futshane v Millard NO and Others (J1309/21) [2021] ZALCJHB 432 (3 November 2021) [16] ... In addition, that the principle of subsidiarity prohibits parties from claiming direct reliance on the Bill of Rights when the right in question has been given effect to through specific legislation.[Solidarity v South African Police Service & Others [2019] 2 BLLR 187 (LC) at para 18.] In that instance, that right is to be protected by way of direct reliance on the specific subsidiary legislation, unless a party claims that legislation does not adequately protect the underlying fundamental right, which is not alleged in casu. I agree. The applicant is prohibited from placing direct reliance on the fundamental right of fair labour practice in the Constitution.   credibility of the witnesses J1136/16 Sisonke Partnership t/a DSV Health Care (formerly UTI Pharma) v GIWUSA obo Zwane and Others (J1136/16) [2021] ZALCJHB 459 (8 December 2021) [87]   The approach to be adopted by arbitrators when faced with two disputing versions was set out in Sasol Mining (Pty) Ltd v Ngeleni NO and Others[(2011) 32 ILJ 723 (LC) at 727C-F.](Sasol Mining), where it was held that the arbitrator must conduct an. . . assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner. As Cele AJ (as he then was) observed in Lukhnaji Municipality v Nonxuba NO & others [2007] 2 BLLR 130 (LC), while the LRA requires a commissioner to conduct an arbitration hearing in a manner that the commissioner deems appropriate in order to determine the dispute fairly and quickly, this does not exempt the commissioner from properly resolving disputes of fact when they arise.[88]   The arbitrator, faced with two conflicting versions, had to follow the approach as set out by this Court and she had to conduct an assessment of the credibility of the factual witnesses, their reliability and overall assessment of the inherent probabilities of the irreconcilable versions before her.[89]   In Sasol Mining the Court held that it was one of the prime functions of a commissioner to ascertain the truth as to the conflicting versions before him. The Court held that: What he manifestly lacked was any sense of how to accomplish this task, or which tools were at his disposal to do so. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party’s version. The commissioner manifestly failed to resolve the factual dispute before him on that basis. Instead, he summarily rejected the evidence of each of the applicants witnesses on grounds that defy comprehension.   failure to cross-examine JA17/2021 Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (JA17/2021) [2022] ZALAC 2; [2022] 4 BLLR 324 (LAC) (27 January 2022) [25]...President of the Republic of South Africa and Others v South African Rugby Football Union and Others:[12]The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn[13]and has been adopted and consistently followed by our courts.[14] [26]  The third respondent failed to make it clear to the complainant in cross-examination the precise nature of the imputation raised, in the sense not only that her evidence was to be challenged but how this was to be done. It was not put to her that her version was false or that it was denied by the third respondent. The result was that she was not given the opportunity to respond to such a challenge, including to deny any suggestion as to the falsity of her version.[15] [28]  While the third respondent on appeal took issue with the discrepancies in the complainants account on the basis that she had recorded in her statement that on 23 June 2015 the third respondent had said that I look like I taste nice in bed but at arbitration testified that he had said that I look nice in bed, or it is nice in bed, these discrepancies were not of such a nature as to warrant the wholesale rejection of her evidence. This was all the more so when her evidence clearly showed was that unwarranted remarks of a sexual nature had been made to her by the third respondent. It followed that on a conspectus of the material before the arbitrator, the finding that the third respondent had committed the misconduct alleged was supported by the evidence and the arbitrators finding to this effect fell within the ambit of reasonableness required. In finding differently the Labour Court erred. the Commissioner was therefore confronted with was mutually destructive versions JR 1103/18 Barnes Fencing Industries (Pty) Ltd v Justice Santjie Mthombeni N.O and Others (JR 1103/18) [2022] ZALCJHB 13 (4 February 2022) [22]     The approach when confronted with mutually destructive factual versions has long been set out in Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others[2003 (1) SA 11 (SCA)]. It required of the commissioner to make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others[2003 (1) SA 11 (SCA)]. On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So too on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its 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's candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness's reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail." pre-trial minute it is agreed that documents would serve as evidence of what they purport to be without admitting that the contents thereof JS 751 / 18 Smyth v Anglorand Securities Ltd (JS 751 / 18) [2022] ZALCJHB 72 (28 March 2022) [124]    In any event, the disciplinary hearing transcripts were never admitted as uncontested evidence. In terms of paragraph 8.1 of the pre-trial minute it is agreed that documents would serve as evidence of what they purport to be without admitting that the contents thereof are correct. As a result, it was never agreed that the content of the transcript of the disciplinary hearing would serve as undisputed evidence of the misconduct with which the applicant has been charged. It was thus necessary for the respondent to at least substantiate the misconduct charges by way of testimony by a witness or witnesses. As said in Baxter supra:[]Although the findings of the disciplinary enquiry and the witness statements form part of the discovered documents, it was agreed in the pretrial minute that, while the documents were what they purported to be, the truth of their contents was not admitted and if the respondents wished to rely on such evidence the relevant witnesses would need to testify.   argumentative and condescending in his testimony and avoided answering question JS 751 / 18 Smyth v Anglorand Securities Ltd (JS 751 / 18) [2022] ZALCJHB 72 (28 March 2022) [125]    And finally in this regard, insofar as the testimony of the applicant concerning the misconduct charges is contradicted by any of the testimony presented by Carter, I have little hesitation in preferring the evidence of the applicant. Although Carter initially impressed me as a witness when he testified, my view in this regard swiftly dissipated as his testimony continued, and especially when he was cross-examined. Carter was extremely argumentative and condescending in his testimony and avoided answering questions that he dd not like the answers to. He often clearly anticipated what the applicants counsel was heading towards when being cross-examined, and he adapted his answers accordingly. He was unwilling to make obvious concessions. In Ehlers v Bohler Uddeholm Africa (Pty) Ltd[(2010) 31 ILJ 2383 (LC) at para 27.] the Court held that a witness that was argumentative and constantly asked for questions to be repeated was not credible. In Ngozo and Others v Scorpion Legal Protection[(2008) 29 ILJ 1039 (LC) at para 48.] the Court equally had regard to a witness being argumentative, but then also considered the fact that the witness would pose questions back at the respondent's counsel and was evasive in answering a number of critical questions, in rejecting the testimony of the witness. In Hlongwane v Cisco Systems SA and Another[(2011) 32 ILJ 625 (LC) at paras 43  44.] the Court held as follows in rejecting the entire evidence of the applicant in that case, which in my view is mostly quite descriptive of the testimony of Carter in casu: The applicant was, with due respect to him, a profoundly poor witness to say the least. It would appear he came into the witness stand having considered and strategized as to what his testimony was going to be irrespective of what questions would be put to him. His strategy seems to have been that the truth was only that which favoured his case and that he would not change his stand irrespective of questions or versions put to him. His strategic approach was to deal with difficult questions or those whose underlying purpose was to seek to undermine his case by bringing in some points unrelated to the questions. He was indeed a man loyal to his strategy but at times seems to have failed to understand the difference between strategy and tactics. He is a man not to be trusted with the truth and thus anything in his version that purports to be the truth has to be evaluated against all probabilities before it can be accepted as such. As I listened and observed his mannerisms in the witness stand, I wondered whether he seriously believed in his own story. He frequently laughed when questioned during cross-examination, something he did not do much of, if at all, during evidence-in-chief or re-examination. It was also apparent during cross-examination that the applicant evaluated every question put to him with a view to determining the underlying purpose before he could answer.   that there was no evidence directly linking the dismissed employees to the theft of money as outlined above. JR1206/18 Kit Kat Group (Pty) Ltd v The CCMA and Others (JR1206/18) [2022] ZALCJHB 113 (4 May 2022) [8] In justifying the dismissal, Kit led evidence in relation to only two transactions outlined above involving the dismissed employees. There was overwhelming and undisputed testimony that Kit lost money through the scheme as outlined above. There was also uncontested evidence that the dismissed employees operated the till numbers as outlined above. There was also clear evidence that they executed the transactions in question. The money lost equates the transactions executed by the dismissed employees. The only basis upon which Harmse found that the dismissal was substantively unfair is that there was no evidence directly linking the dismissed employees to the theft of money as outlined above. Harmse asked the question as to how the customer slips were placed in the different tills and how the money was removed from the tills. She concluded that there was no evidence to answer those questions. These are questions to be asked by a criminal Court, because, the standard of proof is that of beyond reasonable doubt.   video footage JR541/18 Chrome Traders (Pty) Ltd v Commissioner Verhoef N.O. and Others (JR541/18) [2022] ZALCJHB 118 (12 May 2022) [17] The term exhibit is employed mainly in proceedings. Arbitrations take a form of civil proceedings. In civil proceedings, an exhibit is documentary evidence, in a form of video recording, which forms part of the testimony to be reviewed by the decision maker. Merriam Websters Dictionary defines exhibit to mean a document or material object produced and identified in court or before an examiner for use as evidence. It must follow that when Verhoef labelled the CDs as exhibits, as a trained commissioner knew or ought to have known that anything taken as an exhibit is taken for evidentiary purposes. Verhoef did not take time to explain to any of the parties, in particular Chrome, the legal import of labelling the CDs as exhibits. He was duty bound to explain that to the parties as lay litigants.[18] Despite having recorded the CDs as evidence serving before him, he prevented Chrome from leading further evidence in support of that piece of evidence simply because the witness to be led on the contents of the footage was not the one who extracted the footage. That was inappropriate. The issue before him around the footage was not that there was phony footage but whether the images to be viewed therein will show an image that fits Mkondos person. He should have allowed the viewing of the images and await the testimony to be presented by Mr De Kock (Kock) on the identification of the images contained therein. If Kock had encountered Mkondo as a person before the incident, it probably would not have been difficult for him to state that the image of a person shown on the footage is that of Mkondo. Mkondo would have been in a position to challenge that testimony in any manner whatsoever. [19] Generally, video evidence is considered real evidence. It is evidence that a decision maker may examine by himself or herself. Video footages are also governed by the provisions of Electronic Communications and Transactions Act[No. 25 of 2002, as amended.] (ECTA). When it comes to its admissibility, the provisions of section 15 must be taken into account. The section reads thus:15(1) in any legal proceedings[3], the rules of evidence must not be applied so as to deny the admissibility of a data message, in evidence (a) On mere grounds that it is constituted by data message; or(b) If it is, the best evidence that the person adducing it could reasonably be expected to obtain, on the ground that it is not in its original form.(2)     Information in the form of a data message must be given due evidential weight.(3)     In assessing the evidential weight of a data message, regard must be had to (a)     The reliability of the manner in which the data message was generated, stored or communicated;(b)     The reliability of the manner in which the integrity of the data message was maintained;(c)     The manner in which its originator was identified;(d)     Any other relevant factor. [21] In the final analysis, this Court agrees with a contention that Verhoef ought to have viewed the footage to enable him to assess its evidentiary weight. Having failed to do so, Verhoef committed an irregularity that vitiates his arbitration award. On this basis alone, the arbitration award issued by Verhoef does not pass the constitutional muster of reasonableness. status of the documents to be included in the trial bundle JR 269/2020 Mashigo v Safety and Security Sectoral Bargaining Council and Others (JR 269/2020) [2022] ZALCJHB 141 (1 June 2022) [26]       In Hillside Aluminium (Pty) Ltd v Mathuse and others[(2016) 37 ILJ 2082 (LC) at paras 56  62.] (Hillside), this Court considered the status of evidence and held that:[56]  In litigation parties would prepare bundles of documents and the documents included in the trial bundles, would be included as documentary evidence which the parties intend to rely on in support of their respective cases. It is a common practice for parties to agree on the status of the documents to be included in the trial bundle.[57]   In my view there are three possible scenarios.[58]   The first scenario is where there is no agreement on the authenticity or status of documents or where the authenticity is disputed. In such instances the party wishing to produce a document and wants to rely on the document as evidence, has to prove the authenticity of the document by leading evidence and if the authenticity is not proved or admitted, the document is inadmissible, may not be used in cross-examination and cannot be considered as evidence.[59]   The second scenario is where parties agree that documents are what they purport to be. This means that the party wishing to rely on the document, does not have to prove the authenticity of the document but may lead evidence and rely on the document on the basis that it is what it purports to be. In this instance documents must be introduced as evidence and cross-examination on such documents is permissible. The presiding officer can accept the document as evidence insofar as it was properly introduced by witnesses. Where a document is agreed to be what it purports to be, but no evidence is adduced on the document, the presiding officer cannot mero motu consider such document as evidence merely because it is included in a trial bundle.[60]   The third scenario is where the parties agree that the documents in the bundle should be regarded as evidence. In this instance the presiding officer is entitled to accept the contents of the documentary evidence as if it were evidence adduced before him or her and even if no witness testifies about it, it can be considered as relevant and admissible evidence.[61]   Where the document is a transcript or record of another proceeding, the same principles apply. Where the parties agreed that the transcript is what it purports to be and a true reflection of what purports to be recorded, it means that the record is authentic and correctly reflects that the proceedings indeed took place. In this scenario contradictions in testimony could be canvassed during cross-examination. The presiding officer is entitled to consider the portions of the transcribed record that were introduced by witnesses, either in evidence in chief or cross-examination, as evidence. The presiding officer cannot merely accept the entire record as evidence, but can accept as evidence those portions introduced by witnesses.[62]   Where the parties agreed that the entire transcript should be regarded as evidence before the presiding officer, the entire record could be considered and accepted as if it was evidence that was adduced before the tribunal where it was introduced, without the need for evidence to be adduced on it. In this scenario the evidence given at the disciplinary hearing is regarded as evidence at the arbitration. This is an extraordinary scenario and requires an explicit and clear agreement between the parties.[27]       In casu, the parties specifically agreed that the record of the disciplinary hearing and previous arbitration proceedings must be admitted as evidence of the arbitration and that no witnesses will be called. This agreement is in accordance with the third scenario, as set out in Hillside. The effect of the agreement is that the entire record, which included the transcript of the evidence previously adduced by the Applicant and the Respondents witnesses, could be considered and accepted as if it was evidence adduced before the arbitrator. Evidence continue polygraph test JR823/20 Endeto Engineering (Pty) Ltd v Metal & Engineering Industries Bargaining Council and Others (JR823/20) [2023] ZALCJHB 26 (20 February 2023) [55] As set out above, the result of Mr Lovett’s polygraph test was that no deception was detected. The Applicant’s recorded that Mr Lovett “was found to be truthful” is a step too far, particularly in the absence of expert evidence in this regard. "[56] In DHL Supply Chain (Pty) Ltd v De Beer N.O and Others, the LAC held as follows concerning the import of polygraph testing: ‘[29] An example of a polygraph being used in a misconduct case is Truworths Ltd v CCMA (2009) 30 ILJ 677 (LC). In a review, the award was set aside for a myriad of irregularities, including a failure to have regard to all the evidence, amongst which was evidence of polygraph tests. (at para 38) Further, in that judgment, relying on the observations of Grogan A in Sosibo & others v Ceramic Tile Market (2001) 22 ILJ 677 (CCMA), it was held at para 37 that a polygraph is useless on its own but may be ‘taken into account’ together with ‘other supporting evidence’. The dictum goes on to say that a polygraph can serve as corroboration of other evidence." [30] These considerations beg the question about what a failed polygraph test really produces by way of usable information. Only 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. In this appeal, DHL’s consent form, signed by the two respondents, states that the test would indicate that the worker was either involved or not involved in the stock loss. That premise is questionable, and to belabour the point, required the kind of expert evidence mentioned above to render it worthy of consideration. [31] In summary, the respectability of polygraph evidence, at best, remains an open question, and any litigant seeking to invoke it for any legitimate purpose, must, needs be, adduce expert evidence of its conceptual cogency and the accuracy of its application in every given case.’ double jeopardy defence JR 1211 / 2018 SAMWU obo A N Malatsi v South African Local Government Bargaining Council and Others (JR 1211 / 2018) [2023] ZALCJHB 56; (2023) 44 ILJ 1317 (LC) (13 March 2023) [31] The defence of double jeopardy derives from criminal law and provides that an accused person cannot be tried twice for the same offence. In an employment context, the defence is to the effect that once an employer has imposed a sanction or a disciplinary penalty, the matter may not be re-opened to allow the employer the opportunity to revise the penalty, and in particular, to impose a more severe penalty.[A van Niekerk, M Christianson et al, ‘Law@work’, (LexisNexis South Africa), 5th ed, at pp 315 – 316.] "[32] However, as will be illustrated infra, the courts have not adopted the double jeopardy defence in an employment context without qualification or reservation. Instead, the courts adopted an approach to the effect that if an employee has already been disciplined for an offence, it does not (automatically) mean that the employer is precluded from holding another disciplinary enquiry and imposing a more severe sanction or dismissing the employee for the same offence. The ultimate determining factor is fairness and a second hearing will be permissible if the circumstances justify it. " "[33] In BMW (SA) (Pty) Ltd v Van der Walt[(2000) 21 ILJ 113 (LAC). ] (Van der Walt), the majority of the LAC found that the question of whether a second disciplinary hearing may be held against an employee would depend on all the circumstances and whether it was, in all the circumstances, fair to do so. It was found not unfair to hold a second disciplinary enquiry where the full extent of the misconduct was not known to the employer at the time of the first disciplinary enquiry. The LAC held that: ‘… it is unnecessary to ask oneself whether the principles of autrefois acquit or res iudicata ought to be imported into labour law. They are public policy rules. The advantage of finality in criminal and civil proceedings is thought to outweigh the harm which may in individual cases be caused by the application of the rule. In labour law fairness and fairness alone is the yardstick.’[6]" [35] In Branford v Metrorail Services (Durban) and others[(2003) 24 ILJ 2269 (LAC).] (Metrorail), the LAC was again faced with a case where an employee was issued with a written warning, but subsequently, the employer became aware of the fact that the misconduct for which the employee was given a written warning, was more serious and the employee was charged again and dismissed. The arbitrator found the employee’s dismissal unfair as he held the view that the warning issued to the employee was binding on the employer and that it was not permissible for the employer to later charge him in respect of the same conduct. "[36] The LAC clarified the test as set out in Van der Walt and made it clear that it was incorrect to contend that the test is that a second enquiry is only permissible in exceptional circumstances. It was confirmed that the test was one where fairness alone was the decisive factor in determining whether or not a second enquiry is justified. It was held that: ‘The concept of fairness, in this regard, applies to both the employer and the employee. It involves the balancing of competing and sometimes conflicting interests of the employer, on the one hand, and the employee on the other. The weight to be attached to those respective interests depends largely on the overall circumstances of each case.’[8]" [41] It is evident from the authorities that an employer can institute disciplinary action a second time for conduct that arose from the same set of facts and that fairness will determine whether the employer is justified in instituting disciplinary action a second time. "[53] Furthermore, the charges in the first disciplinary hearing, centred on the several attempts to access the Municipality’s bank account, without authority to do so. The charges in the second disciplinary hearing centred on the sharing of a password and the failure to comply with the Respondent’s IT policy, which resulted in Mr Malatsi’s computer being used to do fraudulent activities and which exposed the Municipality to a serious risk. [54] The misconduct charges in the first and second disciplinary hearings were distinct from each other, a clear reason why the principle of double jeopardy finds no application." "[63] It is trite and has been accepted by this Court that an employer has the right to discipline its employees, of course in a lawful and fair manner. In fact, the disciplining of employees is the duty and the prerogative of the employer and an employer remains dominis litis in deciding whether an employee is to be charged for misconduct and if so, what the nature of the charges would be. " care is to be taken not to find against a person merely as punishment for untruthful evidence JA101/2021 South African Revenue Service v National Education, Health And Allied Workers Union obo Kulati and Another (JA101/2021) [2023] ZALAC 11 (21 June 2023) [25] It is useful to return to the legal maxims which form some of the foundations of our law. Pertinent to this case is the fact that the maxim semel mentitus, semper mentitur (once untruthful, always untruthful) and falsum in uno, falsum in omnibus (false in one thing, false in all) do not apply in our law of evidence.[7] Untruthful evidence or a false statement does not always justify the most extreme conclusion and the weight to be attached to such evidence must be considered having regard to the circumstances of each case,[8] which include the nature, extent, materiality and impact of the false testimony and the possible reasons why such testimony was given. In addition, care is to be taken not to find against a person merely as punishment for untruthful evidence.[9] Where a witness is shown to have deliberately lied on one point, it does not follow that a conclusion must be drawn that their evidence on another point cannot safely be relied upon.[10] "[7] Rex v Gumede 1949 (3) SA 749 (A). [8] S v Mtsweni 1985 (1) SA 590 (A). [9] S v Burger and Others 2010 (2) SACR 1 (SCA) at para 30. [10] S v Oosthuizen 1982 (3) SA 571 (T)." authors of discovered documents are called as witnesses DA27/22 State Information Technology Agency SOC Limited v Commission for Conciliation Mediation and Arbitration and Others (DA27/22) [2024] ZALAC 19 (26 March 2024) [38] The Supreme Court of Appeal in Rautini v PRASA [2021] ZASCA 158 (8 November 2021)., interpreting a similar agreement, held that the phrase does not equate to admission of the contents of documents and parties are thus not exempt from proving the originality and authenticity of discovered documents to ensure their admissibility as evidence and to ensure that the authors of discovered documents are called as witnesses. As mentioned, the record shows that the admissibility of those documents was pertinently challenged by Mr de Freitas. credibility finding / challenging authenticity of signatures JA 32/23 Workforce Staffing (Pty) Ltd v Mjoli and Another (JA 32/23) [2024] ZALAC 9; [2024] 7 BLLR 734 (LAC); (2024) 45 ILJ 1627 (LAC) (11 April 2024) "[25] Although an appeal Court will ordinarily be reluctant to disturb credibility findings made by a trial court, this is not an immutable rule. In Allie v Foodworld Stores Distribution Centre (Pty) Ltd and others[2004 (2) SA 433 (SCA); [2004] 1 All SA 369 (SCA) at para 38.] the SCA (per Navsa JA) said the following: ‘Of course, the judicial officer, who has sight of the witnesses and is able to assess the evidence from nearby, is the best person to gauge their demeanour. The record of such evidence, however, speaks for itself. If the witness is mendacious, contradictory or evasive, this will appear from the record. And if the judicial officer has justified criticism of a witness or of his or her evidence, the justification for such criticism will normally also appear from the record. Even more so will this be the case when a credibility finding is made against a particular witness. Although a Court of appeal is reluctant to interfere with credibility findings made by the court of first instance, it is not obliged to accept such findings if they should not appear to be justified.’" "[24] In undertaking its credibility analysis, the Court lost sight of the necessity of considering the underlying probabilities. In National Employers’ General Insurance Co Ltd v Jagers[1984 (4) SA 437 (E); [1984] 4 All SA 622 (E) at 440D-441A.], Eksteen AJP observed: ‘It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance or probabilities favours the plaintiff, then the Court will accept his version as being probably true. If, however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant’s, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false. It does not seem to me to be desirable for a Court first to consider the question of the credibility of the witnesses as the trial Judge did in the present case, and then, having concluded that enquiry, to consider the probabilities of the case, as though the two aspects constitute separate fields of enquiry. In fact, as I have pointed out, it is only where a consideration of the probabilities fails to indicate where the truth probably lies, that recourse is hard to an estimate of relative credibility apart from the probabilities.’" [37] What the Court ignored in its assessment of the probabilities of the competing versions before it includes the fact that there were five signature samples that served before the Court, none of which were interrogated. The evidence by both Moalusi and Panman, during cross-examination, was that the signatures looked “the same”. These observations were not seriously challenged by the employees’ representative. The Court was required in the circumstances to have engaged in a comparison of the signatures of the employees on the documents that were before the Court. The Court’s failure to do so was a misdirection, and its conclusion that the separation agreements were fabricated was flawed. [41] The employees’ attack on the separation agreements was limited to a denial of their signatures on the respective documents. They did not dispute that the terms of the agreements record the fact of a mutually agreed termination of employment on the stipulated terms, or raise any other basis for calling the content of the document into question. The agreements unequivocally provide for a mutually agreed termination of employment. That being so, there was no dismissal for the purposes of section 186 (1) of the LRA. hearsay at CCMA / Polygraph tests inadmissible evidence JA46/23 Numsa obo Mokase v Nissan South Africa Ltd and Others (JA46/23) [2024] ZALAC 16 (23 April 2024) [14]...A commissioner is entitled in terms of section 138(1) of the Labour Relations Act[5] (LRA) to determine the manner in which an arbitration is to be conducted so as to determine the dispute fairly and quickly, with the minimum of legal formalities; and, in terms of section 138(2), to exercise a discretion as to the form of the proceedings during which evidence may be adduced. [15] The general rule is that hearsay not admitted in accordance with the provisions of the LEAA is not evidence at all.[Ndhlovu and others v S [2002] ZASCA 70; [2002] 3 AII SA 760 (SCA) (Ndhlovu) at para 14.] While notionally a commissioner is not obliged to apply section 3 of the LEAA because of the discretion bestowed by section 138 of the LRA, this Court has recognised that it is prudent that section 3 be applied to ensure both a fair process and outcome at arbitration.[Exxaro Coal (Pty) Ltd and another v Chipana and others (2019) 40 ILJ 2485 (LAC) at paras 19 and 21.] This is so in that where it is not, it may lead to a decision which a reasonable decision-maker could not reach. [17] The importance of a timeous ruling on the admissibility of the hearsay evidence is that it provides parties with the opportunity to make submissions on the issue and, if informed that such evidence is to be excluded, to consider whether it is possible to rely on other evidence or not. Given the nature of the evidence and the reliance placed on it in the proceedings before the commissioner, the failure to determine the issue and the decision later simply to exclude such evidence, without having regard to the provisions of section 3 or make a timeous ruling on its admissibility, constituted a material misdirection on the part of the commissioner and led to a gross irregularity in the conduct of the proceedings.[8] "[19]...In the approach to and treatment of the evidence adduced, the commissioner was required to take cognisance of the fact that circumstantial evidence had been advanced in respect of which: ‘…two cardinal rules of logic … cannot be ignored: (1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn. (2) The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.’[R v Blom 1939 AD 188 at 202 - 3.]" [25] It follows that, although for different reasons, the Labour Court did not err in upholding the review application and setting aside the arbitration award. In its reasoning, the Labour Court erred in disregarding the decision of this Court in DHL Supply Chain (Pty) Ltd v De Beer NO and others[[2014] ZALC 15; (2014) 35 ILJ 2379 (LAC) at para 31.] (DHL) to find that the commissioner ought to have placed reliance on the polygraph tests conducted. The finding made by the Labour Court in this regard was erroneous given that no expert evidence had been put up pertaining to the manner in which such polygraph tests had been conducted or their results analysed. It followed that the commissioner cannot be faulted for disregarding the results of such tests. searching the employee’s bag without his authorisation or permission and in his absence JR2281/21 SACCAWU obo Dlamini v Commission for Conciliation, Mediation and Arbitration and Others (JR2281/21) [2024] ZALCJHB 180 (29 April 2024) he removed the company’s property (lemon juice) without approval or authorisation. [21] The company had to prove that the bottle allegedly removed from the employee’s bag contained lemon juice. The company failed to discharge its onus. The investigation, which involved taking and searching the employee’s bag without his authorisation or permission and in his absence was, in my view, not only clumsily and poorly conducted, but it also violated the employee’s fundamental right to privacy enshrined in the Constitution.[7] where parties agree that the documents are what they purport JR320/2022 Gauteng Film Commission v Commission for Conciliation, Mediation and Arbitration and Others (JR320/2022) [2024] ZALCJHB 229 (4 June 2024) "22.4 The applicant correctly pointed out that, where parties agree that the documents are what they purport to be, this is simply an admission that such documents are authentic. The admission does not permit the commissioner to treat such documents as evidence, in the absence of evidence relating to such documents.[4] The references to evidence in the ruling can only mean that the commissioner had regard to the documents, and treated them as evidence. 22.5 The applicant contends that the commissioner, having found that there was a dismissal, failed to give it an opportunity to prove that the dismissal was substantively fair.[5] As a result, oral evidence was not presented by either party in respect of the disputes of fact - including those in the pre-arbitration minute. It is clearly prejudicial to have deprived the applicant of an opportunity to demonstrate that the dismissal was fair. 22.6 The applicant submits that, despite the fact that both parties were legally represented, the commissioner should, nevertheless, have insisted on oral evidence because evidence was required on key issues, including whether the third respondent held a belief that his employment contract would be renewed, and such belief was reasonable. I simply cannot accept that the commissioners must intervene to the same degree where parties are represented. Legal practitioners are trained professionals, and do not require the guidance of commissioners. The role of the commissioner is not to guide and assist all who appear before them. Instead, the role of the commissioner is “to perform a balancing act as there is a thin dividing line between the management of the arbitration and getting involved in the fray.” [6] " not adduce any reliable or credible evidence to show how Zulu had conspired against him JR1219/2021 Khubeka v Metal Engineering Industries Bargaining Council and Others.rtf (JR1219/2021) [2024] ZALCJHB 249 (25 June 2024) [16] The Arbitrator concluded that in the light of the common cause facts that the welding rods were found in his vehicle, the Applicant did not adduce any reliable or credible evidence to show how Zulu had conspired against him or had access to the rods in circumstances where on his own version, it was impossible for any unauthorised employee to access the material from the Stores. Hearsay evidence: The arbitrator held that the failure to call the authors of the articles amounted to no evidence having been led against the employees. In this regard, he was correct as there was no application before him for its admission. JA21/22 Pioneer Foods (Pty) Ltd t/a Essential Foods v Shear N.O. (JA21/22) [2024] ZALAC 46 (18 October 2024) Newspaper and Facebook articles – Complaint of not admitting hearsay evidence – Appellant concedes that evidence it presented is hearsay – Contends arbitrator should have found it to be in interests of justice to admit such evidence – Arbitrator had no obligation to consider admission of hearsay evidence without an application for such admission – Appellant’s evidence was properly rejected – Appeal dismissed – Law of Evidence Amendment Act 45 of 1988, s 3(1). [27] The appellant concedes that the newspaper and Facebook evidence it presented is hearsay but contends that the arbitrator should have applied section 3(3) of the Act and found it to be in the interests of justice to admit such evidence. I agree with the Labour Court that in the absence of a foundation having been laid for the admission of hearsay evidence in terms of the Act, the appellant’s evidence was properly rejected. "[24] In S v Ndhlovu and others[[2002] ZASCA 70; 2002 (2) SACR 325 (SCA) at para 18.] (Ndhlovu), the Supreme Court of Appeal explained the rule as follows: ‘Third, an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial, nor in argument, still less in the court’s judgment, nor on appeal. The prosecution, before closing its case, must clearly signal its intention to invoke the provisions of the Act, and, before the State closes its case, the trial judge must rule on admissibility, so that the accused can appreciate the full evidentiary ambit he or she faces.’" [25] In Exxaro Coal (Pty) Ltd v Chipane and Others[[2019] ZALAC 52; (2019) 40 ILJ 2485 (LAC).], the Court applied Ndhlovu in an arbitration context and the Labour Appeal Court said that “[t]he same ought to be true for arbitration conducted in an adversarial fashion because fairness to both parties is paramount”.[9] The fact that the arbitrator rejected, without ruling on the admissibility of the hearsay evidence, does not warrant the setting aside of these proceedings. The case is distinguishable because the arbitrator was not called upon to decide the issue at any stage of proceedings. The arbitrator held that the failure to call the authors of the articles amounted to no evidence having been led against the employees. In this regard, he was correct as there was no application before him for its admission. Forensic Investor report JR1575/21 Musawenkosi Mkhwanazi v Tokiso Dispute Settlement (Pty) Ltd (JR1575/21) [2024] ZALCJHB 271 (5 July 2024) "[18] I cannot fault this finding in the least. In Cawood v Two Rivers Platinum Mine and others [(2023) 44 ILJ 1241 (LC) at para 29.] the Court held thus: “In relation to Mr. Swanepoel, the applicant contends that the Commissioner erred in being guided by the evidence of Mr. Swanepoel because Mr. Swanepoel was not present or party to most of the issues he testified to. Mr Swanepoel was the investigating officer and was called to give evidence in his capacity as such. By design, investigators rely on evidence gathered during the investigation. They are seldom party to the issues they investigate and later testify on at an enquiry and/or court sitting. Their duty is to investigate and present their findings and/or recommendations to the presiding officer. Therefore, the applicant’s argument that Mr. Swanepoel was not present or party to most of the issues he testified about is untenable and falls to be rejected.”" [19] The Labour Court made it clear in Cawood that the evidence of an investigating officer cannot be regarded as hearsay evidence. The award of the arbitrator aligns to this reasoning. purpose of cross-examination JR2548/19 Sandvik Mining and Construction (RSA) (pty) Ltd v Nkuna and others (JR2548/19) [2024] ZALCJHB 292 (22 July 2024) "[79] In Platinum Mile Resources (Pty) Ltd v CCMA and Others[(JR 427/20) [2023] ZALCJHB 52 (1 March 2023) at paras [41] – [45].], the Court per Prinsloo J entrenched the following principles concerning versions not put to witnesses: ‘[41] After a witness has given his or her evidence in chief, the other party is given the opportunity to cross-examine the witness. The intended purpose of cross-examination is inter alia to reveal weaknesses in the evidence adduced, to challenge the truth or accuracy of the witness’s version, to bring to light facts reinforcing the cross-examiner’s case, to elicit favourable facts, to place a defence on record and to put the version of the cross-examining party. [42] A party has a duty to cross-examine on aspects which he or she disputes. The rationale of the duty to cross-examine is that the witness should be cross-examined so as to afford him or her an opportunity of answering points supposedly unfavourable to him. [43] The failure to cross-examine a witness about an aspect of his or her evidence may have the result that the evidence may not be called into question later. The cross-examiner who disputes what the witness says has a duty to give the witness an opportunity to explain his or her evidence, to qualify it or to reveal its basis. Failure to do so has been dubbed extremely unfair and improper.[7] Apart from the injustice to the witness, failure to cross-examine may indicate acceptance, comparable with an admission by silence.[8] From this point of view, such evidence will carry more weight than evidence disputed by means of cross-examination and the failure to cross-examine, will be a factor increasing evidential value.[9] [44] A failure to cross-examine a witness on any aspect is generally considered to be an indication that the party who had the opportunity to cross-examine, did not wish to dispute the version or aspects of the version of the particular witness who was available for cross-examination.[10] A cross-examiner is duty bound to put his or her defence or version on each and every aspect he or she wishes to place in issue, to the witness. [45] In Masilela v Leonard Dingler (Pty) Ltd,[11] the Court was faced with a scenario where a version was not put to a witness in cross-examination and held that: “The problem that I have with the applicant's version where it differs from that of Masina is that none of it was put to Masina while he was testifying. This court has been denied the benefit of Masina's response. It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine him upon the facts that he intends to prove in contradiction, to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he should be cross-examined upon the matters that it will be alleged make his evidence unworthy of credit.” In Small v Smith 1954 (3) SA 434 (SWA) Claassen J said at 438: “It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.’’ [ Own emphasis] " Evidence continue failing to call witness JS202/21 AMCU obo Maluleke and Others v Gold Plat Recovery (Pty) Ltd (JS202/21) [2024] ZALCJHB 289; [2024] 10 BLLR 1043 (LC) (29 July 2024) "36] In Brand v Minister of Justice and another[1959 (4) SA 712 (A) at 715] Ogilvie Thompson JA stated: “Now where a witness, who is available and able to elucidate the facts, is not called by a party such failure 'leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him”. (Own emphasis)"   when commissioners are faced with contradicting versions JR50/22 Tempest Car Hire v Lebyane and Others (JR50/22) [2024] ZALCJHB 283 (1 August 2024) "27] In Sasol Mining (Pty) Ltd v Ngqeleni NO and others[6], this Court held that: ‘[7] Regrettably, the commissioner’s logic (or more accurately, the lack of it) permeates many of the awards that are the subject of review proceedings in this court. Some commissioners appear wholly incapable of dealing with disputes of fact - their awards comprise an often-detailed summary of the evidence, followed by an ‘analysis’ that is little more than a truncated regurgitation of that summary accompanied by a few gratuitous remarks on the evidence, followed by a conclusion that bears no logical or legal relationship to what precedes it. What is missing from these awards (the award under review in these proceedings is one of them) are essential ingredients of an assessment of the credibility of the witnesses, a consideration of the inherent probability or improbability of the version that is proffered by the witnesses, and an assessment of the probabilities of the irreconcilable versions before the commissioner. As Cele AJ (as then was) observed in Lukhanji Municipality v Nonxuba NO & Others (2007) ILJ 886 (LC); (2007) 2 BLLR 130 (LC), while the LRA requires a commissioner to conduct an arbitration hearing in a manner that the commissioner deems appropriate in order to determine the dispute fairly and quickly, this does not exempt the commissioner from properly resolving disputes of fact when they arise. [8] In SFW Group Ltd & another v Martell et Cie & others 2003 (1) SA 11 (SCA), the proper approach to the resolution of factual disputes was explained by the Supreme Court of Appeal (per Nienaber JA) in the following terms at para 5: ‘On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So, too, on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its 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’ candour and demeanour in the witness- box, (ii) his bias, latent and blatant, (iii) internal contradictions 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 calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness ‘reliability will depend, apart from the other factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall therefor. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of the assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it.’" [29] The commissioner only focused on credibility and did not deal with probabilities or improbabilities of the different versions, failed to take into consideration that the evidence of the applicant’s witnesses corroborated each other, and failed to establish the reliability of the evidence of the witnesses. "credibility of a witness. In Santam Bpk v Biddulph, that: ‘However, the proper test is not whether a witness is truthful or indeed reliable in all that he says, but whether on a balance of probabilities the essential features of the story which he tells are true (cf R v Kristusamy 1945 AD 549 at 556 and H C Nicholas ‘Credibility of Witness’ (1985) 102 SALJ 32 especially at 32 – 35).‘" "[33] In S v Mkohle[8], the Appellate Division held that: ‘Contradictions per se do not lead to the rejection of a witness’ evidence… [T]hey may simply be indicative of an error… [N]ot every error made by a witness affects his credibility; in each case the trier of fact has to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance and their bearing on other parts of the witness’ evidence.’" [44] The finding by the commissioner that the evidence of the applicant was hearsay evidence materially affected the outcome of the arbitration proceedings. In terms of section 3(4) of the Law of Evidence Amendment Act[10] (LEAA), hearsay evidence means evidence whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence. rule 29 of the CCMA JA98/22 Moolman v Commission For Conciliation, Mediation and Arbitration and Others (JA98/22) [2024] ZALCJHB 339 (22 August 2024) [58]  The test to apply in determining whether a document called upon to be disclosed or discovered is relevant to any matter under consideration was set out in the English case of Compagnie v Finance et Commerciale du Pacifique v Peruvian Guano Co (1882),[27] which was subsequently adopted and accepted as part of the South Africa law.[28] "59]  The test to apply in determining the relevancy of a document called upon to be disclosed is set out in Peruvian Guano [11 QBD 55.] as follows:   “It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit (the document) either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.”" "[60]  The process underlying the discovery and disclosure of relevant documents is underpinned by the consideration of ensuring a fair trial. This is noted by the Constitutional Court in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as amicus curiae) In re: Masetlha v President of the Republic of South Africa and another,[2008 (5) SA 31 (CC) at para 25.] when it said:   ""Ordinarily courts would look favourably on a claim of a litigant to gain access to documents or other information reasonably required to assert or protect a threatened right or to advance a cause of action. This is so because courts take seriously the valid interest of a litigant to be placed in a position to present its case fully during the course of litigation. Whilst weighing meticulously where the interests of justice lie, courts strive to afford a party a reasonable opportunity to achieve its purpose in advancing its case. After all, an adequate opportunity to prepare and present one’s case is a time-honoured part of a litigating party's right to a fair trial.”" [61]  In the present matter, the Labour Court reviewed the commissioner's procedural ruling because the documents were irrelevant. The respondents' argument, which the Labour Court accepted, was that the appellant had failed to show the relevancy of the documents in question in relation to the dismissal dispute. 67]  Furthermore, the Labour Court erred in reviewing and setting aside the commissioner's ruling in this matter because the respondents made no case that the commissioner committed a gross irregularity in ordering the disclosure of the documents. The commissioner had broad discretion to order or refuse the applicant's request to disclose the documents. "[72]  The courts often resort to a confidentiality regime to balance the interests of parties in a dispute over discovery or disclosure. In Masetlha, the Constitutional Court held that whenever there is a claim for confidentiality over a call for discovery or disclosure of documents, consideration of fairness comes into play. In balancing the interests of both parties, the court will consider the protection of the property of the objecting party in the form of confidential information and the need to ensure that the other party is not hindered in presenting its case. [34] In Helen Suzman Foundation v Judicial Service Commission[35] the Constitutional Court held that:   “a court that has found the information in issue to be confidential has a discretion to make an order concerning access to it…”" The test for absolution from the instance JS795/2022 Solidarity obo Members v Eskom Holdings (JS795/2022) [2024] ZALCJHB 356 (5 September 2024) 24]  The test for absolution from the instance sought at the close of the applicant’s case is not whether the evidence led by the applicant established what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence could or might (not should, or ought to) find for the applicant.[2]   [25]  This implies that the applicant has to make out a prima facie case in the sense that there is evidence relating to all the elements of the claim in order to survive absolution because, without such evidence, no Court could find for the applicant.[3] [42]  The Applicant accepted that the rate payable for overtime is an issue that is subject to negotiation and it was not disputed that Eskom reviews the conditions of employment annually. Given the wording and the context within which the settlement agreement was concluded, it is evidently not an eternal agreement to pay an overtime rate of 1,75, more so as the rate of overtime pay is subject to annual review and negotiation. Hearsay evidence: JR1615/21 Mabule v Commission for Conciliation, Mediation and Arbitration and Others (JR1615/21) [2024] ZALCJHB 365; [2024] 12 BLLR 1294 (LC) (13 September 2024) [16]  The Second Respondent relied upon the authority of Alpha Pharm (EC) (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[2], where the Court accepted that it was in the interests of justice for the Commissioner to admit the statement from a witness into evidence who was not called to come and testify during the arbitration and weigh its probability against the evidence tendered. However, the Respondent bore the evidentiary burden over and above mere reliance on hearsay. [18]  The question is therefore whether the Second Respondent was able to reach to an appropriate ruling without the testimony of Mrs Senna who according to the Third Respondent was the main witness in the internal disciplinary hearing. "[20]  In consideration of the submissions made by both the Applicant and the Third Respondent, it is noted that in paragraph 77, the Constitutional Court [Kapa v S[2023 (4) BCLR 370 (CC); [2023] ZACC 1.]]stated that: ‘the factors listed in Section 3(1)(c) of the Hearsay Act must be viewed holistically and weighed collectively in determining whether it is in the interests of justice to admit the hearsay evidence. The factors that bear consideration when a court is determining whether it is in the interest of justice for the statement to be admitted are: (a)      the nature of the proceedings; (b)      the nature of the evidence; (c)      the purpose for which the evidence is tendered as evidence; (d)      the probative value of the evidence; (e)      the reason why the evidence is not given by Ms Dasi; (f)       any prejudice which the admission of the evidence might entail for the Applicant; and (g)      any other factor which should, in the opinion of the court, be taken into account.’ " [33]  Having regard to the above analysis on the failure by the Second Respondent to holistically consider the factors enshrined under the provisions of Section 3(1)(c) of the Hearsay Act which led to an arbitration award to the exclusion of the testimony of Mrs Senna, this Honourable Court is not convinced that a proper and/or appropriate ruling could be reached. Hearsay: Exxaro authority considered in a review case JR1527/22 Sithole v Commission For Conciliation, Mediation and Arbitration and Others (JR1527/22) [2024] ZALCJHB 376 (20 September 2024) "[27]  Mr Itzkin argued on behalf of the Third Respondent that the incorrect admission or rejection of hearsay evidence was not in itself a silver bullet that meant every award that may incorrectly have dealt with such an issue needed to be set aside. He argued that the proper test was to consider the totality of the evidence before the Commissioner and whether the handling of hearsay evidence had a distorting effect on the outcome of the award.   [28]  I agree with Mr Itzkin that even if the Commissioner commits an error in the assessment of evidence, the subsequent award will only be set aside if that error has a distorting effect on the outcome of the award or, in other words, the resulting award can be said to be unreasonable in light of all the evidence properly before the Commissioner.[4] " [30]... In other words, this is not a case where hearsay evidence the Applicant intended to rely on was belatedly rejected, but rather where evidence led that the Applicant did not want admitted but to which he had not objected was taken into account. The prejudice to the Applicant in those circumstances is different and the outcome of those two cases must be seen in that context. This is just to emphasize that the setting aside of an award does not immediately follow from a finding that hearsay evidence was not properly dealt with at the CCMA. [35]  To my mind, the Commissioner’s finding that the Applicant was involved in both of these illegal recruitments was in the circumstances reasonable. Polygraph testing JR 2734/19; JR 472/21 Rolfes Chemicals (Pty) Ltd v Moni N.O and Others (JR 2734/19; JR 472/21) [2024] ZALCJHB 408 (14 October 2024) Dismissal – Stock losses – Investigation into losses by company – Attributable to theft by employees – Adopted method of polygraph testing – Refusal by employees to consent – Polygraph testing was rationally connected to purpose it sought to achieve – To establish cause of losses – Solid basis for company to harbour suspicions against employees – Request for consent for test not unreasonable – Failed to show loyalty and good faith – Dismissals substantively fair. "Rolfes contend that about 60% of the employees had completed the consent forms and went through the test.   [7]  The remaining 40%, which includes the dismissed employees, declined to complete the consent forms, and thus were not subjected to the polygraph test. Management then called all the employees who had refused to complete the consent forms to one-on-one meetings to again explain the process of testing and its purpose, and to impress upon them that they had a duty to assist management in determining the source of stock theft." "[18]  Against the background and the evidence before her, Commissioner Moni concluded that management had a prerogative to subject all employees to a polygraph test. She however concluded that there was no contractual obligation on the employees to subject themselves to the test, which was voluntary, and that their dismissals had nothing to do with the object and purpose of the polygraph testing exercise. The Commissioner further concluded that Rolfes sought to ‘run a blanket polygraph test’ without any genuine or legitimate reason to suspect the employees of any involvement in any wrongdoing.   [19]  The Commissioner upon a consideration of the principles applicable to insubordination concluded that the instruction issued to the employees was unreasonable, and since Rolfes did not have any rules or regarding polygraphy testing. " [33]  The Commissioner reasoned that the use of the test was met with resistance, which further confirmed Rolfes’ suspicions that employees were involved in the thefts and activities of the syndicate. The Commissioner having had regard to inter alia the Code of Good Practice and CCMA Guidelines for Misconduct Arbitrations, concluded that Rolfes acted fairly in dismissing the employees for failing to adhere to the request to undertake the test, and for insubordinate behaviour and conduct that was not in its best interests. The Commissioner regarded the instruction as reasonable, which was further supported by the whistleblower’s statements about the syndicate that was operating in the premises. 51]  In TMT Services and Supplies (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (TMT Services), it was held that defiance of authority can be proven by a single act of defiance, and that it is not necessary for the instruction to be issued on numerous occasions for an act of insubordination to occur. This was so in that the employer’s prerogative to command its subordinates is the principle that is protected by the class of misconduct labelled “insubordination”, and addresses operational requirements of the organisation that ensures that managerial paralysis did not occur.[10] In Sylvania Metals (Pty) Ltd v M.C Mello N.O and others[11], the LAC in reference to Palluci Home Depot (Pty) Ltd v Herskowitz and Others[12], reiterated that the sanction of dismissal should be reserved for instances of gross insolence and gross insubordination or the wilful flouting of the instructions of the employer[13]. 53   A further reason advanced by the employees for refusing to complete the consent forms or subject themselves to the test was that they were waiting for minutes of previous meetings minutes to consider Rolfes’ proposals about the tests. This contention is a red herring, but it can only confirm that the employees had been fully appraised after several meetings were held with them and their representative union. That explanation in any event fell flat in view of the employees’ contention before Commissioner Docrat, that even if they were afforded more time, they would still have refused to complete the consent forms or subject themselves to the polygraph test 53]  Against the above conclusions, it follows that the dismissal of the individual employees was substantively fair. [93]  Much of the evidence proffered by Mr Mabuza and his witness at the arbitration was not put to the applicant’s witnesses. JR2948/19 Buscor (Pty) Ltd v Ntimbana N.O (JR2948/19) [2024] ZALCJHB 458 (22 November 2024) "94]  In Platinum Mile Resources (Pty) Ltd v CCMA and Others[(JR 427/20) [2023] ZALCJHB 52 (1 March 2023) at paras 41 – 45.], the Court per Prinsloo J entrenched the following principles concerning versions not put to witnesses: ‘[41]  After a witness has given his or her evidence in chief, the other party is given the opportunity to cross-examine the witness. The intended purpose of cross-examination is inter alia to reveal weaknesses in the evidence adduced, to challenge the truth or accuracy of the witness’s version, to bring to light facts reinforcing the cross-examiner’s case, to elicit favourable facts, to place a defence on record and to put the version of the cross-examining party. [42]  A party has a duty to cross-examine on aspects which he or she disputes. The rationale of the duty to cross-examine is that the witness should be cross-examined so as to afford him or her an opportunity of answering points supposedly unfavourable to him. [43]  The failure to cross-examine a witness about an aspect of his or her evidence may have the result that the evidence may not be called into question later. The cross-examiner who disputes what the witness says has a duty to give the witness an opportunity to explain his or her evidence, to qualify it or to reveal its basis. Failure to do so has been dubbed extremely unfair and improper.[7] Apart from the injustice to the witness, failure to cross-examine may indicate acceptance, comparable with an admission by silence.[8] From this point of view, such evidence will carry more weight than evidence disputed by means of cross-examination and the failure to cross-examine, will be a factor increasing evidential value.[9] [44]     A failure to cross-examine a witness on any aspect is generally considered to be an indication that the party who had the opportunity to cross-examine, did not wish to dispute the version or aspects of the version of the particular witness who was available for cross-examination.[10] A cross-examiner is duty bound to put his or her defence or version on each and every aspect he or she wishes to place in issue, to the witness. [45]  In Masilela v Leonard Dingler (Pty) Ltd,[11] the Court was faced with a scenario where a version was not put to a witness in cross-examination and held that:    “The problem that I have with the applicant's version where it differs from that of Masina is that none of it was put to Masina while he was testifying. This court has been denied the benefit of Masina's response. It is trite that if a party wishes to lead evidence to contradict an opposing witness, he should first cross-examine him upon the facts that he intends to prove in contradiction, to give the witness an opportunity for explanation. Similarly if the court is to be asked to disbelieve a witness, he should be cross-examined upon the matters that it will be alleged make his evidence unworthy of credit.” In Small v Smith 1954 (3) SA 434 (SWA) Claassen J said at 438: “It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.’’ [Own emphasis]" Evidence continue Hearsay DA 04/2024 CTP Gravure (Pty) a division of CTP Limited v Statutory Council for Printing Newspaper and Packaging Industry and Others (DA 04/2024) [2025] ZALAC 16 (20 March 2025) 26]  There are three circumstances wherein hearsay evidence may be admitted: on consent between the parties; on provisional admittance with an understanding that the person upon whose credibility the probative value of the evidence depends is to testify at some future point in the proceedings; or by the court if the court, on consideration of relevant factors, is of the opinion that it would be in the interests of justice to admit the evidence. "30]  In applying the hearsay provisions of the Act, the Supreme Court of Appeal in S v Ndhlovu and Others[2002 (6) SA 305 (SCA).] (Ndhlovu) set out three safeguards to be applied: ‘[17]    … ·                 First, a presiding judicial official is generally under a duty to prevent a witness heedlessly giving vent to hearsay evidence. More specifically under the Act, 'It is the duty of a trial Judge to keep inadmissible evidence out, [and] not to listen passively as the record is turned into a papery sump of ''evidence”’. ·                 Second, the Act cannot be applied against an unrepresented accused to whom the significance of its provisions have not been explained. … [18]    Third, an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial, nor in argument, still less in the court's judgment, nor on appeal. The prosecution, before closing its case, must clearly signal its intention to invoke the provisions of the Act, and, before the State closes its case, the trial Judge must rule on admissibility, so that the accused can appreciate the full evidentiary ambit he or she faces.’" "[31]  This Court in Exxaro confirmed the applicability of the safeguards set out in Ndhlovu within the context of arbitration proceedings and held that: ‘Those safeguards and precautions, duly adapted, also apply to the application of s 3 of the LEAA in civil proceedings. Because of the similarities between civil proceedings and arbitration proceedings, the overwhelmingly, adversarial nature of arbitration proceedings under the LRA, and the overarching requirement that such proceedings be fair, those safeguards and precautions, duly adapted, apply equally to arbitration proceedings to ensure fairness and serve as an invaluable guide for commissioners and arbitrators when confronted with hearsay evidence, and, particularly, when applying s 3 of the LEAA. Adapted they would include the following: (1) section 3(1)(c) of the LEAA is not a licence for the wholesale admission of hearsay evidence in the proceedings; (2) in applying the section the commissioner must be careful to ensure that fairness is not compromised; (3) a commissioner is to be alert to the introduction of hearsay evidence and ought not to remain passive in that regard; (4) a party must as early as possible in the proceedings make known its intention to rely on hearsay evidence so that the other party is able to reasonably appreciate the evidentiary ambit, or challenge, that he/she or it is facing. To ensure compliance, a commissioner should at the outset require parties to indicate such an intention; (5) the commissioner must explain to the parties the significance of the provisions of s 3 of the LEAA, or of the alternative, fair standard and procedure adopted by the commissioner to consider the admission of the evidence; (6) the commissioner must timeously rule on the admission of the hearsay evidence and the ruling on admissibility should not be made for the first time at the end of the arbitration, or in the closing argument, or in the award. The point at which a ruling on the admissibility of evidence is made is crucial to ensure fairness in a criminal trial. The same ought to be true for an arbitration conducted in an adversarial fashion because fairness to both parties is paramount.’[4] (emphasis added)" "[32]  In National Union of Metalworkers of South Africa obo Mokase v Nissan South Africa (Pty) Ltd and others[5] (Nissan), this Court expanded on the importance of timeous rulings on the admission of the hearsay evidence: ‘The importance of a timeous ruling on the admissibility of the hearsay evidence is that it provides parties with the opportunity to make submissions on the issue and, if informed that such evidence is to be excluded, to consider whether it is possible to rely on other evidence or not. Given the nature of the evidence and the reliance placed on it in the proceedings before the commissioner, the failure to determine the issue and the decision later simply to exclude such evidence, without having regard to the provisions of section 3 or make a timeous ruling on its admissibility, constituted a material misdirection on the part of the commissioner and led to a gross irregularity in the conduct of the proceedings.’" 33]  Although section 138 of the Labour Relations Act[6] gives an arbitrator discretion to conduct the arbitration proceedings in a manner that they consider appropriate to determine the dispute fairly and quickly, this does not mean that an arbitrator may treat evidence in a manner which is unfair to the parties.[7] "[35]...This decision, according to the appellant, had the effect of prejudicing its case by delaying the timing of the ruling to after its case had closed and as such, as stated in Exxaro, “it was too late for either party to do anything to save their (respective) situations”[8].   [36]  However, a late ruling on the admissibility of hearsay evidence may not necessarily warrant the setting aside of the award and for the matter to be remitted back to CCMA or the bargaining council for a hearing de novo.  " no evidence presented of any of the applicants actually having been witnessed or in any manner caught red handed in selling pallets at one of the pallet yards JR1797/17 Mjoli and Others v Peters Papers (Pty) Ltd and Others (JR1797/17) [2025] ZALCJHB 56 (6 February 2025) "[34]         What must thus be considered is what is called the ‘inherent probabilities’.[23] The determination of probabilities entails an inference to be drawn from the evidence as a whole, on the following basis, as explained in SA Post Office v De Lacy and Another[24]:   ‘The process of inferential reasoning calls for an evaluation of all the evidence and not merely selected parts. The inference that is sought to be drawn must be 'consistent with all the proved facts. If it is not, then the inference cannot be drawn' and it must be the 'more natural or plausible, conclusion from among several conceivable ones' when measured against the probabilities.’" "[35]         Deciding a matter on the probabilities thus entails a complete consideration of all the evidence, as a whole, in order to decide which outcome is the most logical, natural and plausible out of a number of possible different outcomes.[25] As said in Bates and Lloyd Aviation (Pty) Ltd v Aviation Insurance Co[26]:   ‘The process of reasoning by inference frequently includes consideration of various hypotheses which are open on the evidence and in civil cases the selection from them, by balancing probabilities, of that hypothesis which seems to be the most natural and plausible (in the sense of acceptable, credible or suitable).’" "[37]         All these probabilities, derived from the evidence as a whole, in my view established at least a proper prima facie case that the applicants perpetrated or were involved in the theft of the pallets, by selling the same at the various pallet yards situate at the DECOs. This was also the conclusion reached by the second respondent, and I believe he cannot be faulted for doing so. As held in Cooper and Another NNO v Merchant Trade Finance Ltd[27]:   ‘… If the facts permit of more than one inference, the Court must select the most ""plausible"" or probable inference. If this favours the litigant on whom the onus rests he is entitled to judgment …’" "[38]         So where does this leave the applicants? As the second respondent correctly and rationally appreciated in his award, the duty then shifted onto the applicants to provide a plausible and acceptable explanation to the contrary, so as to avoid a final conclusion that they committed the misconduct. In Federal Cold Storage Co Ltd v Angehrn and Piel[28] the Court held that: ‘… Once the appellants had proved a prima facie case of misconduct on the part of the respondents in taking, in violation of their duty, a secret profit of the kind described, the dismissal stood prima facie justified, the burden of proof was shifted, and it lay upon the respondents … to prove the righteousness of the transaction. If they failed to discharge that burden satisfactorily, then the prima facie case against them must prevail and their guilt, justifying dismissal, must be taken to be established. …’. And as succinctly said in National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others[29]:   ‘… the third respondent had at least made out a prima facie case. That meant that there was a duty on the second applicant to advance and provide a reasonable alternative explanation. His failure to do so in my view counts heavily against him. … ‘" "40]         Can these explanations be accepted? Obviously, and in this context, it would be required of the second respondent to determine the truth thereof. This entailed conducting the following exercise, as articulated in Sasol Mining (Pty) Ltd v Ngqeleni NO and others[30]:   ‘One of the commissioner's prime functions was to ascertain the truth as to the conflicting versions before him. The commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party's version. …’" "[47]...But in the end, these two witnesses were never called, with no explanation for this failure. As the second respondent correctly found, this in all probability indicated that these witnesses would not support the applicants’ version, and this must count heavily against them. In ABSA Investment Management Services (Pty) Ltd v Crowhurst[33] the Court held:   ‘... it is long established that the failure of a party to call an available witness may found an adverse inference, the inference being that the witness will not support - and may even damage - that party's case …’" "[56]... The fact of the matter is that as a general proposition, dishonesty is the kind of misconduct that justifies the sanction of dismissal as an appropriate and fair sanction.[34] In SA Society of Bank Officials and Another v Standard Bank of SA and Others[35] it was held as follows:   ‘Dishonesty as an aspect of misconduct is a generic term embracing all forms of conduct involving deception. This court in Nedcor Bank Ltd v Frank & others defined dishonesty as a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently. Deceitfulness can manifest itself in various forms, which include providing false information, non-disclosure of information, pilfering, theft and fraud. The fiduciary duty owed by an employee to the employer generally renders any dishonest conduct a material breach of the employment relationship, thereby justifying summary dismissal. …’" "[57]...There is little doubt that the applicants sought to escape responsibility based on contrived and false defences and explanations. This means, as appositely described in Malaka v General Public Service Sectoral Bargaining Council and Others[36], the following:   ‘The evidence reveals that the appellant’s dishonest conduct rendered continued employment intolerable and incapable of restitution. Conduct, such as we have here, is incompatible with the trust and confidence necessary for the continuation of the employment relationship. The Department of Justice was entitled, in the circumstances, to end the employment relationship …’" gross negligence JR1199/21 Njobe v Commission for Conciliation, Mediation and Arbitration and Others (JR1199/21) [2025] ZALCJHB 81 (26 February 2025) o ‘hold’ two other employees after they went through the X-ray system, which had indicated a ‘dark spot’ on their persons. The applicant is alleged to have failed to investigate and conduct physical searches on the two employees, [20]  In the light of the undisputed nature of the offence having taken place, the Court concludes that given the nature of Sibanye’s operations, the applicant’s misconduct, given his critical responsibilities, was clearly contrary to those responsibilities. He failed to comply with the standard of care that would have been exercised in the circumstances by a reasonable person. "[21]  The only issue is whether the negligence complained of was of a gross nature to deserve a sanction of dismissal. In Transnet Ltd t/a Portnet v MV ‘Stella Tingas[5], Scott JA held that; “…[T]o qualify as gross negligence the conduct in question, although falling short of dolus eventualis, must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorized as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, total failure to take care. If something less were required, the distinction between ordinary and gross negligence would lose its validity.”" "[22]  It was added in NUMSA[6] that; “…whether negligence, once established, is gross, is a matter of degree, to be determined considering a number of relevant factors. Those factors are inter alia whether the employee is persistently negligent; the seriousness of the act or omission; whether the act or omission is inexcusable; the employee’s awareness of the performance standard required or the procedure to be complied with; the seriousness of the consequences of the act or omission; damages caused and the skills and experience of the employee or the position held by the employee.”[7]," 23]  I have already indicated that the applicant’s conduct involved a departure from the standard of the reasonable person in his position. Clearly as also indicated, a higher standard of care was required of the applicant in the performance of his duties, given the nature of Sibanye’s operations. It is safe to conclude that his conduct evinced a total failure to take care. In addition, it is concluded that his omission was of a serious nature, particularly since there was reason to believe the individual he had failed to further search and investigate after a ‘dark spot’ was detected on the X-ray viewer, may have concealed or attempted to remove material from the plant, and further since he had been previously warned and counselled in regard to similar previous incidents. Contradictions JR1981/20 Samancor Chrome Limited v NUMSA obo Mokoena and Others (JR1981/20) [2025] ZALCJHB 78 (28 February 2025) "[43]   The fact that Ms Mahlangu and Ms Hamule evidence was different in respect of what the employee discussed with them did not mean that they were not credible witnesses and that their evidence was to be rejected. It further did not mean that the essential features of their story were not true. In Santam Bpk v Biddulph[8], the SCA held that:   ‘However, the proper test is not whether a witness is truthful or indeed reliable in all that he says, but whether on a balance of probabilities the essential features of the story which he tells are true (cf R v Kristusamy 1945 AD 549 AT 556 and H C Nicholas Credibility of Witness (1985) 102 SALJ 32 especially at 32 – 35)." "[44]   In S v Mkohle[9], the Appellate Division held that:   ‘Contradictions per se do not lead to the rejection of a witness’ evidence… [T]hey may simply be indicative of an error… [N]ot every error made by a witness affects his credibility, in each case the trier of fact ha to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance and their bearing on other parts of the witness evidence.’" necessary to draw inferences JR1105/21 Mofokeng v Botha and Others (JR1105/21) [2025] ZALCJHB 102 (14 March 2025) 59]  Hence, it is clear that both the third respondent, in dismissing the applicant, and the Commissioner, in finding that the applicant’s dismissal was substantively fair, drew and relied upon inferences based upon, primarily, the documentation discussed above. "60]  In the determination of disputes, it is acceptable and sometimes necessary to draw inferences. However, inferences must be based on proven facts and arrived at through logical reasoning. Inferences should not be mere conjecture or speculation.[11] In the oft-cited judgment in Caswell v Powell Duffryn Associated Collieries Ltd[12] it was put thus: “Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish... But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.''" "[61]  As mentioned, in Securitas[13] the LAC pointed out that an arbitration award will be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator.   [62]  Were the inferences in this matter reasonably drawn? A proper evaluation of the evidence before the Commissioner requires a step-by-step analysis of the inferences drawn by the third respondent, in dismissing the applicant, and by the Commissioner in finding that the dismissal was substantively fair. Specifically, three critical questions arise: (i) was there an actual fuel loss? (ii) if so, can it reasonably be attributed to theft? (iii) if so, what evidence establishes that the applicant, rather than Mr Gumede or someone else, was responsible?" [67]  These anomalies in the documentary evidence render the documents entirely unreliable. In my view, no facts relevant to the issues in casu are proven by these documents, and no reasonable inferences of fuel loss could thus be made from these reports. The only reasonable inference to be drawn from this documentary evidence is that the data inconsistencies, unexplained fluctuations in fuel levels, and contradictions among system-generated reports and uploaded data, indicate fundamental flaws in the reliability of the third respondent’s monitoring mechanisms. The evidence does not support a clear, objective, or verifiable record of the generator’s fuel levels at any given time. "[76]  It is so that our courts have long held that once an employer has made out a prima facie case of misconduct, the burden of rebuttal shifts to the employee to present a reasonable alternative explanation. In Federal Cold Storage Co Ltd v Angehrn and Piel[14], the Court held: “Once the appellants had proved a prima facie case of misconduct on the part of the respondents in taking, in violation of their duty, a secret profit of the kind described, the dismissal stood prima facie justified, the burden of proof was shifted, and it lay upon the respondents … to prove the righteousness of the transaction. If they failed to discharge that burden satisfactorily, then the prima facie case against them must prevail and their guilt, justifying dismissal, must be taken to be established.”   [77]  Similarly, in National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others[15], the Court emphasised: “… the third respondent had at least made out a prima facie case. That meant that there was a duty on the second applicant to advance and provide a reasonable alternative explanation. His failure to do so in my view counts heavily against him. …”" [78]  While it is accepted that when an employer establishes a prima facie case of misconduct, an employee may have a duty to provide a reasonable alternative explanation, this principle only applies where a prima facie case has indeed been established. The key distinction in the present case is that a proper analysis of the evidence before the Commissioner reveals that the third respondent failed to establish even a prima facie case of wrongdoing on the part of the applicant in the first place. The Commissioner, therefore, erred in suggesting that the applicant bore an evidentiary burden to provide an alternative explanation, when no case had been made out against him to begin with. polygraph testing J409/2024 Harmony Gold Mining Company Limited v Commission for Conciliation, Mediation and Arbitration and Other (J409/2024) [2025] ZALCJHB 176 (5 May 2025) "[57]  The Labour Court in FAWU obo Kapesi and Others v Premier Foods Ltd t/a Ribbon Salt River[[2010] ZALC 61; (2010) 31 ILJ 1654 (LC) at para 86.] confirmed that polygraph test results have to be supported by direct evidence, and in the absence of direct evidence they cannot be relied upon to determine the guilt of the employee. The court held that: ‘In SATAWU & Others v Protea Security Services, Protea Security Services sought to place guards with a new client who insisted that security guards used by it had to pass a polygraph test. When the guards could not be persuaded to undergo polygraph testing the employer embarked upon a section189 consultative process. The Court held that before it could be fair to force employees to subject themselves to testing, the test or assessment used would need to be: (i) shown to be scientifically valid and reliable; (ii) shown to be capable of being fairly applied to employees; (iii) shown to not be biased against any employee or group. The court held that the employer had the onus to show that a dismissal was fair and therefore had to show that the test used is valid and reliable and not biased against any employee or group of employees. In Truworths v CCMA the Court expressed doubts as to the probative value of the polygraph on its own: “[37]   What appears from the aforegoing is that a polygraph test on its own cannot be used to determine the guilt of an employee (see also John Grogan Workplace Law 9th edition page 160.) However, a polygraph certainly may be taken into account where other supporting evidence is available provided also that there is clear evidence on the qualifications of the polygraphist and provided that it is clear from the evidence that the test was done according to acceptable and recognizable standards. At the very least, the result of a properly conducted polygraph is evidence in corroboration of the employer’s evidence and may be taken into account as a factor in assessing the credibility of a witness and in assessing the probabilities. The mere fact that an employee, however, refuses to undergo a polygraph is not in itself sufficient to substantiate an employee’s guilt.”" [58]...The other issue is that polygraph tests for both Van Zyl and Evert were inconclusive, and this cannot translate to a conclusion that both witnesses were truthful. The Commissioner was correct to reject these inconclusive polygraph tests as evidence in the absence of the Appellant leading any direct evidence. commissioner of oaths 2025/022233 Lowveld Packaging (Proprietary) Ltd v Heine and Others (2025/022233) [2025] ZALCJHB 190 (5 May 2025) [44]       It was furthermore submitted by the First Respondent that the Commissioner of Oaths, Lazarus Chakadzingwa, who administered the affidavit of Reginald Makasi on behalf of the Applicant, is ostensibly an employee of Modern Packaging Distribution in Tswane, Pretoria West, a company of which Makasi is also a director. Therefore, Chakadzingwa is conflicted, and the commissioning of the oath is in contravention of the Oaths Act, in that a commissioner of oaths who attests an affidavit is required to be impartial, unbiased, and entirely independent of the office where the affidavit was drawn up or signed. "[45]       The affidavit of Reginald Makasi shows that he is the Director of the Applicant, which is Lowveld Packaging (Proprietary) Limited, based in Nelspruit, whereas Lazarus Chakadzingwa indicated that he is the CA(SA) of Modern Packaging Distribution, Tshwane, Pretoria West. The First Respondent has not been able to successfully show the conflict of interest of the commissioner of oaths, but merely alleged that Makasi is ostensibly the employee of Modern Packaging Distribution without any substantiation to the allegations. Ostensibly means it appears, though not necessarily so or apparently. This is not factual and therefore cannot stand the certainty test of such facts.   [46]       Therefore, the rule of impartiality, unbiasedness, and independence of the commissioner of oaths will not apply under the circumstances. Such submissions are therefore dismissed as they have not been proven by the First Respondent in any manner." "[3]          Further, an order interdicting and restraining the First Respondent and Second Respondent from divulging the Applicant’s confidential information, including but not limited to the Applicant’s customers, suppliers’ costing, new developments, patents, innovations and methods of conducting business to the Third Respondent or any other person.   [4]          Furthermore, directing the First Respondent and Second Respondent to forthwith return the Applicant’s confidential information, including but not limited to the Applicant’s customers, suppliers’ costing, new developments, patents, innovations and methods of conducting business to the Applicant."   (Complete)

Labour Law cases decided in the South African Courts (Highlights and updated 1997 to 6 2025 [Copyright: Marius Scheepers/15.6.1]) Labour Court Review. Review CCMA Ruling Ruling on condonation not award A ruling, like any act other than an award, must be reviewed in terms of s158(1)(g) of the LRA JR822/01 Mould v Roopa NO & Others Record the employer was obliged in terms of the LC Rules to transcribe the Commissioners handwritten notes as part of the record DA15/02 Lifecare Special Health Services (Pty) Ltd t/a Ekuhlengeni Care Centre v CCMA & Others it was competent to review the arbitrators decision even though it was interlocutory refuse condonation C1034/02 Hangana v Education Labour Relations Council & Others procedure no record referred back to CCMA JR1453/06 Doornpoort Kwik Spar CC v Odendaal & Others Missing record employer was in a position to demonstrate its grounds for review on portions of the available records and that it was not prejudiced and should gain no advantage simply because certain portions, not relevant to its grounds for review, were missing. JR1333\05 New Clicks SA (Pty) Ltd v CCMA & Others Court has a discretion to substitute an award or a ruling made by a commissioner (1) Where the end result is in any event a foregone conclusion and it would merely be a waste of time to order that tribunal or functionary to reconsider the matter; (2) Where a further delay would cause unjustifiable prejudice to the applicant; (3) Where the functionary or tribunal has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again; (4) Where the court is in as good a position as the administrative body to make the decision itself. JR2397/06 Emfuleni Local Municipality v Sekhabisa N.O. & Others Reasonable period; Parties applying for review of awards must prosecute their applications to finality within a reasonable period of time or face dismissal of their applications; Justice and fairness the key criteria for determining whether or not to dismiss application JR2113/05 NUMSA obo Ntobeng & Others v Witbank Foundry & Others where a party alleges a gross irregularity, this allegation must be made clear in the review application JR398/07 Ngobeni v Redding N.O. & Another Arbitration referred merits of matter to be heard by another arbitrator; second arbitrator not bound by the first arbitrators ruling on admissibility; ruling; reviewed and set aside JR3217/06 Sondolo IT (Pty) Ltd v Howes & Others Arbitration Private Arbitration Narrow test JR917/06 Steyn v Middelburg Ferrochrome (A Division of Samcor Limited) & Others Arbitration Private Arbitration Other case law cited Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA) JR917/06 Steyn v Middelburg Ferrochrome (A Division of Samcor Limited) & Others Technical Not same requirements as on factual issues review Biased JR3121/09 Raswisi v CCMA and Others Incomplete proceedings undesirable for the court to entertain applications to review and set aside rulings made in uncompleted proceedings. J1186/11 Workforce Group (Pty) Ltd v National Textile Bargaining Council and Another REVIEW test? The court, by necessity, had to scrutinize the reasons of the commissioner not to determine whether the result was correct; or for that matter substantively reasonable, but to determine whether there was a latent irregularity, that is, an irregularity that had taken place within the mind of the commissioner, which would only be ascertainable from his or her reasons. DA20/2010 Herholdt v Nedbank Ltd Right to an interpreter JR 1006/11 Mabitsela v Department of Local Government & Housing and Others Sidumo test expanded "to defer to the decision of the employer on the basis that the employer was better placed to make a decision. That approach would not be correct" Test The court further held that an important aspect of the reasonable decision-maker test is for the emphasis to fall on the range of reasonable outcomes and not on the correctness of the outcome. This means that a decision unsupported by any evidence or supported by insufficient evidence, or where there is a glaring inconsistency between the facts established by the commissioner and the final conclusion arrived at, will be unreasonable and stands to be set aside. JR649/07 Tile Africa, Germiston v Hintsho N.O. & Others record Employee failed in his duty to provide court with full transcript of arbitration proceedings; Essential evidence to evaluate commissioners decision not submitted; Application dismissed JR1281/06 Solidarity v CCMA & Others filed late; does not stay enforcement of proceedings, urgency self-created Appl to stay proceedings J1765/10 Spar Group Limited t/a Spar South Rand Distribution Centre v CCMA & Others Test for Issue before the commissioner one that went to jurisdiction of the commissioner, i.e. whether there had been a dismissal. C481/10 Gubevu Security Group (Pty) Ltd v Ruggiero NO and Others Test for Other case law cited Sidumo test not applicable C481/10 Gubevu Security Group (Pty) Ltd v Ruggiero NO and Others private arbitration review in terms of s 33 of Arbitration Act; Act review principles apply JA2/07 National Union of Mineworkers obo 35 Employees v Grogan NO & Another JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others Legality, reasonableness and fairness of arbitration Commissioner: Misconduct exist JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others Commissioner: fairness sanction; was there a breach of workplace rule; Was there a reasonable response when considering evidence in front of them JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others Court: Not to substitute view of own opinion JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others Scope: reasonable outcome that which were justifiable in relation to the reasons given JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others Scope: A "better" decision is irrelevant JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others Guilt: reasonable decision maker JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others Sanction: Commissioner makes value judgment on own sense of fairness JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others Sanction: each case to be decided on totality of circumstances JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others Sanction: Seriousness of misconduct JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others Sanction: Gravity of misconduct iro continued employment relationship JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others Sanction: previous disciplinary records JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others Sanction: personal circumstances JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others Sanction: nature of job JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others Sanction: circumstances of infringement JA38/09 Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council & Others REVIEW test?? whether the decision, based on the material admitted as evidence was one which a reasonable decision-maker could not reach DA20/2010 Herholdt v Nedbank Ltd REVIEW test? duties of a commissioner was to determine the material facts and then to apply the provisions of the LRA had to be determined objectively, with due regard to all the evidence that was before him or her and what the issues were. DA20/2010 Herholdt v Nedbank Ltd REVIEW test? The threshold for interference was lower than that; it being sufficient that the commissioner had failed to apply his mind to certain of the material facts or issues before him, with such having potential for prejudice and the possibility that the result may have been different DA20/2010 Herholdt v Nedbank Ltd REVIEW test? the line between a review on the grounds of substantive reasonableness and an appeal on the merits was a fine one and at times difficult to draw. DA20/2010 Herholdt v Nedbank Ltd Edcon Ltd v Pillemer NO and Others [2010] 1 BLLR 1 (SCA) had decided that the standard of review in Sidumo was conceptually no different to what had previously applied since the earlier decision in Carephone (Pty) Ltd v Marcus NO and Others (1998) 19 ILJ 1425 (LAC). JA12/10 Matsekoleng v Shoprite Checkers (Pty) Ltd Record of Arbitration No reference to the record in terms of the application, Rule 7A need to relate to such grounds. D 183/2010 Msibi v CellC Quantification of compensation. Arbitrator awarding compensation but failing to give reasons for his quantification of compensation. Not a reviewable irregularity. (JR 3289/11) [2014] ZALCJHB 11 Molatudi v Sikwane NO and Others Test Herholdt v Nedbank Ltd (Congress of Trade Unions of SA as amicus curiae) (2013) 34 ILJ 2795; Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others [2014] 1 BLLR 20. [Commercial Workers Union of SA v Tao Ying Metal Industries and Others 2009 (2) SA 204: did not constitute a binding precedent for what the applicant referred to as the process related test on review]. Accordingly, the test to be applied in determining the application was as set out in SCA in Herholdt and the LAC in Goldfields. On consideration of the totality of the evidence, the decision of the commissioner that the applicant had failed to discharge the onus of proving that the dismissal of the employee was fair, was not one that could be said to be a decision to which no reasonable arbitrator could come. (D884/2012) [2014] ZALCJHB 257 Derivco (Pty) Ltd v CCMA and Others Record not kept / destroyed And also taking into account the circumstances of the matter, were reason enough to set the award aside and remitted the matter back to the first respondent for hearing de novo. JR2262/2011) [2014] ZALCJHB 276 Strocam Projects (Pty) Ltd v Metal and Engineering Industries Bargaining Council (MEIBC) and Others s 145(2)(a)(ii) 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 enquiry or arrived at an unreasonable result. A result would only be unreasonable if it were 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 particular facts, were not in and of themselves sufficient for an award to be set aside but were only of any consequence if the effect was to render the outcome unreasonable. PA4/13) [2014] ZALAC 44 Shatterprufe (Pty) Ltd v Seasani NO and Others Grounds Applicant on review could not simply make a broad allegation that an arbitrator had failed to apply their mind to the facts. Applicant has to substantiate the allegation by alluding to those facts which it claimed the arbitrator failed to consider. (JR1560/12) [2014] ZALCJHB 348 City of Johannesburg v South African Local Government Bargaining Council and Others Variation of Award by arbitrator, Without notice to one of parties Audi alteram partem principle not infringed where arbitrator corrected manifest error on basis of evidence that emerged at arbitration itself. (JR 818/2011) [2014] ZALCJHB 185 Ellerines Furnishers (Pty) Ltd v CCMA and Others If award was reviewable, that the dispute was not automatically remitted to the arbitrating authority: It would depend on the nature of the dispute; the reasons of the court in support of the decision to review; the relief sought; as well as any other factors relevant to the dispute. (CA 13/2013) [2015] ZALAC 9 IMATU v City of Cape Town and Others Sidumo test JA01/14 FIRST GARMENT RENTAL (PTY) LTD Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007] ZACC 22; 2008 (2) SA 24 (CC); [2007] 12 BLLR 1097 (CC) where the Constitutional Court held at para 110 that To summarise, Carephone (Pty) Ltd v Marcus NO and Others [1998] 11 BLLR 1117 (LAC) held that s 145 of the LRA was suffused by the then constitutional standard that the outcome of an administrative decision should be justifiable in relation to the reasons given for it. The better approach is that s 145 is now suffused by the constitutional standard of reasonableness. That standard is the one explained in Bato Star (Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC). Is the decision reached by the commissioner one that a reasonable decision-maker could not reach? Applying it will give effect not only to the constitutional right to a fair labour practices, but also to the right to administrative action which is lawful, reasonable and procedurally fair. HEROLDT TEST CA 12/2014 GEORGE ALEXANDER GREY Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA) For a defect in the conduct of the proceedings to have amounted to a gross irregularity as contemplated by Section 145 (2)(ii), the arbitrator must have misconceived the nature of the enquiry 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 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 incomplete record - JA 41/14 Henred Fraunhauf (Pty) Ltd and Another v Marcus N.O and Others record showing that applicant relying on evidence not forming part of the transcribed record - Impossible to determine merits of dispute in the circumstance Test JR 2610/12 Sepang v Dibakwane and Others (JR 2610/12) [2015] ZALCJHB 235 (4 August 2015) In Goldfields Mining South Africa (Pty) Ltd v CCMA held that provided that the arbitrator gave the parties a full opportunity to state their respective cases at the hearing, identified the issue that he or she was required to arbitrate, understood the nature of the dispute and dealt with its substantive merits, the function of the reviewing court is limited to a determination whether the arbitrators decision is one that could not be reached by a reasonable decision-maker on the available material Herholdt, the SCA Constructive dismissal JR1579/11 Armaments Corporation of South Africa Ltd v Nowosenetz N.O. and Others (JR1579/11) [2015] ZALCJHB 241 (5 August 2015) 1) review of first-stage of constructive dismissal is whether facts establish jurisdiction, (2) review of second-stage of constructive dismissal is reasonableness. Test J3277/12 Wholesale Housing Supplies (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (J3277/12) [2015] ZALCJHB 239 (6 August 2015) 13] What this analysis requires where what is at issue is any assessment of whether a reviewable defect and/or irregularity has occurred or what its impact is to be upon an award, is a determination first of the nature of the error alleged to have been committed by the arbitrator and any distorting effect that the error may have had on the outcome of the arbitrators award. If it is reasonably clear that but for the identified error relied upon the award would have been different or cannot stand on its own reasoning, then it is prima facie an unreasonable award. The court must then have regard to the issues and the evidence as a whole to determine whether or not the outcome is nevertheless capable of being sustained on the Sidumo test. Department of Education v Mofokeng & others [2015] 1 BLLR 50 (LAC) The determination of whether a decision is unreasonable in its result is an exercise inherently dependent on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of interrelated questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisaged in the distinctive review grounds developed at common law, now codified and mostly specified in section 6 of the promotion of administrative Justice act (PAJA).; such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith arbitrarily or capriciously etc . The Court must nonetheless still consider with apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence (at paragraph 31).Further: Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had on the arbitrators conception of the enquiry, the determination of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. The material error of this order would point to at least a prima facie unreasonable result. further re-emphasized that the reviewing court should intervene in circumstances where the decision of the Commissioner is entirely disconnected with the evidence or is unsupported by any evidence and involves speculation by the Commissioner Grounds for review JR1103/2009 South African State And Allied Workers' Union and Another v General Service Public Sector Bargaining Council and Others (JR1103/2009) [2015] ZALCJHB 253 (7 August 2015) Naidoo v NBCCI [2012] 9 BLLR 915 (LC) In Naidoo v NBCCI[6] it was held that it is incumbent on an applicant in a review application to establish the grounds for review with reference to the award and the evidence. An applicants bald statement that an arbitrator has failed to apply his/her mind is insufficient. The factual basis for the allegation must be given.[7] Application to dismiss review Rule 11. JR698/2013; J271/2015 Edcon (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others; In re: Thulare and Others v Edcon (Pty) Limited (JR698/2013; J271/2015) [2015] ZALCJHB 392; (2016) 37 ILJ 434 (LC) (13 November 2015) No general principle that a respondent must place an applicant on terms before seeking dismissal of review, especially where Rule 16.2 is of application which allows such applicant to enrol its review for default judgment Review of a private arbitration award in terms of section 33(1) of the Arbitration Act 42 of 1965. JR1342/12 Mkhize v Antrobus SC and Another (JR1342/12) [2015] ZALCJHB 398 (13 November 2015) gross dereliction of duty alternatively gross incompetence and alternatively gross negligence in respect of, inter alia, payments made to the South African Revenue Services SACCAWU v Pick n Pay Retailers Pty Ltd and others [7] The specific grounds upon which a private arbitration award can be reviewed on account of the conduct of the arbitrator are those grounds (strictly interpreted) set out in s 33(1)(a) and (b) of the Arbitration Act, ie misconduct; gross irregularity; or excess of powers. Neither s 33 (just administrative action) nor s 34 (access to courts) of the Constitution apply directly to private arbitrations, and thus cannot serve as a basis for extending the grounds upon which a private arbitration award can be reviewed. In Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and another 2009 (4) SA 529 (CC), O'Regan J, writing for the majority, set out the policy basis for the limited scope of intervention in private arbitrations: ‘Courts should be respectful of the intention of the parties in relation to procedure. In so doing, they should bear in mind the purposes of private arbitration which include the fast and cost-effective resolution of disputes. If courts are too quick to find fault with the manner in which arbitration has been conducted, and too willing to conclude that the faulty procedure is unfair or constitutes a gross irregularity within the meaning of section 33(1), the goals of private arbitration may well be defeated. ‘This cautionary sentiment is reflected in the conclusion reached by Van Dijkhorst AJA in Stocks Civil Engineering: ‘A court is entitled on review to determine whether an arbitrator in fact functioned as arbitrator in the way that he upon his appointment impliedly undertook to do, namely by acting honestly, duly considering all the evidence before him and having due regard to the applicable legal principles. If he does this, but reaches the wrong conclusion, so be it. But if he does not and shirks his task, he does not function as an arbitrator and reneges on the agreement under which he was appointed. His award will then be tainted and reviewable.... An error of law or fact may be evidence of the above in given circumstances, but may in others merely be part of the incorrect reasoning leading to an incorrect result. In short, material malfunctioning is reviewable, a wrong result per se not (unless it evidences malfunctioning). If the malfunctioning is in relation to his duties that would be misconduct by the arbitrator as it would be a breach of the implied terms of his appointment.' Test JR2467/10 SACCAWU obo Tsoku v Commission for Conciliation, Mediation and Arbitration and Others (JR2467/10) [2016] ZALCJHB 21 (26 January 2016) Head of the Department of Education v Mofokeng and others[2015] 1 BLLR 50(LAC)at 60-1, para[33]. Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it willex hypothesibe material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. Test R1279/09b National Commissioner of the South African Police Service v Radebe and Others (JR1279/09b) [2016] ZALCJHB 54 (9 February 2016) The first respondent (Sipho Radebe) did not make his own decision in arbitrating the dispute, he, however cut and pasted the previous arbitration award as if it was his own. Matter is remitted back to the second respondent for arbitration hearing afresh before an arbitrator other than the first respondent. Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC), paragraph 33. Following the Supreme Court of Appeal judgment in Herholdt [2013] 11 BLLR 1074 (SCA). and the Labour Appeal Courts judgment in Gold Fields [2014] 1 BLLR 20 (LAC). Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. Shoprite Checkers v CCMA and others (2015) 36 ILJ 2908 (LC). determining when the failure by an arbitrator to consider facts will be reviewable. The Court accepted the following mode of analysis: a. the first enquiry is whether the facts ignored were material, which will be the case if a consideration of them would (on the probabilities) have caused the commissioner to come to a different result’s. if this is established, the (objectively wrong) result arrived at by the commissioner is prima facie unreasonable. a second enquiry must then be embarked upon it being whether there exists a basis in the evidence overall to displace the prima facie case of unreasonableness; and d. if the answer to this enquiry is in the negative, then the award stands to be set aside on review on the grounds of unreasonableness (and vice versa). ... In summary: Where it is alleged in review proceedings that an arbitrator ignored certain material facts, the enquiry is whether indeed this was the case, and if so, whether these facts were material. If it is found that they were indeed ignored as alleged, and were material, it follows that the arbitrator would have come to a different conclusion had he taken them into account, and therefore the result arrived at would prima facie be unreasonable. Different tests JR923/2013 Steenwerke v Bobbejan N.O. and Others (JR923/2013) [2016] ZALCJHB 60 (22 February 2016) Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) at para 110. whether the decision reached by the arbitrator is one that a reasonable decision maker could not reached. The Constitutional Court very clearly held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision maker could make. In short: A reviewing 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 that is reasonable. record and transcript of the proceedings are lost JR516-11, J2735/13 Cashbuild (Pty) Ltd v Merwe NO and Others (JR516-11, J2735/13) [2016] ZALCJHB 108 (22 March 2016) Shoprite Checkers Ltd v Commission for Conciliation, Mediation and Arbitration & Others (2010) 31 ILJ 1337 (LC) at para 10. an Applicant has a fundamental right to review before the Labour Court and, further, it is not the Applicants fault that the record and transcript of the proceedings are lost. It will be unfair to dismiss the application as it was not the applicants fault that no record was provided. When deciding to refer the matter back to the CCMA one must consider not only the interests of the third respondent but those of the applicant as well. The choice is either to let the award in the third respondents favour stand, or set it aside and to refer the matter for a hearing de novo. If the award is allowed to stand, then the applicants right of review will be completely frustrated, thereby prejudicing it. Goldfields Mining South Africa v Moreki (2014) 35 ILJ 943 (LAC). Bias JR1706/13 Mkhonza and Another v Scottish Clothing Company and Others (JR1706/13) [2016] ZALCJHB 130 (5 April 2016) SA Commercial Catering & Allied Workers Union & others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC); (2000) 21 ILJ 1583 (CC), at 714-5 [14] The Court in Sarfufurther alluded to the apparently double requirement of reasonableness that the application of the test imports. Not only must the person apprehending bias be a reasonable person, but the apprehension itself must in the circumstances be reasonable. This two-fold aspect finds reflection also in S v Roberts, decided shortly after Sarfu, where the Supreme Court of Appeal required both that the apprehension be that of the reasonable person in the position of the litigant and that it be based on reasonable grounds. [15] It is no doubt possible to compact the "double" aspect of reasonableness inasmuch as the reasonable person should not be supposed to entertain unreasonable or ill-informed apprehensions. But the two-fold emphasis does serve to underscore the weight of the burden resting on a person alleging judicial bias or its appearance. [16] The "double" unreasonableness requirement also highlights the fact that mere apprehensiveness on the part of a litigant that a Judge will be biased - even a strongly and honestly felt anxiety - is not enough. The court must carefully scrutinize the apprehension to determine whether it is to be regarded as reasonable. In adjudging this, the court superimposes a normative assessment on the litigant's anxieties. It attributes to the litigant's apprehension a legal value and thereby decides whether it is such that it should be countenanced in law. [17] The legal standard of reasonableness is that expected of a person in the circumstances of the individual whose conduct is being judged. Band of decisions DA17/14 Ethekwini Municipality v Hadebe and Others (DA17/14) [2016] ZALAC 14; [2016] 8 BLLR 745 (LAC) (10 May 2016) In Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (Gold Fields) [2014] 1 BLLR 20 (LAC) where a gross irregularity in the arbitration proceedings is alleged, the enquiry extends to whether the result was unreasonable, in particular, whether the decision arrived at by the arbitrator is one that falls within a band of decisions to which a reasonable decision-maker could come on the available material [25] Therefore, the upshot of both Herholdt and Goldfields is that a process failure on the part of a commissioner does not in itself render an award unreasonable. In order for it to be unreasonable, it has to be established that such failure caused the result of the award to be unreasonable. Thus, a process failure is of no consequences if the final result of the award is, nevertheless, capable of reasonable justification. error of law CA17/2014 Democratic Nursing Organisation of South Africa (DENOSA) obo du Toit and Another v Western Cape Department of Health and Others (CA17/2014) [2016] ZALAC 15; (2016) 37 (ILJ) 1819 (LAC) (12 May 2016) City of Johannesburg Metropolitan Municipality v Gauteng development Tribunaland Others2010 (6) SA 182(CC) at para 91; see also the remarks of Malan J (as he then was) with regard to the implications of Hira, supra in the constitutional dispensation in South African Jewish Board of Deputies v Sutherland N.O and Others2004 (4) SA 368(W) at para 27. courts are given the power to review every error of law provided that it is material; that is that the error affects the outcome. errors in relation to the facts JA12/2015 Rustenburg Platinum Mines Limited (Amandelbult Section) v NUM obo Monageng and Others (JA12/2015) [2016] ZALAC 21 (26 May 2016) Head of Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC) Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it willex hypothesibe material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination [13] What is therefore required when dealing with gross irregularities is firstly to determine the materiality of the error or irregularity and secondly to determine whether that irregularity resulted in an unreasonable outcome. Private Arbitration: Arbitration Act Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC); 2009 (6) BCLR 527 (CC). Brand, FDJ "Judicial Review of Arbitration Awards" (2014)Stell LR2 247-264. Telcordia Technologies Inc v Telkom SA Ltd[2006] ZASCA 112;2007 (3) SA 266(SCA) at para 51;National Union of Mineworkers obo Employees v Grogan NO and Another(2010) 31ILJ1618 (LAC) at para 33. Private Arbitration JR173/2014 Pikitup Johannesburg Soc Limited v Tokiso Dispute Settlement (Pty) Ltd and Others (JR173/2014) [2016] ZALCJHB 179 (17 May 2016) [26] While the wording of section 33(1) of the Arbitration Act and section 145(2) of the LRA is virtually identical, the standard for review in the Arbitration Act is not the same as that of the LRA. Section 33(1) of the Arbitration Act is not infused with a reasonableness standard. Clear Channel Independent (Pty) Ltd v Savage NO and Another (2009) 5 BLLR 439 (LC) at para 36. [29] It was incumbent upon the Applicant to properly submit grounds for review in terms of section 33(1) of the Arbitration Act in its founding affidavit. In light of the differing standards of review in section 33(1) of the Arbitration Act and s 145 of the LRA, a failure to do so would indeed constitute a fatal defect. It does not suffice to simply make general submissions or allegations of gross irregularities on the part of the Second Respondent. gross irregularity still has the meaning attributed to the term inEllis v Morgan and Goldfields Investment. That means it is purely procedure based. It has nothing to do with outcome. It can only be invoked where, as a result of something that went wrong procedurally, the aggrieved party can be said to not to have had a fair trial. Under the LRA, on the other hand, gross irregularity is now also focused on outcome, albeit that it is still clearly distinguishable from an appeal. ile a complete record of arbitration proceedings within 60 days in terms of clause 11.2.3 of Practice Manual JR874/13 Shaik v Commission for Conciliation, Mediation and Arbitration and Others (JR874/13) [2016] ZALCJHB 239 (8 July 2016) Clause 11.2.3 of the Practice Manual makes it abundantly clear that if the Applicant fails to file the record within the prescribed period of 60 days, the Applicant will be deemed to have withdrawn the application, unless the Applicant has during that period requested the Respondents consent for an extension of time and consent has been granted. The test on review JR2946/2010, J494/13 Industrial Development Corporation of South Africa Limited (IDC) v Roscher and Others (JR2946/2010, J494/13) [2016] ZALCJHB 292 (2 August 2016) Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC) at paras 30-33. [30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd and this court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.[31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependant on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in section 6 of the Promotion of Administrative Justice Act (PAJA); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously etc. The court must nonetheless still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues.[32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted section 145 of the LRA, confining review to defects as defined in section 145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. (My emphasis) The test on review JR178/14 Ramatswi v South African Local Government Bargaining Council and Others (JR178/14) [2016] ZALCJHB 405 (18 October 2016) Palluci Home Depot (Pty) Ltd v Herskowitz & others (2015) 36 ILJ 1511 (LAC) 'Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidence in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc, must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.' Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 101. .Nothing said in Sidumo means that the grounds of review in s 145 of the Act are obliterated. The Constitutional Court said that they are suffused by reasonableness. Nothing said in Sidumo means that the CCMA's arbitration award can no longer be reviewed on the grounds, for example, that the CCMA had no jurisdiction in a matter or any of the other grounds specified in s 145 of the Act. If the CCMA had no jurisdiction in a matter, the question of the reasonableness of its decision would not arise. Also if the CCMA made a decision that exceeds its powers in the sense that it is ultra vires its powers, the reasonableness or otherwise of its decision cannot arise. Baur Research CC v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1528 (LC) at para 18. See also Chabalala v Metal and Engineering Industries Bargaining Council and Others (2014) 35 ILJ 1546 (LC) at para 13. What this means is that where it comes to an arbitrator acting ultra vires his or her powers or committing misconduct that would deprive a party of a fair hearing, the issue of a reasonable outcome is simply not relevant. In such instances, the reviewable defect is found in the actual existence of the statutory prescribed review ground itself and if it exists, the award cannot be sustained, no matter what the outcome may or may not have been. Examples of this are where the arbitrator should have afforded legal representation but did not or where the arbitrator conducted himself or herself during the course of the arbitration in such a manner so as to constitute bias or prevent a party from properly stating its case or depriving a party of a fair hearing. The reason for reasonable outcome not being an issue is that these kinds of defects deprive a party of procedural fairness, which is something different from the concept of process related irregularity. Recusal refused JR2103/12 Premier Foods (Pty) Ltd (Nelspruit) v Commission for Conciliation, Meditation and Arbitration and Others (JR2103/12) [2016] ZALCJHB 426; (2017) 38 ILJ 658 (LC) (8 November 2016) recusal application: the second respondent never came close to deciding the issue of his recusal based on these principles. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.' A review application can still succeed without a review applicant having to show that the outcome arrived at by the arbitrator is unreasonable, where the review grounds are founded on the text of Section 145(2)(a) itself.[3]For example, if an arbitrator commits misconduct in the course of conducting the arbitration, it does not matter whether the outcome arrived at is reasonable, as the misconduct itself vitiates the proceedings, resulting in the award being set aside. Sasol Infrachem v Sefafe and Others (2015) 36 ILJ 655 (LAC) at para 54. To summarise, in cases where it was held that the presiding officer ought to have recused himself or herself at the outset, but failed to do so, the entire proceedings before the arbitrator or presiding officer are a nullity. jurisdictional ruling JR693/15 Minister of Justice and Correctional Services and Another v Naude and Others (JR693/15) [2016] ZALCJHB 478 (2 December 2016) Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 101. .Nothing said in Sidumo means that the CCMAs arbitration award can no longer be reviewed on the grounds, for example, that the CCMA had no jurisdiction in a matter or any of the other grounds specified in section 145 of the Act. If the CCMA had no jurisdiction in a matter, the question of the reasonableness of its decision would not arise. (emphasis added) .in a case such as the present, where a gross irregularity in the proceedings is alleged, the enquiry is not confined to whether the arbitrator misconceived the nature of the proceedings, but extends to whether the result was unreasonable, or put another way, whether the decision that the arbitrator arrived at is one that falls in a band of decisions a reasonable decision maker could come to on the available material [28]In short, the reasonableness test envisages a determination, based on all the evidence and issues before the arbitrator, as to whether there is a failure or error in the arbitrators award, and if so, whether the outcome the arbitrator arrived at can nonetheless be sustained as a reasonable outcome, even if it may be for different reasons or on different grounds... In the end, it would only be if the outcome arrived at by the arbitrator cannot be sustained on any grounds, based on that material, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed. In Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC) at para 12. .the reviewing court must consider the totality of evidence with a view to determining whether the result is capable of justification. Unless the evidence viewed as a whole causes the result to be unreasonable, errors of fact and the like are of no consequence and do not serve as a basis for a review. Review tests simplified JR693/15 Minister of Justice and Correctional Services and Another v Naude and Others (JR693/15) [2016] ZALCJHB 478 (2 December 2016) (firstly) that there exists a failure or error on the part of the arbitrator in making the award...(Secondly) that the review applicant must then show that the outcome arrived at was also unreasonable (Then) if the outcome arrived at is nonetheless reasonable, despite the error or failure, that is equally the end of the review application... In short, for a review application to succeed, the error of failure must affect the reasonableness of the outcome, rendering it unreasonable. Herholdt v Nedbank Ltd and Another (2013) 34 ILJ 2795 (SCA) at para 25. . 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 consequence if their effect is to render the outcome unreasonable. Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC) at para 14. The Gold Fields judgment was followed by the LAC itself in Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC) at para 59; Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate (2015) 36 ILJ 968 (LAC) at paras 15 17; National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 2038 (LAC) at para 16. absence of a proper record JR761/2014 Department of Agriculture v Peach and Others (JR761/2014) [2016] ZALCJHB 499 (13 December 2016) Baloyi v MEC for Health and Social Development, Limpopo (2016) 37 ILJ 549 (CC); 2016 (4) BCLR 443 (CC); [2016] 4 BLLR 319 (CC). [15] The LAC in Francis Baard did not refer to the recent Constitutional Court authority in Baloyi v MEC for Health and Social Development, Limpopo. The apex court held that, in the absence of a proper record, the Labour Court ought at least to have remitted the matter for rehearing. commissioner failed to accord full and unbiased attention to the entire evidence before him JR610/2015 Bold Moves 1991 v Mdluli and Others (JR610/2015) [2017] ZALCJHB 238 (20 April 2017) [35] In my view, the commissioner failed to give complete and impartial attention to the totality of the evidence before him prior to drawing his conclusion which is not supported by the evidence led as reflected in the record. Lukhanji Municipality v Nonxuba NO and Others[2007] 2 BLLR 130 (LC) at par 27 referred to Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; their reliability; and (c) the probabilities. As to (a), the courts finding on the credibility of a particular witness will depend on its 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 candour and demeanour in the witness box.(ii) his bias, latent and blatant.(iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to(c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a courts credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be latter. But when all factors are equipoised probabilities prevail. commissioner: involvement JR906/13 Cash Paymaster Services (Proprietary) Limited v Hlatswako N.O. and Others (JR906/13) [2017] ZALCJHB 217 (6 June 2017) Vodacom Service Provider (Pty) Ltd v Phala 2007 28 IJL 1335 LC 13 A commissioner has a discretion about how the arbitration should be conducted. A commissioner may decide to adopt an adversarial approach or an inquisitorial approach. In an inquisitorial approach the commissioner is in control of the process. The commissioner plays a more active role in the hearing, calling witnesses and interrogating them to ascertain the truth. The commissioner cannot abandon the well-established rules of natural justice and must be careful to guard against creating a suspicion of bias. In this regard see Mutual and Federal Insurance Co Ltd v CCMA and Others [1997] 12 BLLR 1610 (LC) at 1619 20 and County Fair Foods (Pty) Ltd v Theron NO and Others (2000) 21 ILJ 2649 (LC).... 15 A commissioner is required to conduct the proceedings in a fair, consistent and even handed manner. A commissioner cannot assist or be seen to assist, one party to the detriment of the other. A commissioner cannot put to witnesses his propositions, should not interrupt the witnesses answers, challenge the consistency of a witness with his own evidence, indicate that he doubted the witness’s credibility, or make submissions regarding the construction of evidence. Jurisdiction JR322/15 Rademeyer v Aveng Mining Ltd and Others (JR322/15) [2017] ZALCJHB 257 (28 June 2017) Review concerning issue of jurisdiction. Test of rationality and reasonableness does not apply; award considered de novo on the basis of being right or wrong JR2177/16 Danone Southern Africa (Pty) Ltd and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2177/16) [2017] ZALCJHB 252 (30 June 2017) conduct by commissioner in coming to finding; commissioner mero motu making own enquiries without knowledge of parties; conduct irregular Security J779/2017 Rustenburg Local Municipality v South African Local Government Bargaining Council and Others (J779/2017) [2017] ZALCJHB 261; (2017) 38 ILJ 2596 (LC); [2017] 11 BLLR 1161 (LC) (30 June 2017) test JR1115/15 Kommal and Another v South African Police Service and Others (JR1115/15) [2017] ZALCJHB 450 (5 December 2017) National Union of Metalworkers of SA on behalf of Motloba v Johnson Controls Automotive SA (Pty) Ltd & others (2017) 38 ILJ 1626 (LAC) [38] Following the decision of the Constitutional Court in Sidumo & another v Rustenburg Platinum Mines Ltd & others on the review test this court provided further guidance on the test in a number of its decisions. In Head of Department of Education v Mofokeng & others, this court provided the following useful exposition on the test which needs to be quoted in extenso:[30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) [(2013) 34 ILJ 2795 (SCA)] and this court in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others [(2014) 35 ILJ 943 (LAC)], have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.[31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependent on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in s 6 of the Promotion of Administrative Justice Act (PAJA); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously, etc. The court must nonetheless still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in the light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the enquiry or undertake the enquiry in a misconceived manner. There must be a fair trial of the issues.[32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted s 145 of the LRA, confining review to defects as defined in s 145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her.[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the enquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may I constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. (Emphasis added.) James and Another v Eskom Holdings SOC Ltd and Others (CA8/16) [2017] ZALAC 39; (2017) 38 ILJ 2269 (LAC); [2017] 10 BLLR 979 (LAC) (13 June 2017) refusal by the employer, Director OD to implement a grievance outcome. JR214/2016 City of Johannesburg Metropolitan Municipality v South African Municipal Workers Union obo Matsheka and Others (JR214/2016) [2017] ZALCJHB 469 (14 December 2017) [2] The Second Respondent lacked jurisdiction to adjudicate the dispute. gross irregularity JA5/15 Consol Glass v National Bargaining Council for the Chemical Industries and Others (JA5/15) [2017] ZALAC 12 (3 February 2017) Toyota SA Motors (PTY) LTD v Commission for Conciliation, Mediation & Arbitration and Others (2016) 37 ILJ 313 (CC) at 343-345 paras 95 102. [105]..As the authorities referred to above reveal, a gross irregularity is conduct on the part of an arbitrator or decision maker that prevents one of the parties from having its case fairly heard or that prevents a fair trial of issues. Any decision by the commissioner to prevent Toyota from cross-examining Mr Makhotla on such a crucial aspect of the case would be a gross irregularity justifying the setting aside of the commissioner's award. held that the jurisdiction of the CCMA should be established by employees pleaded case at the CCMA CA8/16 James and Another v Eskom Holdings SOC Ltd and Others (CA8/16) [2017] ZALAC 39; (2017) 38 ILJ 2269 (LAC); [2017] 10 BLLR 979 (LAC) (13 June 2017) Jurisdiction of the CCMA employees dismissed for contravening employers disciplinary code- stole watermelons belonging to a client CCMA dismissing employees unfair dismissal claim employees on review challenging the award on the validity of their dismissal employees now challenging the validity and lawfulness of the general managers decision to overturn the chairperson of the disciplinary initial sanction- employees contending that such decision contrary to the collective agreement held that the jurisdiction of the CCMA should be established by employees pleaded case at the CCMA - that the information on the referral form reveals that the employees referred a substantively and procedurally unfair dismissal dispute to the CCMA, thereby clothing the CCMA with jurisdiction. Court deems it unnecessary to deal with the validity and lawfulness allegation as the Constitutional Court in Edcon has not overruled the LACs dictum in the same Case Appeal dismissed and Labour Courts judgment upheld. review vs rescission JA83/2016 Bloem Water Board v Nthako NO and Others (JA83/2016) [2017] ZALAC 42; (2017) 38 ILJ 2470 (LAC); [2017] 11 BLLR 1073 (LAC) (28 June 2017) The arbitrator arrived late for the hearing. The employer who had been in attendance had already left. The arbitrator concluded that the employer was obliged to attend for the whole day and that the employer had abandoned the arbitration and proceeded to hear evidence and issued an award. The employer did not seek to rescind the award in terms of section 144 of the LRA but instead launched an application to review the alleged misconduct of the arbitrator. Held on appeal that the although internal remedies should be exhausted and piecemeal reviews are to be avoided, the Labour Court may intervene in medias res where the interests of justice require it although this power is to be used sparingly and only in exceptional circumstances. As the interest of justice required it and exceptional circumstances were present the appeal was upheld. Collet v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1948 (LAC). [48] The reasonableness or unreasonableness of a delay is entirely dependent on the facts and circumstances of any particular case (see eg Setsokosane at 86G). The investigation into the reasonableness of the delay has nothing to do with the Courts discretion. It is an investigation into the facts of the matter in order to determine whether, in all the circumstances of that case, the delay was reasonable. Though this question does imply a value judgment it is not to be equated with the judicial discretion involved in the next question, if it arises, namely, whether a delay which has been found to be unreasonable, should be condoned (see Setsokosane at 86EF). Wolgroeiers case and Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en n ander 1986 (2) SA 57 (A) application of the rule requires consideration of two questions:(a) Was there an unreasonable delay?(b) If so, should the delay in all the circumstances be condoned? [22] The result is that the commissioner was not justified in her finding that the rescission application was delivered late and she should have rescinded the award. It therefore follows that there are prospects of success as regards the appeal and the applications for condonation should be granted and the appeal reinstated and upheld. Condonation period: application be brought in terms of section 158(1)(h) of the LRA. JA86/2016 G4S Secure Solutions (SA) (Pty) Ltd v Gunqubele N.O. and Others (JA86/2016) [2017] ZALAC 52; [2017] 12 BLLR 1181 (LAC); (2018) 39 ILJ 131 (LAC) (5 September 2017) [22] The result is that the commissioner was not justified in her finding that the rescission application was delivered late and she should have rescinded the award. It therefore follows that there are prospects of success as regards the appeal and the applications for condonation should be granted and the appeal reinstated and upheld. Weder v MEC for Health, Western Cape [2013] 1 BLLR 94 (LC); (2013) 34 ILJ 1315 (LC). that although an application should be brought within a reasonable time, an applicant should apply for condonation if the application was made after six weeks. What, then, is a reasonable time in the context of s 158 of the LRA? It is tempting simply to assume that it should be six weeks, by analogy to the time period provided for in s 145. At the most, it cannot be more than the 180 days provided for in PAJA; in fact, given that PAJA does not apply and that the process is closely aligned to that set out in s 145 and rule 7A, I would suggest that anything more than six weeks should at least trigger an application for condonation. Associated Institutions Pension Fund v Van Zyl 2005 (2) SA 302 (SCA). applicable legal principles JR2246/14 Fidelity Security Services (Pty) Ltd v SATAWU obo Richard and Others (JR2246/14) [2018] ZALCJHB 59 (1 February 2018) Herholdt v Nedbank Ltd [2013] 11 BLLR 1074 (SCA) This court is entitled to interfere with an award made by a commissioner if and only if the commissioner misconceived the nature of the enquiry (and thus denied the parties a fair hearing) or committed a reviewable irregularity which had the consequence of an unreasonable result. The failure by an arbitrator to attach particular weight to evidence or attachment of weight to the relevant evidence and the like is not in itself a basis for review; the resultant decision must fall outside of a band of decisions to which reasonable decision-makers could come on the same material. In other words, the test is two-staged. First, the applicant must establish a misconception of the nature of the enquiry or some misconduct or misdirection on the part of the arbitrator. If that is established, whether a decision is unreasonable in its result ultimately requires this court to consider whether apart from the flawed reasons of or any irregularity by the arbitrator, the result could still be reasonably reached in the light of the issues and the evidence. Gold Fields Mining SA (Pty) Ltd v CCMA [2007] ZALC 66; [2014] 1 BLLR 20 (LAC) a review court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each factor and then determine whether a failure by the arbitrator to deal with one or more factors amounted to a process-related irregularity sufficient to set aside the award. The court cautioned against adopting a piecemeal approach since a review court must necessarily consider the totality of the available evidence (at paragraph 18 of the judgement). Specifically, the questions for a review court to ask is whether the arbitrator gave the parties a full opportunity to have their say in respect of the dispute, whether the arbitrator identified the issue in dispute that she was required to arbitrate, whether the arbitrator understood the nature of the dispute, whether he or she dealt with a substantial merits of the dispute and whether the decision is one that another decision-maker could reasonably have arrived at based on the evidence (see paragraph 20). So, when arbitrator fails to have regard to the material facts it is likely that he or she will arrive at a decision that is unreasonable. Similarly, where an arbitrator fails to follow proper process he or she will arrive at an unreasonable outcome. But, as the court emphasised, this is to be considered on a totality of the evidence and not on a fragmented, piecemeal analysis (at paragraph 21). the determination, by a court of review, of whether to remit the matter to the CCMA for reconsideration JR2246/14 Fidelity Security Services (Pty) Ltd v SATAWU obo Richard and Others (JR2246/14) [2018] ZALCJHB 59 (1 February 2018) Palluci Home Depot (Pty) Ltd Heskowitz and others [2015] 5 BLLR 484 (LAC) Where all the facts required to make a determination on the disputed issues before a reviewing court in an unfair dismissal or unfair labour practice dispute such that the court is in as good a position as the administrative tribunal to make the determination, see no reason why a reviewing court should not decide the matter itself. Such an approach is consistent with the paths of the Labour Court under s 158 of the LRA, which primarily directed at remedying a wrong, and providing effective and speedy resolution of disputes. The need for bringing a speedy finality to labour dispute is thus an important consideration in the determination, by a court of review, of whether to remit the matter to the CCMA for reconsideration, or substitute its own decision for that of the commissioner. that once the Commissioner misconstrues the nature of the enquiry before him/her, the result will invariably be unreasonable. test JR2235/13 Harmony Gold Mining Company Limited v Lefosa and Others (JR2235/13) [2017] ZALCJHB 56 (7 February 2017) [27]I am of the view that in this matter, the fact that the Commissioner misconstrued the nature of the enquiry before him, in fact resulted in an unreasonable finding. Head of the Department of Education v Mofokeng and Others [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC); [2015] 36 ILJ 2802 (LAC). he relevant facts which the Commissioner ignored constitute material facts. Had the Commissioner considered these facts and the probabilities, he would have come to a different conclusion on the finding of Mr Lefosas guilt and on sanction. As a result, the award is prima facie unreasonable and there is no basis in the evidence to displace the prima facie case of unreasonableness. The Commissioners failure to consider a number of material facts distorted the outcome of the hearing and resulted in an unreasonable and thus reviewable award. African Bank v Magashima & Others (JR2419/12) [2014] ZALCJHB 298 (5 August 2014) unreported case. Comtech (Pty) Ltd v Molony NO and Others (DA12/05) [2007] ZALAC 40 (21 December 2007) Rule 7A(2)(c) of the Labour Court Rules requires an applicant in a review to set out the factual and legal grounds of the review in the founding papers. section158(1)(h) of the LRA J2106/2013 Thaba Chweu Local Municipality v Koma and Others (J2106/2013) [2018] ZALCJHB 103 (13 March 2018) [8]The Labour Court may in terms of section158(1)(h) of the LRA, review any decision taken or any act performed by the state in the capacity as employer on such grounds that are permissible in law. Hendricks v Overstrand Municipality [2014] 12 BLLR 1170 (LAC) at para 29 t was held that a decision taken by the state in its capacity as employer could be reviewed on any grounds permissible in law, if no other remedy is available. The grounds permissible in law were identified as (i) those listed in PAJA, provided the decision constituted an administrative action; (ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or (iii) on the basis of the constitutional principle of legality. [30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) and this court in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others6 have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome. nit picking approach to charges particularly inappropriate given the scale of irregularities involved JR1334/14 Nevehethalu v Commission for Conciliation, Mediation and Arbitration and Others (JR1334/14) [2018] ZALCJHB 109 (13 March 2018) the court is confined to what is raised in the review application itself, except in limited exceptional circumstances such as the existence of a jurisdictional issue neither party had identified Commercial Workers Union of SA v Tao Ying Metal Industries & others (2008) 29 ILJ 2461 (CC) [67] Subject to what is stated in the following paragraph, the role of the reviewing court is limited to deciding issues that are raised in the review proceedings. It may not on its own raise issues which were not raised by the party who seeks to review an arbitral award. There is much to be said for the submission by the workers that it is not for the reviewing court to tell a litigant what it should complain about. In particular, the LRA specifies the grounds upon which arbitral awards may be reviewed. A party who seeks to review an arbitral award is bound by the grounds contained in the review application. A litigant may not on appeal raise a new ground of review. To permit a party to do so may very well undermine the objective of the LRA to have labour disputes resolved as speedily as possible.[68] These principles are, however, subject to one qualification. Where a point of law is apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged, mero motu, to raise the point of law and require the parties to deal therewith. Otherwise, the result would be a decision premised on an incorrect application of the law. That would infringe the principle of legality. Accordingly, the Supreme Court of Appeal was entitled mero motu to raise the issue of the commissioner's jurisdiction and to require argument thereon. However, as will be shown below, on a proper analysis of the record, the arbitration proceedings in fact did not reach the stage where the question of jurisdiction came into play. Head of Department of Education v Mofokeng & Others(2015) 36 ILJ 2802 (LAC) in adopting an overly technical approach in interpreting the allegations of misconduct JR1091/2011 Xstrata South Africa (Proprietary) Limited - Thorncliffe Mine v NUM obo Mphofelo and Others (JR1091/2011) [2018] ZALCJHB 148 (11 April 2018) It is whether the commissioner misconceived the enquiry he or she had to conduct or reached an unreasonable decision. The commissioner was enjoined by section 138 (1) of the Labour Relations Act[1] (the LRA) to conduct the arbitration fairly and to deal with the substantial merits of the dispute with minimum legal formalities. The applicant correctly relied on the authorities which provide that before taking the decision to dismiss an employee, an employer is required to afford an employee an opportunity to state a case. JR243/16 Mohlala v MEIBC and Others (JR243/16) [2018] ZALCJHB 161 (24 April 2018) Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 943 (LAC) at para 20 (1) In terms of his or her duty to deal with the dispute with the minimum of legal formalities, did the process used by the commissioner give the parties a full opportunity to have their say?(2) Did the commissioner identify the dispute he or she was required to arbitrate?(3) Did the commissioner understand the nature of the dispute he or she was required to arbitrate?(4) Did the commissioner deal with the substantial merits of the dispute?(5) Is the commissioners decision one that another decision maker could reasonably have arrived at based on the totality of the evidence? Even if the court might have taken a different view of the evidence that is not enough to overturn the arbitration award. Principles JR2578/14 WBHO Civil Construction (Pty) Ltd v Hlatshwayo N.O. and Others (JR2578/14) [2018] ZALCJHB 176 (10 May 2018) [43] As to when a decision will be unreasonable, it will only be so if it is one that a reasonable decision-maker could not arrive at.[7] It must thus fall outside of a notional range of reasonable decisions that could be reached on a given set of facts.[8] It will fall outside this range if the decision is not capable of justification[9] (i.e. justifiable) or, put differently, cannot plausibly be reached on the material evidence.[10] This will be the case if the award is entirely disconnected with the evidence or is unsupported by any evidence and involves speculation by the commissioner.[11] It follows from this that [a commissioners] award will be reasonable when there is a material connection between the evidence and the result, or, put differently, when the result is supported by some [material] evidence.[12] In short, a wrong award is not, in itself, reviewable; to be so, it must be so wrong (obviously wrong[13]) as to be unreasonable. The result of this is that there will be many awards where this court differs with the decision of the commissioner awards that might rightly be described as unsatisfactory or poor but where the result is, nevertheless, not unreasonable, and the award thus not reviewable.[14] [7] Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) at para 110.[8] Sidumo at paras 109 and 119.[9] Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer & others (2015) 36 ILJ 1453 (LAC) at para 12.[10] Hillside Aluminium Ltd v Kuppusami and Others [2014] ZALCD 62 at para 15.[11] Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA) at para 13.[12] Anglo Platinum at para 11.[13] Goodyear SA (Pty) Ltd v CCMA & others (2004) 1 BLLR 7 (LAC) at para 6.[14] Shoprite Checkers (Pty) Ltd v Ramdaw NO & others (2001) 22 ILJ 1603 (LAC) at para 101. In these circumstances, a reasonable commissioner would, in my view, have found that the individual respondents were guilty of having intimidated sub-contractors outside the entrance gate. Although the misconduct of the individual respondents was serious, there are material mitigating factors in their favour. To begin with, as reasonably (not necessarily correctly) found by the commissioner: (i) it was inappropriate for the shift cancelling instruction to have been issued to the shop steward and it was bound to miscarry; (ii) the rationale for the instruction was without merit and the decision to cancel the shift was mala fide; and (iii) confusion reigned supreme on the Saturday. Each of these factors is compelling. Sidumo not only ground: in determining jurisdiction to arbitrate an alleged unfair dismissal dispute JR1679/16 Cronos Airlines International (Pty) Ltd v Ngwenya NO and Others (JR1679/16) [2018] ZALCJHB 212 (30 May 2018) Kukard v GKD Delkor (Pty) Ltd [2015] 1 BLLR 63 (LAC). I now turn to question of whether the CCMA had jurisdiction to deal with this dispute. Since the jurisdiction of the CCMA is intrinsic to the purported dismissal of the appellant as defined in s186 of the LRA, this Court must first determine whether, on an objective assessment of the evidence, the Labour Court was correct in setting aside the Commissioners finding that the appellant was dismissed by Delkor within the meaning of s186(1)(a) of the LRA. In determining whether the CCMA has jurisdiction to deal with a dispute, the Labour Court is not limited to the Sidumo (reasonableness) test of review, but may determine the issue de novo. the employees unfair dismissal referral to arbitration, under case number GAEK9450/15 is dismissed. Constructive dismissal JA76/2016 Solidarity obo Van Tonder v Armanents Corporation of South Africa (SOC) Limited and Others (JA76/2016) [2019] ZALAC 55; [2019] 8 BLLR 782 (LAC); (2019) 40 ILJ 1539 (LAC) (8 March 2019) Western Cape Education Department v General Public Service Sectoral Bargaining Council and Others [2014] 10 BLLR 987 LAC at para 19 read with para 35 (and in SA Rugby Players' Association and Others v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v Sarpu and Another [2008] ZALAC 3; [2008] 9 BLLR 845 LAC at para 41). An applicant seeking review of a finding of constructive dismissal must show that the decision was objectively wrong. The review standard is correctness not reasonableness - as the issue is one going to jurisdiction. Albany Bakeries Limited v Van Wyk and Others security for costs JA120/2017 City of Johannesburg v SAMWU obo Monareng and Another (JA120/2017) [2019] ZALAC 54; (2019) 40 ILJ 1753 (LAC) (20 March 2019) Rustenburg Local Municipality v South African Local Government Bargaining Council and Others (2017) 38 ILJ 2596 (LC) what good cause entails: Good cause in the context of motivating a departure from the security provisions prescribed in s145(7) and (8) would involve a proper explanation why this request should be entertained, with particular emphasis on any material prejudice the applicant may suffer if it is not granted this relief. I will illustrate the point by way of an example. A small manufacturing business with 20 employees dismisses 10 employees for group misconduct. A CCMA commissioner then reinstates all these employees. The required security would be 24 months’ salary for each of these ten employees, which would then wipe out the entire operating cash flow of the undertaking for several months. This is the kind of prejudice I am referring to. Simply described, the explanation cannot be that it will be hard to set security, but the explanation must be that it would be unduly onerous and harmful to be required to set the prescribed security. Court emphasised the importance of an employee exhausting reasonable alternatives to resignation. It stated: How will an employee ever prove that [the employment had been made intolerable] if he has not adopted other suitable remedies available to him? It is, firstly, also desirable that any solution falling short of resignation be attempted as it preserves the working relationship, which is clearly what both parties presumably desire. Secondly, from the very concept of intolerability one must conclude that it does not exist if there is a practical or legal solution to the allegedly oppressive conduct. Finally, it might well smack of opportunism for an employee to leave when he alleges that life is intolerable but there is a perfectly legitimate avenue open to alleviate his distress and solve his problem. List of probable grounds for review application CA3/2018 Khan v Commission for Conciliation Mediation and Arbitration and Others (CA3/2018) [2019] ZALAC 47 (3 May 2019) Masuku v Score Supermarket (Pty) Ltd (2013) 34 ILJ 147 (LC) at para 10; Seardel Group Trading t/a Romatex Home Textiles v Petersen [2011] 2 BLLR 211 (LC) at para 13. a party seeking to review or appeal the exercise of such a discretion required to show that the decision-maker acted capriciously, or upon a wrong principle, or in a biased manner, or for unsubstantiated reasons, or committed a misdirection or an irregularity, or failed to exercise its discretion, or exercised its discretion improperly or unfairly section 14(2) of the Employment of Educators Act CA10/2018 Member of the Executive Council for the Department of Education Western Cape Government v Jethro N.O and Another (CA10/2018) [2019] ZALAC 38; [2019] 10 BLLR 1110 (LAC); (2019) 40 ILJ 2318 (LAC) (13 June 2019) [49]... The Labour Court accordingly did not err in setting aside the impugned decision on the grounds contemplated in sections 6(2)(e)(v) and (vi) of PAJA. [43] The remaining question is whether the appellants decision that there was no good cause for reinstatement is reviewable. Various factors are relevant in determining whether good cause exists for reinstatement under section 14(2) of the EEA. In the interests of flexibility, it is inadvisable for courts to define the requirements of good cause too categorically. There is no numerus clausus of factors. Much will depend on the facts and circumstances of the case. Relevant considerations include: i) the reasons for the absence; ii) the duration of the absence; iii) the conduct of the educator prior and subsequent to his or her deemed discharge; iv) the impact of the absence on the employer; v) the whereabouts of the educator during the period of absence; vi) the practicality and tolerability of a continued employment relationship; and vii) the availability of alternative processes and solutions to the problem that led to the educators absence. MEC for the Department of Health, Western Cape v Weder (2014) 35 ILJ 2131 (LAC) (Weder). MEC for the Department of Health, Western Cape v Weder (2014) 35 ILJ 2131 (LAC) (Weder). court held that it did not suffice for the employer to simply say without more, that the absence of the employee for the requisite period without a subsequent satisfactory explanation rendered the employment relationship intolerable. that is challenged is a discretion such as the one exercised in terms of s 194(1) the test JA41/2018 Bester (Scott) In re: Small Enterprise Finance Agency SOC Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA41/2018) [2019] ZALAC 73; [2020] 3 BLLR 244 (LAC); (2020) 41 ILJ 877 (LAC) (11 December 2019) Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC) at para 55. the test that the court, called upon to interfere with the discretion, will apply is to evaluate whether the decision-maker acted capriciously, or upon the wrong principle, or with bias, or whether or not the discretion exercised was based on substantial reasons or whether the decision-maker adopted incorrect approach. errors JR1909/15 BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa (NUMSA) and Others (JR1909/15) [2018] ZALCJHB 217 (3 July 2018) Head of Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC) at 2813 [33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator's conception of the enquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. evidence that had not served before the Commissioner JR326/16 Jonker v Commission for Conciliation, Mediation and Arbitration and Others (JR326/16) [2018] ZALCJHB 247 (10 July 2018) Xorile v CCMA [2014] ZALCJHB 512 (8 December 2014), it is not permissible to introduce in the review proceedings evidence that had not served before the Commissioner hearing the arbitration. Such additional evidence was accordingly disregarded in the assessment of the review application. no other remedy J 2497-18 Mpele v Municipality Council of the Lesedi Local Municipality and Others (J 2497-18) [2018] ZALCJHB 383; [2018] 12 BLLR 1192 (LC); (2019) 40 ILJ 572 (LC) (13 August 2018) [40] The Labour Appeal Court in Hendricks[7] found that public sector employees aggrieved by dismissal or unfair labour practices should ordinarily pursue the remedies available in sections 191 and 193 of the LRA, as mandated and circumscribed by s 23 of the Constitution Surveying the broad ambit of case law from Chirwa[8] through to Gcaba[9], the LAC found that challenges to the legality of decisions taken by the state in its capacity as employer could be reviewed on any grounds permissible in law, if no other remedy is available. no portion of record JR1992/2010 Nkosi v Cachalia NO and Others (JR1992/2010) [2018] ZALCJHB 293 (25 September 2018) JDG Trading (Pty) Ltd t/a Russells v Whitcher [2005] ZALC 1; [2001] 3 BLLR 300 (LAC) 41 At 303 pars 1113 Labour Appeal Court held that the Labour Court should not have considered the review application before it because it had only been provided with the commissioners handwritten notes and an untranscribed tape recording. In the absence of the transcribed record, Goldstein AJA held, the court a quo was in no position to adjudicate properly on the application before it and ought accordingly to have dismissed it arbitrator ignoring material facts JR 1620/15 Moeketsi v Transnet Bargaining Council (JR 1620/15) [2018] ZALCJHB 398 (5 December 2018) Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC) at paras 30 - 33; Subsequent to Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curia) [2013] 11 BLLR 1074 (SCA) and 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 award will be reviewable if the distorting effect of this misdirection was to render the result of the award unreasonable. However, the arbitrator must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. Court not must consider the totality of the evidence and then decide JR2333/2015 Belo & Kies Construction (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2333/2015) [2019] ZALCJHB 2 (9 January 2019) [44] The review Court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with such is sufficient to set the award aside. This piecemeal approach of dealing with the award is improper as the reviewing court must consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision maker could make, based on the evidence presented[3]. Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA (2014) 35 ILJ 943 (LAC) at paras 18 and 19. [30] The failure by an arbitrator to apply his or her mind to issue which are material to the determination of a case will usually be an irregularity. However, the [SCA] in Herholdt and this court in Gold Fields have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in the setting aside of the award. It must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome[31] Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues. (Emphasis added) based on jurisdictional error JR616/15 Mathopo,Moshimane and Mulangaphuma T/A DM5 INC v Commission for Conciliation, Mediation and Arbitration and Others (JR616/15) [2019] ZALCJHB 21 (5 February 2019) SA Rugby Players Association v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v SARPU [2008] ZALAC 3; [2008] 9 BLLR 845 (LAC) at para 41. The issue was simply whether, objectively speaking, the facts which would give the CCMA jurisdiction to entertain the dispute existed. If such facts did not exist, the CCMA had no jurisdiction irrespective of its finding to the contrary. outcome: court not referring matter to authority for reconsideration JR1969-18 Putco (Pty) Ltd v SA Road Passenger Bargaining Council and Others (JR1969-18) [2019] ZALCJHB 137; (2019) 40 ILJ 2389 (LC) (11 April 2019) Palluci Home Depot (Pty) Ltd v Heskowitz and others [2015] 5 BLLR 484 (LAC) Review J1048/19 State Information Technology Agency Soc Ltd (SITA) v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (J1048/19) [2019] ZALCJHB 287; [2019] 9 BLLR 962 (LC); (2019) 40 ILJ 2850 (LC) (2 May 2019) Uncomplete Arbitration- Review - where defect so patent that it would not lead to a fair hearing. [36]... the Labour Appeal Court held that where all the facts required to make a determination of the disputed issues are before the reviewing court so that the court is in as good a position as the administrative tribunal to make the determination, the court should decide the matter itself. That approach, the court noted, was consistent with the powers of this court under s 158 of the LRA which are primarily directed at remedying a wrong, and providing the effective and speedy resolution of disputes. Expedited finality is thus an important consideration in the determination of whether to remit the matter for reconsideration, or to substitute. the public sector is reviewable on grounds listed in PAJA JR548/2018 Emalahleni Local Municipality v Sibanyoni N.O and Another (JR548/2018) [2019] ZALCJHB 111 (17 May 2019) [32] The LAC thus confirmed that a determination by a presiding officer in the public sector is reviewable on grounds listed in PAJA, common law and the principle of legality. Hoexter C Administrative Law in South Africa, 2nd edition, 340. Rationality was defined by Hoexter[3] as follows:[t]his means in essence that a decision must be supported by the evidence and information before the administrator as well as the reasons given for it. It must also be objectively capable of furthering the purpose for which the power was given and for which the decision was purportedly taken. Hendricks v Overstrand Municipality and Another [2014] 12 BLLR 1170 (LAC), (2015) 36 ILJ 163 (LAC) at para 29. In sum therefore, the Labour Court has the power under section 158(1)(h) to review the decision taken by a presiding officer of a disciplinary hearing on i) the grounds listed in PAJA, provided the decision constitutes administrative action; ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or iii) in accordance with the requirements of the constitutional principle of legality, such being grounds permissible in law. Refused to allow them an opportunity to lead evidence JR725/17 Medi Logistics (Pty) Ltd v Ntsoane N.O and Others (JR725/17) [2019] ZALCJHB 107 (22 May 2019) Dimbaza Foundries Ltd vs CCMA and Others (1999) 20 ILJ 1163 (LC). This constituted an error in the conduct of proceedings by the arbitrator. Clearly the applicant had not anticipated that the De-Wet would change tact at the CCMA. No prejudice would have been suffered by De-Wet in standing the matter down for an hour to allow the witness to come and testify. For the arbitrator to refuse a party an opportunity to deal with something crucial and proceed to find against that party on the aspect he refused to allow them an opportunity to lead evidence, constitutes a reviewable irregularity.[2] test expanded JR2783/18 Idwala Industrial Holdings v Commissioner Pieterson N.O and Others (JR2783/18) [2019] ZALCJHB 176 (19 July 2019) Following the Herholdt and Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others[4] judgments, the Labour Appeal Court handed down the judgment of Head of Department of Education v Mofokeng and Others Head of Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC). "[32] Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors .etc. must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her. [17] The dictum in Mofokeng highlights many important things about the review test. The dictum provides for the following analysis:17.1 The first enquiry is whether the facts ignored were material, which will be the case if a consideration of them would (on the probabilities) have caused the commissioner to come to a different result;17.2 if this is established, the (objectively wrong) result arrived at by the commissioner is prima facie unreasonable;17.3 a second enquiry must then be embarked upon it being whether there exists a basis in the evidence overall to displace the prima facie case of unreasonableness; and17.4 if the answer to this enquiry is in the negative, then the award stands to be set aside on review on the grounds of unreasonableness (and vice versa). Credibility finding JR2803/16 NUMSA obo Mathonsi v SCAW Metals (Pty) Ltd and Others (JR2803/16) [2019] ZALCJHB 201; (2020) 41 ILJ 254 (LC) (20 August 2019) National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others at para 31. The issue of the importance of credibility findings made by the commissioner being accepted in this court on review was made by Mr Snider, who represented the third respondent. He submitted that it was the commissioner who sat in the arbitration proceedings, looked at the witnesses, listened to them, and assessed their credibility, and on review, this court should not readily interfere with this, as the commissioner was in the best position to make these findings. I agree with these submissions. This court should not readily interfere with credibility findings made by CCMA commissioners, and should do so only if the evidence on the record before the court shows that the credibility findings of the commissioner are entirely at odds with or completely out of kilter with the probabilities and all the evidence actually on the record and considered as a whole. Findings by a commissioner relating to demeanour and candour of witnesses, and how they came across when giving evidence, would normally be entirely unassailable, as this court is simply not in a position to contradict such findings. Even if I do look into the issue of the credibility findings of the second respondent in this case, I am of the view that the record of evidence in this case, if considered as a whole simply provides no basis for interfering with the credibility findings of the second respondent. There is simply nothing out of kilter between the evidence by the witnesses on record and the credibility findings the second respondent came to. The evidence on record in my view actually supports the second respondent's credibility findings. The credibility findings of the second respondent therefore must be sustained. Commissioner cross-examine witness Vodacom Service Provider Co (Pty) Ltd v Phala No & others (2007) 28 ILJ 1335 (LC) court reviewed and set aside an arbitration award in circumstances where the court held that amongst other things, that the commissioner concerned had questioned a party’s witnesses in a way that amounted to cross-examination and thus overstepped the boundaries of fair procedure in the conduct of arbitration proceedings. The court went on to note that a commissioner has a discretion about how an arbitration should be conducted and that the commissioner may decide to adopt an adversarial or an inquisitorial approach but that irrespective of the approach adopted, the commissioner is required to conduct arbitration proceedings in a fair, consistent and even-handed manner. At paragraph 15 of the judgment, the court said the following: A commissioner cannot assist or be seen to assist, one party to the detriment of the other. A commissioner cannot put to witnesses his propositions, should not interrupt the witness’s answers, challenge the consistency of a witness with his own evidence, indicated that he doubted the witness’s credibility, or make submissions regarding the construction of evidence. Mere errors of fact or law may not be enough to vitiate the award JR1190/16 Ramabulana v CCMA and Others (JR1190/16) [2019] ZALCJHB 232 (3 September 2019) Head of Department of Education v Mofokeng & others [2015] 1 BLLR 50 (LAC) [30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd and this court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome[32] Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc. must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, if an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. PAJA CA 5/2019 Minister of Justice and Correctional Services and Others v Ramaila and Others (CA 5/2019) [2020] ZALAC 41 (9 November 2020) [44] Against the background sketched, a collective agreement, regulating conditions of service of employees falling within its coverage, although adversely affecting Mr Ramaila, is purely contractual in nature and has no external legal effect outside the bargaining council. Therefore, it does not constitute an administrative action reviewable under PAJA. [51]...As I see it, although s 5 changes the complexation of a collective agreement into a ministerial determination neither the deeming provision nor the Minister of DPSAs directive would mutate the contractual nature of a collective agreement, which regulates purely employees conditions of service, into administrative action. To hold otherwise would be a bridge too far. Not much needs to be said about the administrative nature of the Performance Management Policy. It remains purely an employment and labour relationship issue which does not fall within the ambit of administrative action. Clauses 6 of the Incentive Policy Framework and the Performance Management Policy are not administrative action within the meaning of PAJA and therefore not reviewable under s 6 of PAJA. section 158 (1) (h) is a legality review J1652/19 South African Broadcasting Corporation (Soc) Ltd v Keevy and Others (J1652/19) [2020] ZALCJHB 31; [2020] 6 BLLR 607 (LC) (7 February 2020) Ramonetha v Department of Transport Limpopo and others [2018] 1 BLLR 16 (LAC) [40] What we glean from this is that the exercise of public power which is at variance with principle of legality is inconsistent with the Constitution itself. In short, it is invalid Relating all this to the matter before us, the award of the DoD agreement was exercise of public power. The principle of legality may thus be a vehicle for its review. The question is: did the award conform to legal prescripts? If it did, that is the end of the matter. If it did not, it may be reviewed and possibly set aside under legality review.[19] [28] The net effect of Motau and other related judgments is that every decision must be one that falls within the confines of the law. It has now been authoritatively held that there is no longer a common law review. It is either a constitutional review - popularly known as legality/rationality review or a review under the Promotion of Administrative Justice Act[24] (PAJA) for administrative decisions. Since this is a review of own decision, it has been held that the only applicable review is that of legality/rationality. if errors material to the determination of the dispute constitute a misconception of the nature of the enquiry which consequently affect the fair trial of the issues, an award may be set aside on that ground alone. JR2099/16 Anglogold Ashanti Limited v Association of Mineworkers and Construction Union obo Dlungane and Others (JR2099/16) [2020] ZALCJHB 46 (20 February 2020) Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC) at paras 30-33; see also Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others [2007] ZALC 66; [2014] 1 BLLR 20 (LAC). Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curiae) [2013] 11 BLLR 1074 (SCA). [30] The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd and this court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome[32] Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc. must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, if an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. (Emphasis added) Two stage approach JR2236/16 South African Police Service v Sotheni and Others (JR2236/16) [2020] ZALCJHB 57 (4 March 2020) [22] What this means is a two stage review enquiry. Firstly, the review applicant must establish that there exists a failure or error on the part of the arbitrator. If this cannot be shown to exist, that is the end of the matter. Secondly, if this failure or error is shown to exist, the review applicant must then further show that the outcome arrived at by the arbitrator was unreasonable. If the outcome arrived at is nonetheless reasonable, despite the error or failure that is equally the end of the review application. In short, in order for the review to succeed, the error or failure must affect the reasonableness of the outcome to the extent of rendering it unreasonable. [23] Further, the reasonableness consideration envisages a determination, based on all the evidence and issues before the arbitrator, as to whether the outcome the arbitrator arrived at can nonetheless be sustained as a reasonable outcome, even if it may be for different reasons or on different grounds.[Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 102] In the end, it would only be if the outcome arrived at by the arbitrator cannot be sustained on any grounds, based on the material before the arbitrator as a whole, and the irregularity, failure or error concerned is the only basis to sustain the outcome the arbitrator arrived at, that the review application would succeed.[Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC) at para 12.] Clauses 11.2.1 -11.2.3 of the Practice Manual, Clause 16.2 JR 904/17 National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (JR 904/17) [2020] ZALCJHB 184 (13 May 2020) [27] The Applicants ought to have filed an application to have the review application reinstated, which they failed to do and instead they sought condonation for the late filing of a record without an application to reinstate the review application. Condonation for the late filing of a record cannot be granted in respect of a review application that is deemed to be withdrawn. [23] There is a distinction to be drawn between the provisions of Clauses 11.2.1 -11.2.3 of the Practice Manual, which provide that a review application is deemed to be withdrawn when the record was filed outside the prescribed period and Clause 16 which provides for the archiving of files.[24] Clause 16 provides that the Registrar will archive a file in the case of a review application when a period of six months has elapsed without any steps been taken by the applicant from the date of filing the application or the date of the last process filed. Clause 16.2 provides that a party whose file had been archived, may submit an application, on affidavit and on notice to all the other parties to the dispute, for the retrieval of the file.[25] In casu, the Applicants file was not archived by the Registrar, but is deemed to be withdrawn by operation of the provisions of the Practice Manual.[26] There is no bar, either in the Rule of this Court or the Practice Manual to the Applicants filing an application to have the review application reinstated in the event it was deemed to be withdrawn. Logic dictates that the review should be reinstated and be alive before the late filing of the record could be condoned. limited scope possessed by this Court to review an arbitration award: reasonableness JR 1626/2017 Shan's Transport and Logistics Agency (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR 1626/2017) [2020] ZALCJHB 84 (25 May 2020) Bestel v Astral Operations Ltd and Others [2011] 2 BLLR 129 (LAC) at para 18. arbitrators finding will be unreasonable [1] if the finding is unsupported by any evidence,[2] if it is based on speculation by the arbitrator,[3] if it is disconnected from the evidence,[4] if it is supported by evidence that is insufficiently reasonable to justify the decision or[5] if it was made in ignorance of evidence that was not contradicted.' [My insertions] .the ultimate principle upon which a review is based is justification for the decision as opposed to it being considered to be correct by the reviewing court; that is whatever this Court might consider to be a better decision is irrelevant to review proceedings as opposed to an appeal. Thus, great care must be taken to ensure that this distinction, however difficult it is to always maintain, is respected. Irregularities or errors in relation to the facts or issues JR 1626/2017 Shan's Transport and Logistics Agency (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR 1626/2017) [2020] ZALCJHB 84 (25 May 2020) Head of the Department of Education v Mofokeng Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. (My emphasis). [46] In my view, the termination letter was a material piece of evidence and it was incumbent upon the arbitrator to have considered it as such. PAJA JR 242/2018 Mashego v Commission for Conciliation, Mediation and Arbitration and Others (JR 242/2018) [2020] ZALCJHB 111 (15 July 2020) Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC). [32] Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the Arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc. must be assessed with the purpose of establishing whether the Arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.[33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the Arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the Arbitrators conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the Arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The Arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. evidence in the absence of it having been put to the opposing party’s witnesses under cross-examination JR2456/17 Consolidated Power Projects (Pty) Ltd v Schoeman and Others (JR2456/17) [2020] ZALCJHB 112 (15 July 2020) Urban Africa Security (Pty) Ltd v CCMA and others[(2012) 33 ILJ 2201 (LC) para 20. Followed in University of Venda v M and others (2017) 38 ILJ 1376 (LC) para 95] that to rely on evidence in the absence of it having been put to the opposing party’s witnesses under cross-examination constitutes a reviewable defect. And yet the Commissioner did so and without providing reasons why Schoeman was a credible witness and why his evidence is more reliable. This conclusion the Commissioner was not entitled to reach without an evaluation of the credibility of all the witnesses before him, and the reliability of their evidence. There is no evidence ex facie the award that he did so and this renders his award reviewable and liable to be set aside. PAJA J 617/2020 National Union of Metal workers of South Africa v Tshwane University of Technology (J 617/2020) [2020] ZALCJHB 216; [2020] 11 BLLR 1141 (LC) (20 July 2020) [30] In Gcaba [Gcaba v Minister for Safety and Security and Others (2009) 30 ILJ 2623 (CC) at para 56] the Constitutional Court in considering the question whether the conduct complained of, was administrative action has held that: Generally, employment and labour relationship issues do not amount to administrative action within the meaning of PAJA. This is recognised by the Constitution. Section 23 regulates the employment relationship between employer and employee and guarantees the right to fair labour practices. The ordinary thrust of section 33 is to deal with the relationship between the state as bureaucracy and citizens and guarantees the right to lawful, reasonable and procedurally fair administrative action. Section 33 does not regulate the relationship between the state as employer and its workers. When a grievance is raised by an employee relating to the conduct of the state as employer and it has few or no direct implications or consequences for other citizens, it does not constitute administrative action._ [34] In my view, the matter does not involve the constitutionality of administrative action as organisational rights are limited to rights between a trade union and an employer. This matter does not fall within the purview of PAJA because no administrative action was taken by an organ of State, but the Respondent simply responded to the Lufil judgment to the extent that a trade union may not admit members when it is precluded to do so in terms of its own constitution. [35] It follows that if the Applicant is by law not entitled to demand organisational rights, it is not entitled to an order reinstating such rights and a recognition agreement wherein those rights were afforded. The retraction of a recognition agreement under those circumstances does not constitute administrative action and this matter does not fall within the purview of PAJA. Absent the operation of PAJA, this dispute concerns the recognition agreement and it has to be resolved in terms of the statutory dispute resolution processes provided for in the LRA.[36] For these reasons the Applicant is not entitled to relief as it cannot rely directly on the Constitution, nor is the termination of a recognition agreement administrative action. In absence of a prima facie right, I need not consider the remaining requirements for interim relief. It follows that this application has to fail. "deemed to have been withdrawn PR193/2019 Zono v Minister of Justice and Correctional Services In re: Minister of Justice and Correctional Services v Zono and Others (PR193/2019) [2020] ZALCJHB 215; [2020] 11 BLLR 1160 (LC) (29 July 2020) [17] An application for reinstatement of a review application deemed to, have been withdrawn is, in essence, an application for condonation. It is incumbent '?n the applicant to show good cause why, in this case, the record of the proceedings under review was not filed within the prescribed time limit. Condonation is not there merely for the asking, nor are applications for condonation a mere formality (see NUMSA v Hillside Aluminium [2005] 6 BLLR' 601 (LC); Derrick Grootboom v National Prosecuting Authority & another [20.14} 1 BLLR (CC)). A party seeking condonation must make out a case for the indulgence sought and bears the onus to satisfy the court that condonation should be granted. Practice Manual, Clause 11.2.3. (sixty days) JR 1215/18 Greater Taung Local Municipality v South African Local Government Bargaining Council and Others (JR 1215/18) [2021] ZALCJHB 16 (17 January 2021) [13] If, for any reasons, the record cannot be uplifted and filed within a prescribed period of sixty days, the applicant party must[12]:13.1 Request consent for the extension of that sixty-day period from the respondent; and13.2 If consent is refused, on notice of motion (as prescribed in Rule 7) supported by an affidavit, apply to the Judge President in chambers for an extension of time;13.3 The Judge President will then allocate the file to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record. [14] If the applicant fails to file a record within the prescribed period of sixty days and has not followed the steps above, the applicant will be deemed to have withdrawn the application, through inordinate delays, and the application will be archived in terms of the provisions of clause 16 of the Practice Manual. The Manual provides further that where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed. The review application in the current matter should be deemed to be in that position presently, viz. as to further conduct by the registrar, withdrawn and archived; and the same consequences as to further conduct by any respondent party as to the matter having been dismissed. The main subject in the last statement lies more in the phrase the same consequences than dismissed. This court has confirmed that an application can only be dismissed through a Court Order, and not a deeming provision in the Practice Manual[13]. clauses 11.2.3 and 16.1 are not a substitute for the provisions of rule 11 of the Rules Minister of Justice and Correctional Service v Mashiya and Others [2017] ZALCJHB 140 (5 May 2017) at paras 23 to 27. [14] If the applicant fails to file a record within the prescribed period of sixty days and has not followed the steps above, the applicant will be deemed to have withdrawn the application, through inordinate delays, and the application will be archived in terms of the provisions of clause 16 of the Practice Manual. The Manual provides further that where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed. The review application in the current matter should be deemed to be in that position presently, viz. as to further conduct by the registrar, withdrawn and archived; and the same consequences as to further conduct by any respondent party as to the matter having been dismissed. The main subject in the last statement lies more in the phrase the same consequences than dismissed. This court has confirmed that an application can only be dismissed through a Court Order, and not a deeming provision in the Practice Manual[13].[15] In that regard, this Court in Minister of Justice and Correctional Service v Mashiya and Others[14] held as follows:[23] the provisions of the Practice Manual, and in particular, clauses 11.2.3 and 16.1 are not a substitute for the provisions of rule 11 of the Rules of this Court. Molahlehi J in his judgment specifically held that the provisions of the Practice Manual were simply a procedural tool to facilitate the management of review applications and did not trump the Rules of this Court.[24] There is a perception amongst practitioners in this Court that the raising of these provisions can lead to an application being dismissed, and this is premised on an incorrect interpretation of the provisions of clause 16.3 of the Practice Manual which provide that: Where a file has been placed in archives, it shall have the consequences as to further conduct by any respondent party as to the matter having been dismissed.[25] These provisions as already indicated above, cannot trump over the Rules of this Court. Thus, it cannot be correct that if a file is archived by way of a directive or as a result of an administrative action by the office of the Registrar, the implications thereof are that the matter is dismissed for all intents and purposes. In most instances, files are archived at the instance of the Registrar of this Court to the extent that there was non-compliance with the Rules of this Court. Where however, there is a directive from a Judge to archive a file, the effect thereof is that the file will remain dormant until such time that an application is launched in terms of the provisions of clause 16.2 to retrieve it. Only upon a consideration of that application can a Judge (normally in chambers) dismiss the application to retrieve the file, which would then have the effect of dismissing the review application. In this case, it was contended on behalf of Mashiya that a directive was sought from the Judge President in terms of the provisions of clause 16 of the Practice Manual, but that the matter was not attended to. It cannot however follow from those unsuccessful attempts be concluded that the review application in this matter is of necessity dismissed.[26] To reiterate, a mere directive or administrative action on the part of the office of the Registrar to have a file archived cannot have the status of a court order. A matter can only be dismissed through a court order. Thus, if a respondent party is of the view that the applicant party in review proceedings is not doing enough to expedite the finalisation of the matter, including even after the pleadings have been closed, the appropriate route would be to approach the court with a rule 11 application to dismiss that review application.[27] The net effect of clauses 11.2.3 and 16.1 of the Practice Manual if invoked is merely to deem applications as withdrawn, which can be reinstated by way of an application for condonation as it had happened in this case, or where a matter is archived in terms of clause 16 of the Practice Manual, it can equally be retrieved upon such an application by the affected party, unless determined otherwise by a Judge in chambers. [16] A party to a dispute in which the file has been archived may therefore submit an application, on affidavit, for the retrieval and reinstatement of the matter, on notice to all other parties to the dispute. The provisions of Rule 7 will apply to an application brought in terms of this provision[15]. Alternatively, that party can duly file an application for condonation, with good cause shown, of the delays occasioned in the filing of the record within the prescribed period.[17] Either way, where there is no consent given by the respondent, the extension of the sixty-day time period for the filing of the record, or the granting of the condonation, following the delays occasioned by any party, including the Commission for Conciliation, Mediation and Arbitration, a bargaining council or the registrar’s office, can only be granted by the judge, either in chambers or in the open court. Prior to that, the application will be deemed as withdrawn and archived. The option availed for the applicant is the seeking of an order dismissing the review application, as in the present case; and for the respondent, seeking the judges directive and extension of time, or condonation[16] for the occasioned delays. South African Municipal Workers Union obo Mlalandle v South African Local Government Bargaining Council and Others [2017] 1 BLLR 99 (LC) To the extent that the defaulting party may contend that it would suffer prejudice on account of any application of clause 11.2.3 of the Practice Manual, or that it would be deprived of its right to access to court and to have its application fully ventilated, the proper order is to strike the review application from the roll. Once a matter has been struck off the roll, nothing prevents a party from filing an application to have the review application reinstated, together with an application in which condonation for the late filing of the record is sought.[18] (My emphasis) This is in line with a normative principle expressed in a Latin maxim cursus curiae est lex curiae, meaning that the established practices of the court are the laws of the court. legality: [26] The Applicant in the Founding and Supplementary Affidavits as well as the Heads of Argument does not rely upon PAJA. I shall therefore proceed to consider this matter under the provisions of the LRA as opposed to PAJA. JR124/18 City of Johannesburg v Jacobs N.O and Others (JR124/18) [2021] ZALCJHB 12 (8 February 2021) Firstly; it is by now settled that section 158(1)(h) of the LRA is available to review the decisions of the state in its capacity as an employer. [18] Furthermore, the Applicant squarely places its reliance on the principle of legality. It is also settled that the principle applicable in section 158(1)(h) is that of legality.[9] As stated by the SCA in NDPP v Freedom under Law,[(2014) 4 SA 298 (SCA) 309B-D; see also MEC for the Department of Health, Western Cape v Weder (2014) 35 ILJ 2131 (LAC) at para 33.] the legality principle has become well established in our law as an alternative pathway to judicial review of exercises of public power where Promotion of Administrative Justice Act[11] (PAJA) finds no application. The principle permits review on grounds of both legality and rationality.[12] [19] Dealing with legality the Court in Hendricks[Hendricks v Overstrand Municipality & another (2014) 12 BLLR 1170 (LAC); (2015) 36 ILJ 163 (LAC) at para 28.] found that:. Legality includes a requirement of rationality. It is a requirement of the rule of law that the exercise of public power by the executive and other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with the rule of law.[20] The Court in Khumalo & another v MEC for Education: KwaZulu-Natal[(2014) 35 ILJ 613 (CC).] also specifically dealt with the meaning of legality, in the context of a review application under section 158(1)(h), and held: The principle of legality is applicable to all exercises of public power and not only to 'administrative action' as defined in PAJA. It requires that all exercises of public power are, at a minimum, lawful and rational. [21] In MEC for the Department of Health, Western Cape v Weder; MEC for the Department of Health, Western Cape v Democratic Nursing Association of SA on behalf of Mangena,[(2014) 35 ILJ 2131 (LAC) at para 33.] the Court held that the principle of legality has developed over the past decade, to the extent that a parallel system of review for action which falls outside of the strict definition of administrative action, has developed. Having so held, the Court then proceeded to set out this development as follows:[] Public functionaries are required to act within the powers granted to them by law. See Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council & others (1999) 1 SA 374 (CC) at para 58,[][22] Furthermore, in the seminal judgment in Pharmaceutical Manufacturers Association of SA & another: In re Ex parte President of the Republic of SA & others, the court laid down the core element of legality as follows:[[2000] ZACC 1; (2000) 2 SA 674 (CC) at para 85.] [23] The Court in Weder[19] then proceeded to consider this component of rationality as part of the legality enquiry, and held: In later judgments the court has developed this concept of rationality requiring the executive or public functionaries to exercise their power for the specific purposes for which they were granted so that they cannot act arbitrarily, for no other purpose or an ulterior motive.[24] Furthermore, in Democratic Alliance v President of the Republic of SA & others,[(2013) 1 SA 248 (CC) at para 39.] the court held: ‘If in the circumstances of a case, there is a failure to take into account relevant material that failure would constitute part of the means to achieve the purpose for which the power was conferred. And if the failure had an impact on the rationality of the entire process, then the final decision may be rendered irrational and invalid by the irrationality of the process as a whole.'[25] Of further guidance when considering legality review grounds, is the following dictum in Ntshangase v MEC for Finance: KwaZulu-Natal & another[(2009) 30 ILJ 2653 (SCA) at para 18.], where it was held: All actions and/or decisions taken pursuant to the employment relationship between the second respondent and its employees must be fair and must account for all the relevant facts put before the presiding officer. Where such an act or decision fails to take account of all the relevant facts and is manifestly unfair to the employer, he/she is entitled to take such decision on review. Moreover, the second respondent has a duty to ensure an accountable public administration in accordance with ss 195 and 197 of the Constitution. review and set aside an interlocutory ruling made by arbitrator JR 2642/2019 South African Sports Confederation and Olympic Committee (SASCOC) v Commission for Conciliation, Mediation and Arbitration and Others (JR 2642/2019) [2021] ZALCJHB 23 (1 March 2021) [3] Although the general rule is that rulings or decisions made during the course of arbitration proceedings may be subjected to review only after the issue in dispute has been finally determined by the CCMA, the court has a discretion in terms of section 158 (1B) of the Labour Relations Act (LRA) to hear the review application at an earlier stage. Given the nature of the arbitrators ruling and so is not to unduly delay the finalisation of the arbitration proceedings, in my view, it is just and equitable for the review application to be heard notwithstanding the fact that the arbitration proceedings remain incomplete. [4] The ruling under review records that during the arbitration proceedings on 26 July 2019, the employees legal representative stated that they had requested the applicant to disclose certain documents, and that the latter had refused to do so on the basis that the documents were not relevant. Amongst the documents requested was an investigation report. The employees made a formal application for disclosure of the document. After an exchange of written submissions concerning the issue of professional legal privilege as it related to the investigation report, the arbitrator issued the ruling under review. His ruling records a brief summary of the submissions made by the parties. On behalf of the employees, it was submitted that the applicant was entitled to claim privilege in respect of communications which took place in preparation for the arbitration hearing, and in relation to the arbitration hearing itself. It is not in dispute that the investigation report was commissioned by the applicant, which instructed the firm Norton Rose Fulbright Inc. to undertake a forensic investigation and produce a report. 1. The ruling issued by the second respondent on 14 November 2019 and under case number HO 478-18 in which the applicant was ordered to disclose certain forensic investigation reports, is reviewed and set aside. section 158(1)(h) of the LRA JR 414/18 Gert Sibande District Municipality v Selepe and Others (JR 414/18) [2021] ZALCJHB 49 (29 March 2021) [6] The principles applicable to review applications such as in casu are enunciated in Hendricks v Overstrand Municipality and Another[(CA24/2013) [2014] ZALAC 49; [2014] 12 BLLR 1170 (LAC); (2015) 36 ILJ 163 (LAC)], where it was inter alia held that the only remedy available to the employer aggrieved by the disciplinary sanction imposed by an independent presiding officer, is the right to seek administrative law review. It was further held that section 158(1)(h) of the LRA empowers this Court to hear and determine reviews in this regard[3] on the grounds (i) listed in Promotion of Administration of Justice Act (PAJA)[4], provided the decision constitutes administrative action; (ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or (iii) in accordance with the requirements of the constitutional principle of legality, such being grounds 'permissible in law'[5]. [7] The Municipality seeks a review of the Chairpersons findings on various grounds of misconduct, legality, irrationality and misdirection, with reliance on Quest Flexible Staffing Solutions (Pty) Ltd (A division of Adcorp Fulfilment Services (Pty) Ltd v Legobatse[6]. This is notwithstanding the fact that the LAC in that matter dealt with a review of an arbitration award under the provisions of section 145 of the LRA, where the Sidumo[7] test found application. (JA104/13) [2014] ZALAC 55; [2015] 2 BLLR 105 (LAC), where it was held; [12] The test that the Labour Court is required to apply in a review of an arbitrators award is this: Is the decision reached by the commissioner one that a reasonable decision-maker could not reach? Our courts have repeatedly stated that in order to maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrators award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrators reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons other than those given by the arbitrator. The result will, however, be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator. [8] Clearly the legal approach postulated by the Municipality in the light of the test enunciated in Hendricks[8] is unsustainable as correctly argued on behalf of Selepe. The correct approach in relation to reviews under section 158(1)(h) of the LRA as pointed out on behalf of Selepe, is that as summarised by Snyman AJ in South African Police Service & another v Ndebele and Others[9], which is that a party seeking a review under section 158(1)(h) of the LRA can competently do so where reliance is placed on the constitutional principle of legality. It is therefore apparent that the Municipality conflated the different tests applicable in respect of reviews sought under sections 145 and 158(1)(h) of the LRA. [13] Whether the findings and the decision of the Chairperson ought to be reviewed on the grounds of legality involves a consideration of whether that decision can be said to be rationally connected to the purpose for which the power was given to him, and whether the Chairperson took account of all the relevant facts placed before him; followed a process that was not only lawful but fair, and whether his decision fell within the powers vested in him in the light of the issues he was required to determine. [15] In the end, I am satisfied that the Chairperson in arriving at his findings, took account all the relevant facts placed before him, followed a process that was not only lawful but fair, and that his decision falls within the powers vested in him in the light of the issues he was required to determine. Accordingly, the decision of the Chairperson met the requirements of the legality test, and the review application ought to fail. Application: suspension of award? Need to provide security? J396/21 Emalahleni Local Municipality v Phooko N.O and Others (J396/21) [2021] ZALCJHB 61 (5 May 2021) Memorandum of objects, Labour Relations Amendment Bill, 2012 states the following as the object of subsection (7) This section is amended by introducing certain measures to reduce the number of review applications that are brought to frustrate or delay compliance with arbitration awards, and to speed up the finalisation of applications brought to the Labour Court to review arbitration awards. At present, a review application does not suspend the operation of an arbitration award. This often results in separate or interlocutory applications to stay enforcement of awards pending review proceedings. It is proposed that the operation of an arbitration award would be suspended if security is provided by the applicant in an amount specified in the provisions, or any lesser amount permitted by the Labour Court.[9] The prevailing and accepted position achieved by the Labour Court at the time of the amendment was that launching a review application does not suspend the operation of an arbitration award. In and around that time Rule 49 (11) of the Uniform Rules provided that the following suspended an operation and execution of an order; namely; (a) noting of an appeal or application for leave to appeal; (b) rescission application; and (c) review. The rule was codifying the common law rule. In light of the common law rule, it was necessary to clarify the position with regard to arbitration awards in relation to suspension. The Labour Court held that bringing a review application does not suspend the operation of an arbitration award. This position ultimately found itself in the LRA and obtained codification under subsection (7). In my view this position existed alongside subsection (3) for a while though not codified. For the above reasons, in my respectful view, it is fundamentally wrong to conclude that in the absence of furnishing of security, this Court is not empowered to exercise its discretion fully within the contemplation of subsection (3). Rustenburg Local Municipality v SALGBC[[2017] 38 ILJ 2596 (LC).] [29] That being said, the Court should always bear in mind the security requirements when exercising its discretion[32] In simple terms, the default position must be that the Labour Court will require security to be provided as prescribed as a condition for any stay or suspension order being granted by the Court, unless the applicant can show good and proper cause in the application why this should not be the case. National Department of Health v Pardesi and Another[[2016] ZALCJHB 492 (September 2016) at para 6.] [6] There are no facts before me that enable me to exercise a discretion to order that security should not be furnished. The default position must therefore apply. That being so, the provisions of s145 (7) prevail, i.e. the institution of review proceedings does not suspend the operation of the arbitration award. The application to set aside or suspend the operation of the writ accordingly stands to be dismissed. LAC in City of Johannesburg v Samwu obo Monareng and another[JA 120/ delivered on 20 March 2019.] [7] The Labour Court has discretionary power under section 145 (3) of the LRA to stay enforcement of an arbitration award pending its decision in the review application. It may stay the enforcement of an arbitration award pending the finalisation of a review application against the award with or without conditions. It may in terms of section 145 (8) of the LRA dispense with the requirement of furnishing security. Properly construed, section 145 (3) read with section 145 (7) and (8) should be interpreted to mean where an applicant in a review application furnishes security to the Labour Court , the operation of the arbitration award is automatically suspended pending its decision in the review application. In other words, the employer need not make an application in terms of section 145 (3) of the LRA to stay the enforcement of the arbitration award. [14] I read this part of the judgment to mean that as a corollary, an applicant may apply for a stay which may be granted with or without conditions. A stay would effectively suspend the operation of an arbitration award. Proper reading of the judgment suggests that there are two distinct applications that a party may bring. Those are, for a stay or for being absolved from furnishing security. The following paragraph makes the point:[8] However, should the employer wish to be absolved from providing security then it is required to make an application to the Labour Court for the stay of the enforcement of the arbitration award. The employer must make a proper case for the stay as well as for the provision of security in accordance with section [16]...The general principles for the granting of a stay remains the following: 1. A Court will grant a stay of execution where real and substantial justice requires it or where injustice would otherwise result. 2. Since the Court will be guided by factors applicable to interim interdicts, the Court must be satisfied that:(a) The applicant has a well-grounded apprehension that execution is taking place at the instance of the respondent;(b) Irreparable harm will result if the execution is not stayed and the applicant ultimately succeeds in establishing a clear right;(c) Irreparable harm will invariably result if there is a possibility that the underlying causa (arbitration award) may ultimately be removed, i.e. where the underlying causa is the subject-matter of an ongoing dispute between the parties;(d) The court is not concerned with the merits of the underlying dispute the sole enquiry is simply whether the causa is in dispute. [17]...Having traversed the authorities, I take a view that once a party satisfies the requirements spelled out above a stay must happen irrespective of whether a party has symbiotically sought to be absolved from the furnishing of security. [21]...The LAC did not consider prejudice to an employer as being decisive. It considers it to be one factor but it is not decisive. It does seem that the LAC considers the sufficiency of assets as a crucial consideration. It held [25] In particular, because the facts more than adequately demonstrate that the appellant is in possession of sufficient assets to meet an order of the review court upholding the arbitration award in the dismissed employees favour. power to interfere with the quantum compensation awarded by the arbitrator JS926-18 One Asset Professional Engineering Services (Pty) Ltd t/a GE Power (JS926-18) [2021] ZALCJHB 112 (27 May 2021) Ganga v St John's Parish (2014) 35 ILJ 1294 (LC) [4] The respondent, Slimane Bouktab, concedes that he is a peregrinus of this Court and that it is obliged to provide security for the applicant's costs. The respondent tendered R50 000 as security. The applicant claims R200 000.[5] The dispute is only about the quantum of the security for costs. The Labour Court held that it has a wide discretion to be exercised by having regard to all relevant facts, including considerations of equity and fairness to both parties in the consideration of directing security.[1] Power to interfere with the quantum compensation awarded JA29/2020 Ekhuruleni Metropolitan Municipality v Mandosela and Others (JA29/2020) [2021] ZALAC 14; [2021] 10 BLLR 994 (LAC); (2021) 42 ILJ 2168 (LAC) (2 July 2021) [24] It is submitted on behalf of the appellant that it is trite that when awarding compensation, the commissioner exercises a discretion which should not be too readily or easily interfered with by the Labour Court.[5] The appellant contends that the court a quo had no power to interfere with the quantum compensation awarded by the arbitrator, and in this regard relies on Kukard v GKD Delkor (Pty) Ltd[((2015) 36 ILJ 640 (LAC) at para 35] wherein the court held that: the courts power to interfere with quantum of compensation awarded by an arbitrator under s 194(1) of the LRA is circumscribed and can only be interfered with on the narrow grounds that the arbitrator exercised his or her discretion capriciously or upon the wrong principle, or with bias, or without reason or that she adopted a wrong approach. In the absence of one of these grounds, this court has no power to interfere with the quantum of compensation awarded by the commissioner. It is, therefore, for Delkor to persuade this court that the quantum of compensation awardee by the commissioner may be impugned on one of the narrow grounds referred to above [29] On the facts set out in this matter, when granting an award of 12 months compensation, the court a quo did not advance any special circumstances justifying such a startling award given the provisions and the nature of the first respondents employment. The court a quo did not indicate whether the arbitrators exercise of his discretion was capricious, based on wrong principles, biased or whether the arbitrator misconducted himself.[Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC).] cross-review JR578/14 Bosch v JDG Group (Pty) Ltd and Others (JR578/14) [2021] ZALCJHB 171 (21 July 2021) [9] It is acknowledged that Rule 7A of the Rules of this court does not make provision for a cross-review application. In the absence of any such provision, it follows that a party that wishes to challenge the findings of a commissioner in any material respects must comply with the provisions of Rule 7A even if another review application has been lodged by the other party. In essence, a separate review application must be launched with full compliance with the provisions of Rule 7A of the Rules of this Court. This point, which I align myself with, was emphasised in In SA Broadcasting Corporation Ltd v Grogan N O & another,[(2006) 27 ILJ 1519 (LC). See also Singh v First National Bank and Others (D397/2011) [2014] ZALCD 44 (9 September 2014).], where it was held that: Rule 7A makes no provision for an animal such as a 'counter-review'. This is in contradistinction to rule A 5(5) of the Rules of the Labour Appeal Court, that provides for a notice of cross-appeal to be delivered within 10 days (or such longer period as may on good cause be allowed) after receiving notice of appeal from an appellant. The absence of a similar provision in rule 7A relating to a 'counter-review' does not, to my mind, mean that a respondent in a review application can sit on his hands and then, only after the applicant has filed a rule 7A(8) notice, file a counter-review without further ado. On the contrary, it appears to me that what is styled as a 'counter-review' is simply an application for review by a different name. The second respondent seeks to review different aspects of the findings of the arbitrator, and on different grounds. That would usually be the case where a respondent seeks to bring an application for a 'counter-review'. He has to file a proper application for review, and has to do so within six weeks after publication of the award. REINSTATEMENT AFTER DEEMED TO HAVE BEEN WITHDRAWN JR 602/15 Mashego v Commission for Conciliation, Mediation and Arbitration and Others (JR 602/15) [2021] ZALCJHB 195 (27 July 2021) [40] Be that as it may, the review application should be reinstated and be alive before the late filing of the record could be condoned. An application to have the review application reinstated could be filed together with an application in which condonation for the late filing of the record is sought, but an application to condone the late filing of the record, cannot be considered in circumstances where the review is deemed withdrawn, without an application for its reinstatement. [37] The prevailing authority is that the withdrawal of a matter is not a bar to the reinstitution of the proceedings. For a deemed withdrawn application to be reinstated, the Applicant has to file a substantive application, which is then for the Court to consider and to decide whether or not to grant such an application. [34] What is the status of a review application that is deemed withdrawn? This question was considered in SG Bulk v Khumalo and another[Unreported judgment handed down under case numbers JS 393/19 and JR 537/13.] where the Court held that it is by now settled law in this Court that where a review application is deemed withdrawn, there is no longer a live matter to be entertained.[Overberg District Municipality v IMATU obo Spangenberg and others case number C157-18 (08 June 2020) followed recently in Vesela Risk Services (Pty) Ltd v CCMA and others case number JR648-18 [2021] ZALCJHB 37 (28 January 2021)] [35] In Robor Tube (Pty) Ltd V MEIBC and others[(2018) 39 ILJ 2332 (LC) at par 7] it was held that: In my view, there ought to be no reason, in principle, why an application that has been withdrawn ought not to be capable of reinstatement. First, the Labour Court is established as a court of law and equity, with the inherent powers and standing, in relation to matters under its jurisdiction, equal to that which a division of the High Court has under its jurisdiction. The court therefore has the inherent jurisdiction to regulate its own proceedings and control its own process. [36] This was confirmed by the LAC in Ellies Electronics (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(JA74/2018) [2020] ZALAC 33 (24 June 2020)] where it was held that: The withdrawal of a matter at the instance of a party is a unilateral act which results in the matter being removed from the roll in the same manner as if absolution from the instance had been granted. The fact that a matter has been withdrawn does not in principle bar either the reinstitution of proceedings or the institution of fresh proceedings (in which case the absolved defendant may not raise the defence of res judicata if sued again on the same cause of action). In finding differently, the Labour Court erred. Faced with an application to have the matter reinstated, it was for a court to determine whether or not to grant such application having regard to the relevant facts and issues of prejudice, while recognising that employment disputes by their nature are urgent and require speedy resolution. [32] In Ralo v Transnet Port Terminals and Others [2015] ZAECPEHC 68 (17 June 2015), [2015] 12 BLLR 1239 (LC), (2015) 36 ILJ 2653 (LC), the Court accepted the legal definition of deemed as set out in the Namibian authority of Municipal Council of the Municipality of Windhoek v Marianna Esau (LCA 25/2009, 2 March 2010) where the Court held that the word deemed is considered to have a conclusive effect. This Court concluded by stating the following: The plain and unambiguous wording of the practice manual is to the effect that the applicant must be regarded as having withdrawn the review application.[33] In casu the Applicant had not filed the record within the prescribed 60 day period. Clause 11.2.3 of the Practice Manual makes it clear that if an applicant in a review application fails to file the record within the prescribed period, the applicant will be deemed to have withdrawn the application. That being so, the Applicant in casu is deemed to have withdrawn the review application and there is consequently no lis between the parties. [40] Be that as it may, the review application should be reinstated and be alive before the late filing of the record could be condoned. An application to have the review application reinstated could be filed together with an application in which condonation for the late filing of the record is sought, but an application to condone the late filing of the record, cannot be considered in circumstances where the review is deemed withdrawn, without an application for its reinstatement. [45] In Randburg Towers (Pty) Ltd v Masilo and others[Unreported judgment handed down under case JR1758/2016, 19 February 2021.] the Court was also faced with a deemed withdrawn review application and held that: Simply put, there is no longer a review application that serves before the court. In those circumstances, in my view, the applicant in the present application is entitled to a declaratory order that gives effect to the consequences visited by clause 11.2.3 on an applicant that fails to comply with the time limits within which to file a record of proceedings sought to be reviewed. [12] In Karan t/a Karan Beef Feedlot and Another v Randall,[(2009) 30 ILJ 2937 (LC) at para 14.] it was held: In summary: despite the fact that the rules of this court make no specific provision for an application to dismiss a claim on account of the delay in its prosecution, the court has a discretion to grant an order to dismiss a claim on account of an unreasonable delay in pursuing it. In the exercise of its discretion, the court ought to consider three factors: the length of the delay; the explanation for the delay; and the effect of the delay on the other party and the prejudice that that party will suffer should the claim not be dismissed. Arbitrator failed to keep complete record JR119/16 South African Police Services and Another v Kgolane and Others (JR119/16) [2021] ZALCJHB 197 (2 August 2021) [16] It is apparent from the submissions that the reason for the delay of the filing of the recording, albeit incomplete, is due to the failure of the Arbitrator to secure the recordings of the arbitration proceedings. In Toyota SA Motors (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others[(CCT 228/14 [2015] ZACC 40 ; (2016) 37 ILJ 313 (CC)], it was stated that: It is the duty of the Commissioner of the CCMA conducting an arbitration to ensure that a proper and complete record of those proceedings is kept together with CCMA, to, ensure that if subsequently there is a review application a proper and complete record is made available to the registrar of the Labour Court. It may well be that a failure by the Commissioner to perform this important function constitutes misconduct or a gross irregularity as envisaged is section 145(2) and (b) respectively.[17] In Cashbuild (Pty) Ltd v Merwe NO and Others[JR 516-11, J2735/13 [2016] ZALCJHB 108], the Court held that:-The importance of the record cannot be overemphasised. The test for review has recently been affirmed by the Supreme Court of Appeal and the Labour Court requires this Court to examine the record and to determine ultimately whether notwithstanding any defects in the arbitrators reasoning or any other reviewable irregularity on the arbitrators part, the result of the proceedings can nonetheless be sustained by reference to the record. Where there is an incomplete record, this is obviously impossible where, as in a case such as the present one, the grounds for review are predicated on what are contended by the conclusions and findings that are not supported by evidence. The summary of evidence contained in the arbitrators award is intended to be precisely that. It is not a substitute for the record and is not by any means a basis from which reasonableness of any conclusion reached by the arbitrator can be ascertained.[18] In the present matter, it is apparent that the Applicants acted in good faith in an attempt to secure the record. The Applicants conduct was not intended at frustrating the First Respondents case nor was it aimed at abusing the Courts processes. This delay is wholly due to the failure of the Arbitrator to secure a complete record, a conduct which is described in Toyota SA supra as a gross irregularity. [19] Based on the above, the application for an order for the reinstatement of the review application stands to succeed. courts judgement of the case J1136/16 Sisonke Partnership t/a DSV Health Care (formerly UTI Pharma) v GIWUSA obo Zwane and Others (J1136/16) [2021] ZALCJHB 459 (8 December 2021) [111] The principles had been set out by the LAC in Palluci Home Depot (Pty) Ltd v Herskowitz[[2011] 2 BLLR 129 (LAC) at par 18.] as follows: Where all the facts required to make a determination on the disputed issues are before a reviewing court in an unfair dismissal or unfair labour practice dispute such that the court is in as good a position as the administrative tribunal to make the determination, I see no reason why a reviewing court should not decide the matter itself. Such an approach is consistent with the powers of the Labour Court under s 158 of the LRA, which are primarily directed at remedying a wrong, and providing the effective and speedy resolution of disputes. The need for bringing a speedy finality to a labour dispute is thus an important consideration in the determination by a court of review of whether to remit the matter to the CCMA for reconsideration, or substitute its own decision for that of the commissioner. security J1535/21 Afgri Poultry (Pty) Ltd t/a Daybreak Farms v Seruwe (J1535/21) [2021] ZALCJHB 458 (17 December 2021) [58] In City of Johannesburg v SAMWU obo Monareny and another[(2019) 40 ILJ (LAC) at para 7 -9.] the LAC considered the interpretation and application of section 145(3), (7) and (8) of the LRA and held that: The Labour Court has a discretionary power under s 145(3) of the LRA to stay the enforcement of an arbitration award pending its decision in the review application. It may stay the enforcement of an arbitration award pending finalisation of a review application against the award with or without conditions. It may in terms of s 145(8) of the LRA dispense with the requirement of furnishing security. Properly construed, s 145(3) read with s 145(7) and (8) should be interpreted to mean that where an applicant in a review application furnishes security to the Labour Court in accordance with s 145(8) of the LRA, the operation of the arbitration award is automatically suspended pending its decision in the review application. In other words, the employer need not make an application in terms of s 145(3) of the LRA to stay the enforcement of the arbitration award pending the finalisation of the review application. However, should the employer wish to be absolved from providing security or to provide security in an amount less than the threshold in subsection (8)(a) and (b), then it is required to make an application to the Labour Court, in terms of s 145(3), for the stay of the enforcement of the arbitration award pending its decision in the review application. The employer must make out a proper case for the stay as well as for the provision of security in accordance with s 145(8) to be dispensed with or reduced. The words unless the Labour Court directs otherwise in s 145(8) of the LRA must be construed broadly to mean that the Labour Court is afforded a discretion to either: (a) exempt the employer from paying security on the stay of the enforcement of an arbitration award pending its decision on review or (b) reduce the quantum of security to be furnished by the employer to an amount below the threshold in s 145(8)(a) and (b)of the LRA.[59] The LAC further held that: Before the Labour Court exercises its discretion under s 145(8), the employer seeking to dispense with the requirement to provide security for the suspension of the enforcement of the arbitration award, must show cause for why it should not do so. [59] The LAC further held that: Before the Labour Court exercises its discretion under s 145(8), the employer seeking to dispense with the requirement to provide security for the suspension of the enforcement of the arbitration award, must show cause for why it should not do so. In Rustenburg Local Municipality, the Labour Court held as follows in relation to what good cause entails: Good cause in the context of motivating a departure from the security provisions prescribed in s 145(7) and (8) would involve a proper explanation why this request should be entertained, with particular emphasis on any material prejudice the applicant may suffer if it is not granted this relief. I will illustrate the point by way of an example. A small manufacturing business with 20 employees dismisses ten employees for group misconduct. A CCMA commissioner then reinstates all these employees. The required security would be 24 months’ salary for each of these ten employees, which would then wipe out the entire operating cash flow of the undertaking for several months. This is the kind of prejudice I am referring to. Simply described, the explanation cannot be that it will be hard to set security, but the explanation must be that it would be unduly onerous and harmful to be required to set the prescribed security. Material prejudice to the employer is but one factor that the Labour Court must give consideration to it is by no means decisive. In exercising its discretion, the Labour Court must have regard to the particular circumstances of the case as well as considerations of equity and fairness to both the employer and the employee. A factor that the Labour Court must take into consideration is whether the employer is in possession of sufficient or adequate assets to meet an order of the review court upholding the arbitration award; the principal concern being that the dismissed employee should not be left unprotected if the Labour Court decides the review application in his or her favour. The onus is on the employer seeking an exemption from furnishing security under s 145(8) of the LRA to establish that it has assets of a sufficient value to meet its obligations should the arbitration award be upheld. [62]In short, the Applicants financial stability, its asset and income base demonstrate its ability to satisfy the arbitration award in the event of not succeeding on review and there is no risk that the Respondent would be left unprotected in that event, if security is not furnished at this point. As a result, I can see no reason why the Applicant should be ordered to put up security. section158 (1) (h) of the LRA JR 899/19 Department of Defence v Thamaga N.O and Another (JR 899/19) [2022] ZALCJHB 77 (9 March 2022) [34] The conclusion I reach is that the decision to not dismiss is not an administrative action nor is it an exercise of public power within the contemplation of a legality review. However, I remain bound by Ntshangase and Hendricks. I then have to consider this matter under a legality review as opposed to it being an administrative action despite the character given to these type of matters by Ntshangase. It is by now settled law that a review of own decision can only happen under legality review[[2017] ZACC 40 (14 November 2017)]. [37] A decision is unreasonable if no other reasonable decision maker may reach it, as held in the Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & others[35] judgment. With regard to rationality in Minister of Defence and Military Veterans v Motau[2014 (8) BCLR 930 (CC)]it was said:[69] The principle of legality requires that every exercise of public power, including every executive act, be rational. For the exercise of public power to meet this standard, it must be rationally related to the purpose for which the power was given [39] It has been confirmed that rationality and reasonableness are conceptually different. In Albutt v Center for the Study of Violence and Reconciliation and others[2010 (3) SA 293 (CC)], the following was said: The Executive has a wide discretion in selecting the means to achieve its constitutionally permissible objectives. Courts may not interfere with the means selected simply because they do not like them, or because there are other more appropriate means that could have been selected. But, where the decision is challenged on the grounds of rationality, courts are obliged to examine the means selected to determine whether they are related to the objective sought to be achieved. What must be stressed is that the purpose of the enquiry is to determine not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if, objectively speaking, they are not; they fall short of the standard demanded by the Constitution. [45] Turning to rationality, Albutt decreed that what I assess is whether the means employed the alternative sanction of final written warning meets the purpose and the objective of the power endowed. Recently, the Constitutional Court under the hand of Khampepe J in National Energy Regulator of South Africa and Another v PG Group (Pty) Ltd and Another[(CCT 131/18) 2019 ZACC 28.] had the following to say about rationality:[64] Rationality is concerned with one question: do the means justify the end? Review application had already been deemed withdrawn: Rescission application the Labour Court has no jurisdiction to entertain a Rule 11 application to dismiss a defunct review application. Application to reinstate the deemed withdrawn review application granted simply because fairness dictates that the review application be dealt with and disposed of on the merits rather than technicalities any prejudice could be cured by a suitable costs order. JR2853/17 Ndlela v Department of Correctional Services: In Re: Department of Correctional Services v Ndlela and Others (JR2853/17) [2022] ZALCJHB 133 (9 June 2022) [9] On the other hand, Mr Ngobese SC, who appeared for the DCS, contends that once the review application has lapsed, there is nothing before the Court to be dismissed and accordingly, this Court lacks jurisdiction to dismiss a lapsed review application.[National Union of Metal Workers of South Africa obo Matabane v Fabricated Steel Manufacturing and others unreported judgment under case no: JR1343/10 delivered on 7 February 2017.] To fortify this argument, the DCS places reliance on various decisions of this Court, particularly, the case of Ralo v Transnet Port Terminals and Others[(2015) 36 ILJ 2653 (LC) at paras 8 - 10.] (Ralo), per Van Niekerk J, where it was stated that:[8] The status of the Practice Manual was discussed by this court in Tadyn Trading CC t/a Tadyn Trading Consulting Services v Steiner & others (2014) 35 ILJ 1672 (LC). The court said the following, at para 11 of the judgment: The correct approach in my view, as to the force and effect of practice directives similar to the one in issue is the one adopted in In re Several Matters on the Urgent Roll [2013 (1) SA 549 (GSJ)] in which the court had to consider the force and effect of the provisions of the practice manual chapter 9.24 of the South Gauteng High Court regarding the failure by the applicant to set out the explicit circumstances which rendered the matter urgent. The court held that in law the Judge President was entitled to issue practice directives relating to the procedure of setting down matters on the roll.[9] I agree. The Practice Manual contains a series of directives, which the Judge President is entitled to issue. In essence, the manual sets out what is expected of practitioners so as to meet the imperatives of respect for the court as an institution, and the expeditious resolution of labour disputes (see clause 1.3). While the manual acknowledges the need for flexibility in its application (see clause 1.2) its provisions are not cast in the form of a guideline, to be adhered to or ignored by parties at their convenience.[10] To the extent that the applicant contends that the meaning of the word deemed is such that the dispute between the parties remains unresolved and that the application has not been withdrawn, the meaning of deemed in a context similar to the present has been the subject of an instructive judgment by the Labour Court of Namibia. While Municipal Council of the Municipality of Windhoek v Marianna Esau (LCA 25/2009, 12 March 2010) concerned the lapsing of appeals, the wording of the rule under consideration in that instance is not dissimilar. Rule 17(25) of the Rules of the Labour Court of Namibia provide that an appeal to which this Rule applies must be prosecuted within 90 days after the noting of such appeal, and unless so prosecuted it is deemed to have lapsed. The word deemed in this instance was clearly considered to have conclusive effect in the absence of the prosecution of the appeal within the prescribed period the appeal was held to have lapsed. (See also Pereira v Group Five (Pty) Ltd and others [1996] All SA 686, at 698, where the court referred with approval to Steel v Shanta Construction (Pty) Ltd 1973 (2) SA 537 (T), in which Coetzee J stated that the word deemed means considered or regarded and is used to denote that something is a fact regardless of the objective truth of the matter.) The plain and unambiguous wording of the Practice Manual is to the effect that the applicant must be regarded as having withdrawn the review application. (emphasis added) [27] In the circumstances, the order of Mabaso AJ of 4 December 2018 stands to be rescinded. In addition, the DCS has successfully shown good cause for the reinstatement of the review application. correctness and not reasonableness JA 56/21 Ekurhuleni Metropolitan Municipality v Mabusela N.O. and Others (JA 56/21) [2022] ZALAC 112 (13 October 2022) [27] It is now established that the applicable test on review of a CCMA or bargaining council arbitrators interpretation of a legal instrument is correctness and not reasonableness[3]. A reasonable arbitrator is not supposed to get a legal point wrong. In National Union of Metalworkers of SA v Assign Services and Others, [2017] 10 BLLR 1008 (LAC) (Assign Services)] the position was crisply stated as follows: An incorrect interpretation of the law by a Commissioner is logically a material error of law which will result in both an incorrect and unreasonable award. Such an award can either be attacked on the basis of correctness or for being unreasonable. incomplete record JR1661/12 Mphela v Metal Engineering Industries Bargaining Council and Others (JR1661/12) [2022] ZALCJHB 252 (6 September 2022) [23] The position that is adopted by our courts, is summarised by Nkabinde AJA (as she was then) in Peter Fountas as follows: In my view there can be no doubt that the Court a quo should not have proceeded to consider the merits of the review application in this matter when there was material evidence missing in the record. What the Court a quo was required to have done was to consider whether the first respondent as the applicant in the review application had taken all reasonable steps to search for such evidence and or to reconstruct the record. If the first respondent had taken all reasonable steps to either find the missing evidence or to reconstruct the record and these had been to no avail, it could then have had to deal with the question of what should be done. If, however, it was of the view that the first respondent had not taken all reasonable steps that it could and should have taken, it would have had to choose one of two options. The one would be to dismiss the application on the basis that the first respondent had had ample opportunity to take those steps and had no acceptable explanation for not having done so. This is not an option that the Court a quo could have taken lightly because it would have shut the door in the face of the first respondent who would not have been able to have set aside an arbitration award that may well not have deserved to stand. However, it is a decision that a Court may take in an appropriate case. [(JA36/03) [2006] ZALAC 12 (17 May 2006).] [24] Considering the remarks made by Nkabinde AJA, an enquiry must be conducted to determine whether the missing portion of the record is material, in other words is it possible to deal with this review application based on the record filed? If so, then the review must proceed on the basis of the available record.[25] If it is found that the missing portion of the record is such that the matter cannot be determined without it, then it must be determined whether or not the Applicant has taken all reasonable steps to reconstruct the missing portion of the record. If it is established that he has, then it may be that the review should succeed on this basis and be remitted certainly there is authority for this in Uee-Dantex Explosives (Pty) Ltd v Maseko and Others[[2001] 7 BLLR 842 (LC); See also: New Clicks SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 1972 (LC).].[26] As further stated in Francis Baard District Municipality v Rex N.O and Others[(2016) 37 ILJ 2560 (LAC).] there is an obligation on an administrative decision maker to keep an objective record and that an applicant should not be prejudiced for the unavailability of such a record where they have taken all reasonable and necessary steps to obtain it. However, if it is found that an applicant has not taken all the necessary and reasonable steps to locate the missing portion of the evidence or to reconstruct the missing portion of a record, then the Court has two further options as identified in Peter Fountas, which is to either postpone or dismiss the matter. [28] Although it is not the Applicant's duty to record and preserve the testimonies of witnesses, he had a duty to ensure that he places the best record before this Court. The Applicant should, therefore, take all reasonable steps to achieve this. [31] In Lifecare Special Health the manner in which a reconstruction ought to be done was properly explained by the court as follows: A reconstruction of a record (or part thereof) is usually undertaken in the following way. The tribunal (in this case the Commissioner) and the representatives (in this the Applicant's representative and the employer's representative) come together, bringing their extant notes and such other documentation as may be relevant. They then endeavour to the best of their ability and recollection to reconstruct as full and accurate a record of the proceedings as the circumstances allow. This is then placed before the relevant court with such reservations as the participants may wish to note. Whether the product of their endeavours is adequate for the purpose of the appeal or review is for the court hearing same to decide, after listening to argument in the event of dispute as to accuracy or completeness.[(2003) 24 ILJ 931 (LAC).] [33] It is imperative, as set out in the aforementioned cases, for one to, as a starting point, establish whether the missing parts of the record are material. The materiality would be decided upon considering, inter alia, the grounds of the review, the nature of the missing evidence and the attitude of the arbitrator and the parties.[(2016) 37 ILJ 2560 (LAC).] [35] It is trite that there is a direct link between the record, the standard of review and the grounds of review. Each case will therefore depend on its own facts and circumstances.[20] There can be no one size fits all approach. A court may not set aside a finding of fact by a commissioner, unless there is no evidence to support it or, if in light of all the evidence, the finding is otherwise unreasonable. [41]It is thus obvious that in the absence of a complete (or reasonably complete) record, unless there is a glaring defect, it is impossible for this Court to properly assess the reasonableness or otherwise of the decision without having the benefit of all of the material that was before the decision maker. 1. The application for review is dismissed. supplementary affidavit JR 38/2020 Motsei and Others v General Public Service Sector Bargaining Council and Others (JR 38/2020) [2022] ZALCJHB 253 (9 September 2022) [8]... In any event, to the extent that Rule 7A (8) permits an applicant in a review application to amend, add to or vary the terms of the notice of motion and to supplement the founding affidavit, the Rule does not go so far as to permit an applicant by way of the delivery of a supplementary affidavit, effectively to deliver a new and different review application, relating to a different award or ruling and under a different section of the LRA. In Bafokeng Rasimone Platinum Mine (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (2015) 36 ILJ 3045 (LC), this court held that Rule 7A (8) envisages that the supplementary affidavit contain a final statement of the applicants grounds for review, in relation to the award that is the subject of the review application. What the applicants have in effect done is sought to introduce a new and different application for review through the back door, under the guise of a supplementary affidavit, some two years after the ruling sought to be reviewed was issued, and long after the conclusion of the arbitration proceedings that form the subject of the main review application. Incomplete record JR 1912/2018 Eskom Holdings SOC Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR 1912/2018) [2022] ZALCJHB 335 (22 November 2022) [36] The interest of justice will be best served by remitting the matter for arbitration de novo. [26] In Department of Transport, North West Province v Sebotha No and others,[5] the Court held that in the absence of a proper record it is unable to determine whether or not there is a basis for the criticism against the commissioners findings and held that:[16] I now turn to deal with the issue of whether or not the award of the arbitrator is reviewable. In considering whether or not to review and set aside the arbitration award of the arbitrator the question that arises is whether or not the conclusion reached by the arbitrator falls outside the range of reasonableness so as to attract interference with the award by the court. The test to determine whether or not a conclusion reached by an arbitrator is reasonable or otherwise is that of a reasonable decision-maker. The question to be answered in considering the reasonableness or otherwise of an award is whether the conclusion of the arbitrator is one which a reasonable decision maker could not reach[17] In order to apply the above test the court needs to have before it the record of the arbitration proceedings. As a general rule the complete record of everything that transpired during the arbitration proceedings needs to be placed before the court[18] The responsibility to ensure that a proper and complete record is placed before the court rests with the applicant. Failure to place before the court a complete record by the applicant could result in the dismissal of the review application on that ground alone. [27] In Balasana v Motor Bargaining Council and others,[6] the Court was faced with a difficulty in that there was no transcript of the arbitration proceedings. The Court held that the general view adopted in cases where there is a defective or incomplete record is to refuse to entertain the review, particularly where the applicant has failed to show what steps he took to find the missing parts or to have it reconstructed. It was however held that: I am of the view that dismissing the applicants review application and bringing the matter to finality on that basis would equal both an injustice and unfairness It is therefore my view that the practical approach based on the dictates of justice and fairness is to remit the matter to the first respondent for the dispute to consider afresh before a commissioner other than the second respondent. [28] In Baloyi v Member of the Executive Committee for Health and Social Development, Limpopo and others,[7] the Labour Court dismissed an application for review on the merits, with the application having been determined on the basis of the commissioners handwritten notes. On appeal, the Constitutional Court acknowledged that there may be cases where it will be contentious to determine a review of arbitration proceedings in the absence of a proper record and considered the remedies to follow when no proper record is available. The Constitutional Court held that it was improper to dismiss the review application without a proper record of the arbitration proceedings. The Court held that: the Labour Court should have remitted the matter to the bargaining council as proposed by the arbitrator and the bargaining council itself. The mechanical recordings of the arbitration had been misplaced and could not be traced. This meant that the arbitration proceedings would commence afresh before a different arbitrator. None of the parties, including the applicant, were opposed to this proposal. The court chose to decide the matter on the defective record before it and made an order adverse to the applicant, when it should not have done so. [29] In Fountas v Bolas Projects (Pty) Ltd and others,[8] the Labour Appeal Court was faced with an appeal where the Labour Court dealt with a review application, despite the absence of relevant portions of the record and held that:[31] In my view there can be no doubt that the Court a quo should not have proceeded to consider the merits of the review application in this matter when there was material evidence missing in the record. What the Court a quo was required to have done was to consider whether the first respondent as the applicant in the review application had taken all reasonable steps to search for such evidence and or to reconstruct the record. If the first respondent had taken all reasonable steps to either find the missing evidence or to reconstruct the record and these had been to no avail, it could then have had to deal with the question of what should be done. If, however, it was of the view that the first respondent had not taken all reasonable steps that it could and should have taken, it would have had to choose one of two options.[32] The one would be to dismiss the application on the basis that the first respondent had had ample opportunity to take those steps and had no acceptable explanation for not having done so. This is not an option that the Court a quo could have taken lightly because it would have shut the door in the face of the first respondent who would not have been able to have set aside an arbitration award that may well not have deserved to stand. However, it is a decision that a Court may take in an appropriate case.[33] The other option that the Court a quo could take would have been to postpone the review application or to strike it off the roll to enable the first respondent or all parties to take such steps as might not have been taken earlier to search for the missing evidence or to reconstruct the record. The latter option is one that a Court will usually adopt unless it is dealing with a case where considerations of fair play between the parties, finality of litigation and others demand that the application be dismissed without the consideration of the merits. This would occur where, for example, the matter had dragged on for a long time and the relevant party had had ample opportunity to reconstruct the record but had, for no acceptable reason, failed to do so. [30] The principles had been set out by the LAC in Palluci Home Depot (Pty) Ltd v Herskowitz and others[9] as follows: Where all the facts required to make a determination on the disputed issues are before a reviewing court in an unfair dismissal or unfair labour practice dispute such that the court is in as good a position as the administrative tribunal to make the determination, I see no reason why a reviewing court should not decide the matter itself. when review and when CCMA rescission JR292/19 Valinor Trading 133 CC t/a Kings Castle v CCMA and Others (JR292/19) [2023] ZALCJHB 33; (2023) 44 ILJ 1106 (LC); [2023] 4 BLLR 321 (LC) (3 February 2023) [24] In two judgments of this Court, Glencore Operations SA (Pty) Ltd v CCMA and others[(2021) 42 ILJ 2446 (LC).] and Solomons v Phokela NO and others[ (JR99/2021) [2021] ZALCJHB 192 (2 August 2021).] a view was expressed that where a commissioner exercised a statutory function or a purported one, the appropriate remedy is to launch a review in terms of section 158 (1) (g) of the LRA. In commencing arbitration proceedings, Lebea purported to function in terms of the LRA. Clause 11.2.4 of the Practice Manual: lost record JR 1648/10 ; J 492/20) South African Social Security Agency v Hartley and Others (JR 1648/10 ; J 492/20) [2023] ZALCJHB 50 (1 March 2023) "[59] Clause 11.2.4 of the Practice Manual provides as follows: ‘If the record of the proceedings under review has been lost, or if the recording of the proceedings is of such poor quality to the extent that the tapes are inaudible, the applicant may approach the Judge President for a direction on the further conduct of the review application. The Judge President will allocate the file to a judge for a direction, which may include the remission of the matter to the person or body whose award or ruling is under review, or where practicable, a direction to the effect that the relevant parts of the record be reconstructed.’" [62] An applicant seeking such direction from the Judge President should set out in detail what steps were taken to ensure that a record, necessary for the review application, was placed before Court, why the available record is inadequate to proceed with the review and that the parties have done what they could to place a proper record before Court but are unable to do so. [63] The Judge President and Judges in this Court are not to advise parties to file an application to compel in terms of Rule 7A(4) or to order them to reconstruct a record where the need to do so is obvious. Parties should explore and exhaust the remedies available to them before approaching this Court for direction on the further conduct of the review application. "[69] In Balasana v Motor Bargaining Council and others,[(2011) 32 ILJ 297 (LC) at para 27.] the Court was faced with a difficulty in that there was no transcript of the arbitration proceedings. The Court held that the general view adopted in cases where there is a defective or incomplete record, is to refuse to entertain the review particularly where the applicant has failed to show what steps he took to find the missing parts or to have it reconstructed. It was however held that: ‘I am of the view that dismissing the applicant’s review application and bringing the matter to finality on that basis would equal both an injustice and unfairness… It is therefore my view that the practical approach based on the dictates of justice and fairness is to remit the matter to the first respondent for the dispute to consider afresh before a commissioner other than the second respondent.’" [77] In my view, the Applicant has taken all reasonable steps to reconstruct the record and there is no possibility that a further attempt will result in a better record, wherefore I am not inclined to dismiss the application for lack of a complete record. This is not a case where the record was available, but the Applicant just took no steps to file it. [91] In casu, the same fate meets the Applicant and the status of the review application is ‘archived’ and ‘regarded as lapsed’. When a commissioner considers a condonation application an exercise of discretion is involved. JR 1678/21 Mofokeng and Another v The GPSSBC and Others (JR 1678/21) [2023] ZALCJHB 64 (17 March 2023) A Court of review may only interfere with the exercise of discretion if the decision maker (a) acted capriciously; (b) applied wrong legal principles; and (c) was actuated by malice. Thus the interference with the exercise of discretion is a limited one. Where a party laments a lack of hearing of a motion that party must establish that right in the rules of the bargaining council. "[6]...The judgment concerned itself with the CCMA rules, in particular rule 31 (9) which required the CCMA to allocate a date for hearing of an application and to notify the parties of that date. [7] The condonation application was entertained in the bargaining council. There is nothing suggested in the papers that the GPSSBC has a similar provision as rule 31 (9) which would have opportune the applicants to expect an allocation of a hearing of the motion. Accordingly, this Court is unable to conclude that De Wet was obliged to hear the condonation application before making a ruling." of own decision ito section 158(1)(h) JR 998/19 Makhonjwa v Director General of the Department of Justice and Constitutional Development and Others (JR 998/19) [2023] ZALCJHB 90 (21 April 2023) "[9]...In my view, the dispute between the applicant and the respondent does not concern either the administrative action or any exercise of public power. While it is correct that the applicant is an employee of the department, the present application does not concern the employment relationship between him and the department. Rather, the applicant seeks relief in his capacity as the nominated chairperson of a disciplinary hearing into the alleged misconduct of another employee (Mokatsane). [10] I fail to appreciate how it can be said that in these circumstances, the applicant exercised a power that is reviewable by this court, at his instance. The court has previously entertained applications by employers to review and set aside decisions made by chairpersons of disciplinary hearings (be they employees or independent parties contracted for that purpose) at the instance of the employer (see, for example, Khumalo v MEC Education: KwaZulu Natal (2014) 35 ILJ (CC)). But these cases concern employers who seek to review their own decisions or, put another way, decisions taken on their behalf." approach is for the Labour Court to consider the totality of the evidence in deciding “whether the decision made by the arbitrator is one that a reasonable decision maker could make.” JR 1054/2018 Tactical Reaction Services v Thompson and Others (JR 1054/2018) [2023] ZALCJHB 187 (19 June 2023) "[6] More recently, in Securitas Specialised Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others [2021] 5 BLLR 475 (LAC) restated the review test in the following terms: The test for review is this: “Is the decision reached by the arbitrator wonder that a reasonable decision maker could not reach?” To maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrator’s award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator’s reasoning is found to be unreasonable, the result is, nevertheless, capable of justifications for reasons other than those given by the arbitrator. The result will be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator. This court has eschewed a piecemeal approach to a review application by the Labour Court. The proper approach is for the Labour Court to consider the totality of the evidence in deciding “whether the decision made by the arbitrator is one that a reasonable decision maker could make.” " [7]...In my view, the arbitrator’s conclusions cannot be said to be so unreasonable that they fall outside of the range of reasonable responses to the evidence. Acceptability of record – Applicant opted to transcribe electronic version of record and not use a transcription company – Respondent objected to such a transcription – Suggested that record of proceedings was incomplete – Correct interpretation of Rule to be adopted – Transcription produced from an electronic record is sufficient irrespective of its manner of creation into a useable format – Labour Court Rule 7A(2)(b). JR 1876/21 Van Straaten v Wehnke NO and Others (JR 1876/21) [2023] ZALCJHB 269 (12 September 2023) "[7] Having said that, a poignant issue that is pointedly raised in this matter is whether an impecunious litigant should be denuded of its right to a review as guaranteed in section 145 (1) of the LRA simply because that litigant cannot afford to pay for the transcription of the record of proceedings. This matter fulcrum on the proper interpretation of rule 7A (7) of the Labour Court Rules[6]. In terms of subrule (6) of Rule 7A, an applicant for review is obligated to furnish the registrar and each of the other parties with a copy of the record or portion of the record, as the case may be. In terms of subrule (7) of the same rule, the following obtains: ‘(7) The costs of transcription of the record …must be paid by the applicant and then becomes the costs in the cause.’ [Own emphasis]" [31] In summary, a transcription produced from an electronic record provided to the registrar of the Labour Court by a body contemplated in rule 7A (2) (b) of the Labour Court is sufficient irrespective of its manner of creation into a useable format. An applicant for review is the primary beneficiary of a record of review. A respondent is not barred from placing before Court a record it believes to be authentic. It must be remembered that a respondent also has a duty to ensure that a proper record is placed before a Court of review.[17] The contention that because the transcript has not been generated by a professional transcriber, then an incomplete record has been availed is not only against the principles discussed in this judgment, it is preposterous to the extreme. A transcription, irrespective of its manner of creation, completes a record of the proceedings sought to be reviewed and set aside. Accordingly, the present motion is doomed to fail. the commissioner’s arbitration award was one which could reasonably be made. In this case, the Labour Court correctly pointed out that the question was, in the main, whether the commissioner considered and applied his mind to all the evidence presented before him and arrived at a conclusion that was reasonable. JA90/22 Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA90/22) [2024] ZALAC 29; [2024] 8 BLLR 881 (LAC) (13 June 2024) "Head of Department of Education v Mafokeng and Others[[2014] ZALAC 50; [2015] 1 BLLR 50 (LAC) at para 33.] in which this Court said: ‘Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator’s conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.’" Section 158(1B) piecemeal review JR 604/23 South African Airways (SOC) Limited v South African Cabin Crew Association obo Members and Others (JR 604/23) [2024] ZALCJHB 19; (2024) 45 ILJ 887 (LC) (5 January 2024) 68. The unions referred to the case of Ngobeni v Prasa Cres and others[32] in which the Labour Court dismissed an urgent application to postpone a disciplinary hearing pending a review of a presiding officer’s points in limine rulings (relating to bias and recusal). The court explained why it should be slow to intervene in incomplete arbitration proceedings: the first reason is policy related in that intervention would undermine the informal nature of the system of dispute resolution; the second reason is that reviews on a piecemeal basis would frustrate the expeditious resolution of labour disputes. The court referred to the case Trustees for the time being of the Bioinformatics Network Trust v Jacobson and others[33] and its conclusion that “…justice would be advanced rather than frustrated by permitting CCMA arbitration proceedings to run the course without intervention by this court.”[34] 83. The section 158 (1B) point made by the unions is noted, and would ordinarily have merit, except that when one considers the facts of this case it is more arguable than not that it would be just and equitable to review the commissioner’s decision not to dismiss the matter. In Ntombela & others v United National Transport Union & others[39] the Labour Court upheld the principle that it could review a ruling before the finalisation of arbitration proceedings at the CCMA if it was “just and equitable” to do so.[40] The Ngobeni case which the unions rely on for its argument that the Labour Court should not intervene before an arbitration is complete is factually distinguishable. In that case the employee sought the court’s intervention on spurious grounds – for example that the presiding officer was biased because he was paid by the employer to chair the enquiry. SAA’s case in contrast has merit. 85. The power to dismiss arises from sections 138(1) and 138 (9)(b) of the LRA. Section 138(1) refers to the obligation on the commissioner to determine the dispute “fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.” Section 138(9) (b) enjoins a commissioner to make an award “that gives effect to the provisions and primary objects of this Act.” One of the primary objects of the LRA set out in section 1(d)(iv) is the “effective resolution of labour disputes’. One of the characteristics of effectiveness, is that of “expeditious”. 88. In summary, I am of the view that the commissioner committed a material error of law when he held that he did not have the power to dismiss the matter. Sections 138(1) and (9) read with section 1(d)(iv) gives him that power. Ferreira was the precedent setting case clarifying the legal position. His inadvertent reliance on Solomons was clearly misplaced. All in all he should have exercised the power that he had, in favour of SAA, noting the duration of the union’s delay, their lack of diligent preparation for the case, and the prejudice that SAA suffered preparing repeatedly for an arbitration (six set downs over 19 months) which failed to “fly”. procedural unfairness: appointment of an external Presiding Officer JR 328/21 Mariemuthoo v Matshaka N.O and Others (JR 328/21) [2024] ZALCJHB 4 (15 January 2024) "[47] The Labour Appeal Court in Highveld District Council v CCMA and others[[2002] 12 BLLR 1158 (LAC) at 1162 at para 16.] dealt with the consequences of a deviation from a Disciplinary Code in a pragmatic manner. The LAC held: ‘… The mere fact that the procedure is an agreed one does not, however, make it fair. By the same token, the fact that an agreed procedure was not followed, does not in itself mean that the procedure actually followed was unfair” …’ [48] The applicant has failed to set out why he was prejudiced by the appointment of an external Presiding Officer or demonstrated how this impacted on his right to a procedurally fair hearing. " Commissioner watered down charge from gross negligence to negligence and contradicted earlier finding JR2223/23 South African Revenue Service v Commission for Conciliation, Mediation and Arbitration (JR2223/23) [2024] ZALCJHB 69; (2024) 45 ILJ 1077 (LC) (26 January 2024) Gross negligence – Fictitious transactions leading to financial loss – Commissioner found dismissal procedurally and substantively unfair – Review – Alleges arbitrator failed to properly evaluate evidence – Commissioner watered down charge from gross negligence to negligence and contradicted earlier finding – Not commissioner’s role to alter charge – Failed to consider gravity of charge – Committed an irregularity that distorted outcome – Dismissal procedurally and substantively fair. 17] There is no basis, on the totality of evidence before him, as considered by him, to alter the charge. It is not the commissioner’s role to alter the charge. The commissioner’s role in resolving a dispute is to properly construe the nature of the charge. He is then to properly consider the evidence before him and is to make a finding that is justifiable on the totality of evidence before him. Set aside if both the reasons and the result are unreasonable JR1367-23 Worldwide Staffing (Pty) Ltd v Metal And Engineering Industries and Others (JR1367-23) [2024] ZALCJHB 67; (2024) 45 ILJ 1128 (LC) (12 February 2024) "[12] In Quest Flexible Staffing Solutions (Pty) Ltd (a division of ADCORP Fulfilment Services (Pty) Ltd) v Lebogate,[(2015) 36 ILJ 968 (LAC); [2014] ZALAC 136 at para 12.] the Labour Appeal Court appropriately summarised the test as follows: ‘[12] … Our courts have repeatedly stated that in order to maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrator’s award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator’s reasoning is found to be unreasonable, the result is nevertheless capable of justification for reasons other than those given by the arbitrator…’ " 25] Because he proceeded from the wrong premise, the Arbitrator misconstrued the nature of the enquiry. Had the Arbitrator properly applied his mind, he would have at least considered that a protected picket is meant to be an extension of collective bargaining, not a licence to intimidate or to simply tarnish an employer’s reputation. The slogans written on the placards were undoubtedly defamatory and aimed at creating a hostile and intimidating atmosphere. Upon contravention of the picketing rules, the picket lost its protected status.[5] These offensive slogans most probably contributed to the ensuing violence. So did crossing of the picketing lines. Security to satisfaction of court – Security provided in form of movable assets – Employee objects to security provided and urges court to reject it as unsatisfactory – No explanation how applicant would pay shortfall in event value of assets diminished – Security furnished is unsatisfactory and rejected – Applicant afforded an opportunity to provide security that satisfies court – Labour Relations Act 66 of 1995, s 145(7). J145/24 Bhekani Abantu Services (Pty) Ltd v Redelinghuys and Others (J145/24) [2024] ZALCJHB 102; (2024) 45 ILJ 1242 (LC) (4 March 2024) Prejudice in review applications JR 2289/2021 "[56] It was held in Thilivali that when it comes to the issue of prejudice, the applicant in fact has to show that a miscarriage of justice will occur if his or her case is not heard." Labour Court may review any decision taken or any act performed by the State in its capacity as employer, on such grounds as are permissible in law DA1/2022 Nzimande and Another v Newcastle Municipality (DA1/2022) [2024] ZALAC 34; [2024] 11 BLLR 1120 (LAC) (10 July 2024) [14] The principle of legality requires all exercises of power to be, at a minimum, lawful and rational.[14] The conduct of a public official must not be mala fide or based on ulterior or improper motives. A court is obliged to intervene on review if an official did not apply their mind or exercise their discretion at all, or if they disregarded an express provision of a statute.[15] [15] In proceeding as he did, Mr Mswane ignored the resolution.[16] By doing so, he contravened the Local Government: Municipal Systems Act[17] (Act). Section 55 of the Act provides that municipal managers are the head of the municipality’s administration. They are responsible and accountable for the appointment of certain staff, but this is subject to the policy directions of the council.[18] The Supreme Court of Appeal (per Nugent JA) has explained the relationship between municipal councils and municipal managers as follows:[19] [18] As there is no prescribed time limit for launching a review under s 158(1)(h) of the LRA, there was no need for the Municipality to apply for condonation before the Labour Court.[22] The Constitutional Court has confirmed that a court should be slow to allow procedural obstacles to prevent it from considering a challenge to the lawfulness of an exercise of public power. Review proceedings must nevertheless be instituted within a reasonable time. review test, the result of the award has to be so egregious that, as the test requires, no reasonable person could reach such a result DA 9/23 AJ Charnaud and Company v SACTWU obo Members and Others (DA 9/23) [2024] ZALAC 33; [2024] 10 BLLR 1016 (LAC); (2024) 45 ILJ 2257 (LAC) (17 July 2024) Makuleni v Standard Bank of South Africa [2023] ZALAC 4; (2023) 44 ILJ 1005 (LAC). where Sutherland JA said the following: "‘… The court asked to review a decision of commissioner must not yield to the seductive power of a lucid argument that the result could be different. The luxury of indulging in that temptation is reserved for the court of appeal. At the heart of the exercise is a fair reading of the award, in the context of the body of evidence adduced and an even-handed assessment of whether such conclusions are untenable. Only if the conclusion is untenable is a review and setting aside warranted.’ And further: ‘To meet the review test, the result of the award has to be so egregious that, as the test requires, no reasonable person could reach such a result.’[6] " Factors to be considered by the Labour Court when considering remitting a dispute back to the CCMA restated. The doctrine of separation of powers JA60/23 Phakoago v SANCA Witbank Alochol and Drug Help Centre and Others (JA60/23) [2024] ZALAC 44 (18 September 2024) 41] In National Union of Metalworkers of South Africa v Commission for Conciliation, Mediation and Arbitration and Others[National Union of Metalworkers of South Africa v Commission for Conciliation, Mediation and Arbitration and Others [2021] ZACC 47; (2022) 43 ILJ 530 (CC) (NUMSA).], the Constitutional Court, after noting the wide discretion the Labour Court has in determining a dispute, cautioned against the Labour Court readily substituting its decision for that of the commissioner. The underlying consideration of the caution relates to the risk of the hasty use of discretion undermining the doctrine of separation of powers. The doctrine of separation of powers is critical in this regard because otherwise, the Labour Court could usurp the powers assigned to commissioners of the CCMA. It was for this reason that the Constitutional Court held that the Labour Court should exercise a measure of judicial deference and only substitute decisions in exceptional circumstances.” It went further and stated that “judicial deference should not be interpreted to mean that the Labour Court does not have the power to substitute… arbitration awards”.[11] "[42] In Trencon Construction (Pty) Ltd v Industrial Development Cooperation of South Africa Ltd and Another[[2015] ZACC 22; 2015 (5) SA 245 (CC) at para 47.], the Constitutional Court held that the factors to take into account in considering whether to exercise the discretion to substitute the decision of an administrator are the following: ‘To my mind, given the doctrine of separation of powers, in conducting this enquiry there are certain factors that should inevitably hold greater weight. The first is whether a court is in as good a position as the administrator to make the decision. The second is whether the decision of an administrator is a foregone conclusion. These two factors must be considered cumulatively. Thereafter, a court should still consider other relevant factors. These may include delay, bias or the incompetence of an administrator. The ultimate consideration is whether a substitution order is just and equitable. This will involve a consideration of fairness to all implicated parties. It is prudent to emphasise that the exceptional circumstances enquiry requires an examination of each matter on a case-by-case basis that accounts for all relevant facts and circumstances.’" "43] In Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[13], the court set out the circumstances in which the Labour Court would rather correct the decision than refer it back to the CCMA as being: ‘(i) where the end result is a foregone conclusion and it would merely be a waste of time to order the CCMA to reconsider the matter; (ii) where a further delay would cause unjustified prejudice to the parties; (iii) where the CCMA has exhibited such bias or incompetence that it would be unfair to require the applicant to submit to the same jurisdiction again; or (iv) where the court is in as good a position as the CCMA to make the decision itself.’" "44] In Auto Industrial Group (Pty) Ltd and Others v Commission for Conciliation, Mediation and Arbitration and Others[[2018] ZALCPE 41; (2019) 40 ILJ 550 (LC) at para 60.], the Court held that: ‘A court will ordinarily substitute the decision of a commissioner where all of the available evidence is before the court and little purpose would be served in a rehearing.’" Compulsory arbitrations: [5] Section 188A(8) of the LRA provides that the ruling of an arbitrator in an inquiry has the same status as an arbitration award, and that the provisions of sections 143 to 146 of the LRA apply. JR1575/21 Musawenkosi Mkhwanazi v Tokiso Dispute Settlement (Pty) Ltd (JR1575/21) [2024] ZALCJHB 271 (5 July 2024) "[2] I directed the parties to the decision in Volkswagen SA (Pty) Ltd v Koorts NO and others [2] and to consider if this was the correct review test to be applied. [3] In Volkswagen the Court found that the parties could validly charge the arbitrator with the injunction to hear the matter as would a Commissioner of the Commission for Conciliation, Mediation and Arbitration (CCMA). The parties could not however review their matter on broader grounds than those in section 33 of the Arbitration Act[3] and could not prescribe to the Labour Court how it should review the award.[4] The Court was bound to follow the narrow grounds set out in section 33 of the Arbitration Act, and to act in accordance with the legal position as set out in Telcordia Technologies Inc v Telkom SA Ltd[5] and Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another[6]. " "There is no private arbitration agreement entered into between the parties and Tokiso is (and was at the relevant point in time) an accredited organisation/agency to conduct an inquiry by arbitrator in terms of section 188A of the Labour Relation Act[7] (LRA). [5] Section 188A(8) of the LRA provides that the ruling of an arbitrator in an inquiry has the same status as an arbitration award, and that the provisions of sections 143 to 146 of the LRA apply. [6] Accordingly, section 145 of the LRA, review of arbitration awards and the review test as set out in Sidumo[8] would find application ." "[7] Sidumo itself correctly distinguished between compulsory arbitrations and private arbitrations in the following terms: “Compulsory arbitrations in terms of the LRA are different from private arbitrations. CCMA Commissioners exercise public power which impacts on the parties before them. In the language of the pre-constitutional administrative law order, it would have been described as an administrative body exercising a quasi-judicial function. I conclude that a commissioner conducting a CCMA arbitration is performing an administrative action.”[9]" Review 2 stage test JR194/20 Ferroland Ground Trust (Pty) Ltd v Commission For Conciliation Mediation And Arbitration (JR194/20) [2024] ZALCJHB 273 (25 July 2024) "[29] This being a review as opposed to an appeal, the Labour Appeal Court (LAC) in Securitas Specialised Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[[2021] ZALAC 5; (2021) 42 ILJ 1071 (LAC) at paras 19 – 20.] stated the following in relation to the test on review: ‘[19] The test for review is this: “is the decision reached by the arbitrator one that a reasonable decision-maker could not reach?”[4] To maintain the distinction between review and appeal, an award of an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrator’s award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator’s reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons other than those given by the arbitrator. The result will be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator.[5] [20] This court has eschewed a piecemeal approach to a review application by the Labour Court. The proper approach is for the Labour Court to consider the totality of the evidence in deciding “whether the decision made by the arbitrator is one that a reasonable decision-maker could make”.’[6]" Question of jurisdiction should be decided before dispute is arbitrated – Pending finalisation of review proceedings, the arbitration is stayed: Section 158(1B) of the Labour Relations Ac J787/2024 City of Johannesburg Metropolitan Municipality v Mphefo and Others (J787/2024) [2024] ZALCJHB 287 (30 July 2024) "26] It is trite that the arbitrator or the SALGBC cannot assume jurisdiction where it does not exist, and they cannot decide their own jurisdiction – it is ultimately to be decided by this Court. [27] The Applicant seeks to challenge the ruling which determined that the SALGBC has jurisdiction and that the dispute be enrolled for arbitration. The reality is that the review application could be dispositive of the matter and could bring an end to the Respondent’s unfair dismissal claim. Should the review court find that the Respondent was not dismissed, the underlying causa (namely unfair dismissal) would be removed and the jurisdiction of the SALGBC to adjudicate the dispute will be ousted and the matter will go no further." "[34] The common sense approach determines that if the applicant is successful later on review and the findings confirm that the matter was not arbitrable, then the applicant would have not only incurred unnecessary expenditure and time but was forced to participate in proceedings it did not concede to. In this instance, the applicant is further prejudiced as it has not pleaded to the statement of claim in light of the dispute. The prejudice suffered by the applicant most certainly outweighs the prejudice the respondent would suffer if the arbitration proceedings are not stayed.’ " "[42] In National Gambling Board v Premier, Kwazulu-Natal and Others,[[2001] ZACC 8; 2002 (2) SA 715 (CC) at para 49.] the Constitutional Court considered interdict proceedings and held that: ‘An interim interdict is by definition “a court order preserving or restoring the status quo pending the final determination of the rights of the parties. It does not involve a final determination of these rights and does not affect their final determination.” The dispute in an application for an interim interdict is therefore not the same as that in the main application to which the interim interdict relates. In an application for an interim interdict the dispute is whether, applying the relevant legal requirements, the status quo should be preserved or restored pending the decision of the main dispute. At common law, a court’s jurisdiction to entertain an application for an interim interdict depends on whether it has jurisdiction to preserve or restore the status quo. It does not depend on whether it has the jurisdiction to decide the main dispute.’" [9] As a general principle, the applicant in a review application must make out his or her case in the founding affidavit, as may be supplemented by a supplementary affidavit, if necessary, after the transcribed record becomes available. JR 1209/2020 IPP Mining and Materials Handling (Pty) Ltd v The Commission for Conciliation, Mediation and Arbitration and Others (JR 1209/2020) [2024] ZALCJHB 294 (2 August 2024) "[13] Grounds for review cannot be formulated for the first time in heads of argument. In Northam Platinum Ltd v Fganyago NO and others[5] it was held that: ‘In my view the law is very clear that a ground for review raised for the first time in argument cannot be sustained. The basic principle is that a litigant is required to set out all the material facts on which he or she relies in challenging the reasonableness or otherwise of the commissioner's award in his or her founding affidavit.’" 20] The first difficulty relates to the test to be applied. The test to be applied in casu is the one of reasonableness. The Applicant must show that ultimately, considering the evidence placed before him, the arbitrator arrived at an unreasonable result. determination of whether a decision is unreasonable JR736/22 AMCU obo Mtya v Commission for Conciliation Mediation and Arbitration and Others (JR736/22) [2024] ZALCJHB 301 (12 August 2024) 31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependent on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in section 6 of the Promotion of Administrative Justice Act (“PAJA”); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously, etc. The court must nonetheless still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in the light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues. [32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted section 145 of the LRA, confining review to “defects” as defined in section 145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something more is required. just and equitable to intervene and review an interlocutory arbitration ruling of a commissioner by the Labour Court JA98/22 Moolman v Commission For Conciliation, Mediation and Arbitration and Others (JA98/22) [2024] ZALCJHB 339 (22 August 2024) " [30] The first category of discretion, which is sometimes referred to as discretion in a true sense, discretion in a strict sense or unfettered discretion, is characterised by the repository's power to choose between various permissible courses or options when deciding on an issue or exercising power.G106:O106" [31] It is generally accepted that where the repository of power has performed his or her function of choosing among the available options or courses, the appeal court would not be entitled to interfere with such an exercise of discretion by substituting that option with its preferred option. In other words, in the court below or in the case of a review of a ruling in mediation or arbitration proceedings, the commissioner is free to decide which of the available and permissible options or courses he or she would adopt. "[32] The definition of discretion, in the true sense, was formulated as follows in Media Workers Association of South Africa and Others v Press Corporation of SA Ltd [7] and accepted by the Constitutional Court in Trencon Construction: “The essence of a discretion in this narrower sense (the true sense) is that, if the repository of the power follows any one of the available courses, he would be acting within his powers, and his exercise of power could not be set aside merely because a Court would have preferred him to have followed a different course among those available to him.”" 33] This means that a discretion, in the true sense, is exceptionally appealable. In other words, the appeal court would only be justified to interfere with the exercise of power by the lower Court if it is satisfied that the discretion was exercised (1) capriciously or (2) upon wrong principles, or (3) the discretion was not exercised in an unbiased manner.[8] "[34] In Naylor and Another v Janson[9] the Supreme Court of Appeal (SCA) held that: “Where the law has given a judge an unfettered discretion, it is not for this court (the SCA) to lay down rules which, whilst purporting to guide the judge, will only have the effect of fettering the discretion. If, therefore, there are factors which the trial court, in the exercise of its discretion, can and legitimately does decide to take into account so as to reach a different result, a court on appeal is not entitled to interfere ─ even although it may or even probably would have given a different order.” [35] The Constitutional Court made the same point in Florence v Government of the Republic of South Africa[10] (CC) as follows: “Where a court is granted wide decision-making powers with a number of options or variables, an appellate court may not interfere unless it is clear that the choice the court has preferred is at odds with the law. If the impugned decision lies within a range of permissible decisions, an appeal court may not interfere only because it favours a different option within the range. This principle of appellate restraint preserves judicial comity. It fosters certainty in the application of the law and favours finality in judicial decision-making.”" "[37] In contrast to the standard of appealability in the first category, the restrictions applicable in that category do not apply to the second category, discretion in the loose sense, in that an appeal Court has authority, in general, to substitute the decision of the lower court with its own if it concludes that the discretion was wrongly exercised. The discretion in the loose sense is sometimes referred to as discretion in the narrow sense. In M R v N R[12] discretion in the loose sense is described as follows: “24 Where a discretion in a loose sense applies, an appellate court is equally capable of determining the matter in the same manner as the court of first instance and can therefore substitute its own exercise of the discretion if it considers that the order of the first instance court was wrong.”" [40] The general rule of labour law practice, which finds application in both civil and criminal proceedings, is that the Labour Court is discouraged from reviewing any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the CCMA or bargaining councils before the main issue in dispute is finally resolved. The exception to the general rule is that the Labour Court may review such a decision or ruling if it deems it just and equitable to do so. "43] It should be noted that the legislature did not introduce a total prohibition on reviews of interlocutory rulings in arbitration and mediation proceedings but rather allowed for an exception to the general rule. As a matter of principle, interference in uncompleted arbitration proceedings through review is only permissible in exceptional circumstances. The requirement to intervene in exceptional circumstances is underpinned by the legislative policy requiring speedy finalisation of labour disputes, which dictates that the court should not interfere with incomplete proceedings but allow a hearing to run its course. This underscores the importance of the Court's role in ensuring a fair and just resolution, which should strike a balance between the interests of all parties involved. The correct approach to adopt in this regard was set out in South African Broadcasting Corporation (SOC) Limited v Commission for Conciliation Mediation and Arbitration and Others[16] as follows: “A case must be truly exceptional to warrant a departure from the norm that a review is appropriate only once the dispute has been finally determined in a completed arbitration hearing. This is consistent with the statutory purpose of expeditious dispute resolution, which the LRA seeks to achieve.”" "[47] In State Information Technology Agency (SITA) v Commission for Conciliation Mediation and Arbitration,[19] the court correctly intervened when the commissioner erred in ordering the discovery of a privileged document. The harm that the other party would have suffered had the court allowed the ruling to stand and the privileged documents to be disclosed is that damage would not be adequately addressed upon the conclusion of the main proceedings. The court intervened earlier because the document which the applicant sought to disclose was legally privileged. The court reviewed and set aside the ruling and declared that the applicant was not compelled to disclose the copy of the document required by the respondents. [48] Similarly, the Labour Court in South African Sports Confederation and Olympic Committee (SASCOC) v Commission for Mediation Conciliation and Arbitration and Others[20] the Labour Court intervened earlier on the ground that the document required by the respondent was patently irrelevant to the dispute." Security ordered to be furnished J822/24 Africabin Building Systems (Pty) Ltd v Mogaladi and Others (J822/24) [2024] ZALCJHB 345; (2024) 45 ILJ 2727 (LC) (6 September 2024) Security from employer – Failure to furnish in terms of award – Award orders employer to reinstate employee – Employer decides to challenge award by way of review proceedings – Employer must comply with provisions by furnishing security – Employee is entitled to execute award absent security – Company failed to prove that it would suffer any prejudice if ordered to furnish security – Security ordered to be furnished – Labour Relations Act 66 of 1995, ss 145(7) and (8). "[5] In Bhekani Abantu Services (Pty) Ltd v Redelinghuys & others[2], this Court observed a worrying trend on the part of some employers who choose deliberately to disregard the security provisions. This trend and behaviour often leads to employees enforcing their rights, as they must, and then employers rushing to Court on an urgent basis to stay the enforcement of the award in terms of section 145(3) and simultaneously apply for exemption from furnishing security.[3] In Panorama Park Retirement Village v Commission for Conciliation, Mediation and Arbitration and Others[4], Tlhohlalemaje J expressed his frustration with this trend. He said the following: ‘Sadly, it has become a practice in this court for parties seeking a review of unfavourable arbitration awards, to simply file such applications without furnishing the security required, and to only put an obscure prayer somewhere in the pleadings, seeking to be absolved from payment of security. In some instances, reviewing parties do not even make an attempt to be absolved from payment of security, and simply close their pleadings and request a set down date. It is appreciated that opposing parties in review applications can raise non-payment of security as preliminary point in the answering affidavit. Be that as it may, in most instances, as is in this case, it is only after a year or three when the matter comes before the court, that these preliminary points are addressed. By then, the reviewing party has, by default, been absolved from payment of security. The above practices are an affront on the very purpose of the provisions of s 145(7) and (8) of the LRA, and must come to an end. The purpose of these provisions is essentially to dissuade employers in particular from bringing frivolous review applications with no prospects of success and ensure that they are timeously and expeditiously prosecuted.’[5]" "City of Johannesburg v SA Municipal Workers Union on behalf of Monareng & another[6] (City of Johannesburg). [12] However, the City of Johannesburg judgment does not advance the company’s proposition that proof of adequate or sufficient assets is the overriding requirement in the enquiry whether to exempt an employer from furnishing security. What is clear from this judgment is that employers who seek to be exempted from furnishing security must show good cause and make the necessary averments for such relief in their founding papers. [13] The LAC continued that: ‘In Rustenburg Local Municipality, the Labour Court held as follows in relation to what good cause entails: “Good cause in the context of motivating a departure from the security provisions prescribed in s 145(7) and (8) would involve a proper explanation why this request should be entertained, with particular emphasis on any material prejudice the applicant may suffer if it is not granted this relief. I will illustrate the point by way of an example. A small manufacturing business with 20 employees dismisses 10 employees for group misconduct. A CCMA commissioner then reinstates all these employees. The required security would be 24 months’ salary for each of these ten employees, which would then wipe out the entire operating cash flow of the undertaking for several months. This is the kind of prejudice I am referring to. Simply described, the explanation cannot be that it will be hard to set security, but the explanation must be that it would be unduly onerous and harmful to be required to set the prescribed security.” Material prejudice to the employer is but one factor that the Labour Court must give consideration to - it is by no means decisive. In exercising its discretion, the Labour Court must have regard to the particular circumstances of the case as well as considerations of equity and fairness to both the employer and the employee. A factor that the Labour Court must take into consideration is whether the employer is in possession of sufficient or adequate assets to meet an order of the review court upholding the arbitration award; the principal concern being that the dismissed employee should not be left unprotected if the Labour Court decides the review application in his or her favour. The onus is on the employer seeking an exemption from furnishing security under s 145(8) of the LRA to establish that it has assets of a sufficient value to meet its obligations should the arbitration award be upheld by the Labour Court on review. On a purposive or contextual construction, s 145(7) and (8) of the LRA must be construed as requiring all employers - whether in the public or private sectors - to provide security. I accordingly support the position adopted in Rustenburg Local Municipality that all employers whether in the public or private sector should be subject to the same requirement of providing security.’[7]" 20] During the hearing, I made it clear to Mr Naidoo, appearing on behalf of the company, that based on the pleadings, I was not inclined to grant full exemption and urged him to take instruction on the amount of security the company would furnish. This was raised in light of the fact that in its alternative relief, the company requested the Court to determine reasonable security. The company offered to furnish security in the amount of R272 000.00, which is the equivalent of backpay awarded to the employee in terms of the award. Having considered the papers and submissions, it was my view that fairness and equity to both parties required payment of 50% of the equivalent of 24 months’ remuneration. Accordingly, I ordered that security equivalent to 12 months’ remuneration (R408 000.00) be furnished. award compensation in terms of section 193(1)(c) of the LRA is reviewable, JR23/23 Odayar v Wilkes N.O and Others (JR23/23) [2024] ZALCJHB 350 (9 September 2024) [39] The decision to award compensation in terms of section 193(1)(c) of the LRA is reviewable, and what is relevant is whether a reasonable decision maker would have arrived at that decision.[26] However, the decision as to the amount of compensation, awarded in terms of section 194(1), constituting the exercise of a narrow discretion, requires that this Court ascertain whether a limited ground for interference exists before it can vary the quantum. [40] The assessment of what the employee should have received must, in turn, require the Court to examine factors such as the employee’s length of service with the employer, his or her prospects of finding alternative employment, the financial position of the employer, and so on.[28] not open ... to rely on the provisions of section 158(1)(h) of the LRA, which would be the only possible avenue available to it in terms of which to pursue a review application with regard to any decision by the Municipality, instead of the remedies specifically available to it under the LRA. 2024/107100 Democratic Municipal and Allied Workers union of South Africa (DEMAWUSA) obo Members v Bushbuckridge Local Municipality South African Local Government (2024/107100) [2024] ZALCJHB 413 (23 October 2024) "36] Thus, and in my view, it is not open to DEMAWUSA to rely on the provisions of section 158(1)(h) of the LRA, which would be the only possible avenue available to it in terms of which to pursue a review application with regard to any decision by the Municipality, instead of the remedies specifically available to it under the LRA. It is only where relief cannot be obtained under any other provision of the LRA that the review jurisdiction of this Court in section 158(1)(h) would come into play.[31] But this is not the case in casu. [37] Therefore, it is my view that it is not competent for DEMAWUSA to approach the Labour Court directly on review, seeking to review and set aside what is nothing more than action taken by the Municipality which, at best for DEMAWUSA, would be a breach of the recognition agreement. That being so, then what should DEMAWUSA then have done? The answer lies in the following dictum in Health and Other Services Personnel Trade Union of SA on Behalf of Tshambi v Department of Health, KwaZulu-Natal[32]: ‘… Logically, a dispute requires, at minimum, a difference of opinion about a question. A dispute about the interpretation of a collective agreement requires, at minimum, a difference of opinion about what a provision of the agreement means. A dispute about the application of a collective agreement requires, at minimum, a difference of opinion about whether it can be invoked. …’" Summary: review of arbitration award – arbitrator ignoring application for rescission of a prior ruling and proceeding to hear the matter on its merits – decision to proceed in the circumstances constituting misconduct in relation to his duties as arbitrator, and unreasonable. Award set aside and remitted. J986/2022 " Bosch Uniform Supplies CC v SACTWU obo Marima and Others (J986/2022) [2024] ZALCJHB 420 (4 November 2024)" jurisdiction of CCMA JR101/2023 Mpe v Polokwane Local Municipality and Others (JR101/2023) [2024] ZALCJHB 426 (7 November 2024) [25] ‘Reasonableness’ finds no application in casu. I already alluded to the test to be applied in an application such as this one supra. "[26] In NUMSA obo Zahela and 3 others v Volkswagen SA (Pty) Ltd and others[Unreported judgment case no: PR 137/13, delivered on 18 November 2016 at paras 6 – 8.] (Zahela), an application for review was dismissed where the applicant incorrectly relied on ‘reasonableness’ instead of ‘correctness’ and it was held that: ‘[6] In other words, reasonableness ordinarily has no place in a review where the enquiry is whether or not the CCMA had jurisdiction. This is an assessment that must be made objectively, having regard to the facts placed before the commissioner. It amounts to a determination of whether the commissioner’s decision was correct. [7] It follows that in a matter such as the present, where the proper right of review is one based on correctness that is the case that must necessarily be pleaded. The applicant, mistakenly, has pleaded on the basis of an attack on the reasonableness of the arbitrator’s decision. Mr Niehaus, who appeared for the applicant, did not dispute that the applicant had sought intervention on a basis that was incorrect. He requested the court to postpone the matter and to grant the applicant leave to file amended papers in order to address the error. [8] There are a number of considerations that compelled me to conclude that a postponement and the concomitant further delay in the resolution of these proceedings was not appropriate in the circumstances. First, as I have indicated, the fact of the matter is that the applicant has approached this court on the basis of pleadings that posit the incorrect test. All of the submissions in the founding papers, to the extent that they suggest that the arbitrator failed to appreciate the nature of the enquiry that she was to conduct and that her decision fell outside of the band of decisions to which reasonable people could come on the available material, are irrelevant. The applicant would be obliged to make out an entirely new case for review. The present situation is not dissimilar to that where a plaintiff elects the wrong cause of action to pursue his or her claim. It is not open to a plaintiff, generally speaking, in those circumstances simply to seek to remove the matter from the trial roll and introduce a new cause of action.’" Test for review JR1303/2020 Bidvest Panalpina Logistics Now Bidvest International Logistics v Commission for Conciliation Mediation and Arbitration and Others (JR1303/2020) [2024] ZALCJHB 425 (8 November 2024) "[19] The test for review of arbitration awards was comprehensively set out by the Labour Appeal Court (LAC) in Makuleni v Standard Bank of SA Ltd and others[[2023] 4 BLLR 283 (LAC) at paras 3 and 4.] wherein it was held that: ‘[3] The critical approach to reviews that turn on 'unreasonableness' was articulated by Murphy AJA in Head of Department of Education v Mofokeng & others at paras [30] to [33]. The significant passages are emphasized: [30] The failure by/an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (the SCA) in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curia) and this court in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome. [31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependent on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of interrelated questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in s 6 of the Promotion of Administrative Justice Act (PAJA); such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant& considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously, etc. The court must nonetheless still consider whether apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in the light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that it is not only the reasonableness of the outcome which is/subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the enquiry or undertake the enquiry in a misconceived manner. There must be a fair trial of the issues. [32] However, sight may not be lost of the intention of the legislature to restrict the scope of review when it enacted s 145 of the LA, confining review to 'defects' as defined in S/145(2) being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. Review is not permissible on the same grounds that apply under PAJA. Mere errors of fact or law may not be enough to vitiate the award. Something, more is required. To repeat flaws in the reasoning of the arbitrator evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived enquiry or a decision which no reasonable decision maker could reach on all the material that was before him or her. [33] Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the enquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator's conception of the enquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesis be material to the determination of to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to fine determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.” [4] The import of these remarks demands reflection in order to digest the essence of the exercise that a commissioner embarks upon. The court asked to review a decision of commissioner must not yield to the seductive power of a lucid argument that the result could be different. The luxury of indulging in that temptation i.e. reserved for the court of appeal. At the heart of the exercise is a fair reading of the award, in the context of the body of evidence adduced and an even-handed assessment of whether such conclusions are untenable. Only the conclusion is untenable is a review and setting aside warranted.’ " "See: Sidumo and another v Rustenburg Platinum Mines Ltd and others [2007] ZACC 22; [2007] 12 BLLR 1097 (CC) at para 110; Super Group Autoparts t/a AutoZone v Hlongwane NO and others [2009] ZALCJHB 68; [2010] 4 BLLR 458 (LC) at 461 8E; Manana v Department of Labour and others [2010] ZALAC 26; [2010] 6 BLLR 664 at 668 20F; NUM and another v Samancor Ltd (Tubatse Ferrochrome) and others supra, Afrox Healthcare Ltd v Commission for Conciliation Mediation and Arbitration and others [2012] ZALAC 2; [2012] 7 BLLR 649 (LAC) at 657 21D-I; Herholdt v Nedbank Ltd (Congress of South African Trade Unions as “amicus curiae”) [2013] ZASCA 97; [2013] 11 BLLR 1074 (SCA) at 1084 24C-D; Goldfields supra; Derivco (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration [2014] ZALCJHB 257; [2014] 10 BLLR 1000 (LC) at 1007 37B; Shoprite Checkers v CCMA [2015] 10 BLLR 1052 (LC) at 1056E-H 9-10; Mbatha v Safety and Security Sectoral Bargaining Council JR372/13 [2015] ZALCJHB 332 (30 September 2015) at para 25; Head of the Department of Education v Mofokeng and others [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC) at paras 60 – 61; Kock v Commission for Conciliation, Mediation and Arbitration and Others (2019) 40 ILJ 1625 (LC) at para 27; and Ethekwini Municipality v Hadebe and others [2016] ZALAC 14, [2016] 8 BLLR 745 (LAC) at para 20. Belloord 28 CC v CCMA Johannesburg [2019] JOL 42664 (LC) at para 10." the Applicant was paid in accordance with the terms of the arbitration award and he had kept the money so paid without any tender to pay it back JR2313/16 Maake v Commission for Conciliation, Mediation and Arbitration and Others (JR2313/16) [2024] ZALCJHB 481 (25 November 2024) "[56] The doctrine of pre-emption is well established in our law and was explained in Hlatshwayo v Mare and Deas[1912 AD 242.] as follows: '[A]t bottom the doctrine is based upon the application of the principle that no person can be allowed to take up two positions inconsistent with one another, or as it is commonly expressed to blow hot and cold, to approbate and reprobate.'" [57] The concept of per emption is based on the general notion that a litigant has an election to make: either to accept or to reject the outcome of the judgment or the arbitration award. As a general rule a party that pre-empts the arbitration award would not be entitled subsequently to challenge that arbitration award. The basic requirement, however, to sustain a claim of per emption entails having to show that the acceptance of the outcome of the arbitration award expressly or by conduct was unequivocal. 59] This conduct of the Applicant when he accepted and retained the money paid as compensation, does not support an objective intention to challenge the award and is inconsistent with such intention. The money he kept was compensation payable in terms of the arbitration award and by accepting and retaining it, he accepted it to be the outcome of the arbitration. private arbitration proceedings agreed to: Section 33(1) provides three grounds for setting aside an arbitration award: misconduct by an arbitrator; gross irregularity in the conduct of the proceedings; and the fact that an award has been improperly obtained....[16] In short: by agreeing to refer their dispute to private arbitration the parties limit interference by court to the grounds of procedural irregularities as set out in section 33(1) of the Arbitration Act. JR570/2023 Matiko v Friedman N.O and Another (JR570/2023) [2024] ZALCJHB 473 (28 November 2024) "[7] However, the arbitration award sought to be reviewed in casu was issued in consequence of a private arbitration agreement between the parties and the review of private arbitration awards is governed by section 33 of the Arbitration Act[3]. Thus, the award may only be reviewed in terms of the provisions of section 33 of the Arbitration Act. [8] The difference between a review application pursued in terms of the LRA and the Arbitration Act has been recognised and emphasized by the courts, as is evident from several authorities." "9] In Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another[(CCT 97/07) [2009] ZACC 6; 2009 (4) SA 529 (CC) ; 2009 (6) BCLR 527 (CC).] the majority in the Constitutional Court held that: ‘The twin hallmarks of private arbitration are thus that it is based on consent and that it is private, i.e. a non-state process. It must accordingly be distinguished from arbitration proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of the Labour Relations Act 66 of 1995 which are neither consensual, in that respondents do not have a choice as to whether to participate in the proceedings, nor private. Given these differences, the considerations which underlie the analysis of the review of such proceedings are not directly applicable to private arbitrations.’ " "[10] The Constitutional Court in Mphaphuli further confirmed that the Sidumo test does not assist in the review of private arbitration awards and held that: ‘To return then to the question of the proper interpretation of section 33(1) of the Arbitration Act in the light of the Constitution. Given the approach not only in the United Kingdom (an open and democratic society within the contemplation of section 39(2) of our Constitution), but also the international law approach as evinced in the New York Convention (to which South Africa is a party) and the UNCITRAL Model Law, it seems to me that the values of our Constitution will not necessarily best be served by interpreting section 33(1) in a manner that enhances the power of courts to set aside private arbitration awards. Indeed, the contrary seems to be the case. The international and comparative law considered in this judgment suggests that courts should be careful not to undermine the achievement of the goals of private arbitration by enlarging their powers of scrutiny imprudently. Section 33(1) provides three grounds for setting aside an arbitration award: misconduct by an arbitrator; gross irregularity in the conduct of the proceedings; and the fact that an award has been improperly obtained. In my view, and in the light of the reasoning in the previous paragraphs, the Constitution would require a court to construe these grounds reasonably strictly in relation to private arbitration.’ " "[13] In SACCAWU and others v Pick ’n Pay Retailers (Pty) Ltd and others[7] (SACCAWU) the Court summarised the position in respect of the review of private arbitration as: ‘In short: in the case of a review of a private arbitration award, there exists little scope for a review going to the merits, as a private arbitrator has the right to be wrong.’" "[15] In Clear Channel Independent (Pty) Ltd v Savage NO and another[8] the applicant argued that the test to apply in assessing whether a private arbitration award is reviewable or not was that of a reasonable decision-maker as set out in Sidumo as the right to fair labour practices applied to all employees. The applicant further argued that Telcordia did not apply as the case before the SCA concerned a commercial dispute and not a labour dispute. The court held, with reference to the LAC judgments in Stocks that the wider review test under section 145 of the LRA did not apply to private arbitrations under section 33 of the Arbitration Act. It further held that as section 33 of the Arbitration Act did not distinguish between commercial and labour related disputes and therefore it could not be said that Telcordia did not apply. Accordingly, the Court found that the test set out in Telcordia[9] applied to the review of private labour arbitration disputes. The Court concluded that, by referring the dispute to private arbitration, the parties had limited interferences by the court to the grounds of procedural irregularities as set out in section 33 of the Arbitration Act. The test to apply is set out as follows: 'By agreeing to arbitration parties to a dispute necessarily agree that the fairness of the hearing will be determined by the provisions of the Act and nothing else. Typically, they agree to waive the right of appeal, which in context means that they waive the right to have the merits of their dispute relitigated or reconsidered. They may, obviously, agree otherwise by appointing an arbitral appeal panel, something that did not happen in this case. Last, by agreeing to arbitration the parties limit interference by courts to the ground of procedural irregularities set out in s 33(1) of the Act. By necessary implication they waive the right to rely on any further ground of review, ''common law' or otherwise. If they wish to extend the grounds, they may do so by agreement but then they I have to agree on an appeal panel because they cannot by agreement impose jurisdiction on the court.'" [31] In his founding affidavit the Applicant stated that the arbitrator arrived at conclusions and made findings that no reasonable commissioner could have arrived at and that his conclusions constituted gross irregularities in the proceedings. This statement is repeated in the Applicant’s heads of argument. It is ill-conceived – the test of reasonableness finds no application and a gross irregularity as provided for in the Arbitration Act is different from the Applicant’s understanding as to what would constitute such irregularity. The Applicant evidently seeks to attack the result of the arbitration when such is not permissible in private arbitration proceedings. CC- cross review CCT 13/24 Mothulwe v Labour Court, Johannesburg and Others (CCT 13/24) [2025] ZACC 10 (8 May 2025) the Arbitrator found that they had committed corruption….ross-review application challenging the Arbitrator’s finding that they committed an act of corruption (finding) that they be issued with a final written warning and that they should not be compensated or receive back-pay (sanction). [8]...He expanded upon this by pointing out that there were two reviews before the Labour Court, the one dealing with the finding of guilt (his cross-review) and the other with the sanction imposed (the main review), and that the Labour Court could not have only addressed the employer’s challenge to the sanction imposed without first addressing his challenge to the finding of guilt. In addition, he argued that there was no evidence that implicated him in the alleged act of corruption that would have warranted a finding of guilt by the Arbitrator. 5. The applicant’s cross review application in respect of the finding of guilt and the condonation application for the late filing thereof are referred to the Labour Court for determination by another judge. security bond (State) JA 44/2024 Director General Department of Forestry Fisheries and Environment and Another v Sheriff Pretoria North-East and Others (JA 44/2024) [2025] ZALAC 29 (12 May 2025) "[23] The respondents contended that the security bond was not ‘good’ for the purposes of section 145(7) of the LRA on the additional ground that the instrument does not specify an amount. The ‘security bond’ is a statement by the Department’s accounting officer that the Department will make good on the award, should the review fail. It was unnecessary to specify the Rand value of the amount for which Mr Manda will be made good. The security bond concerns the award. The amount in the award for which the Department is liable is ascertainable by simple arithmetic. " arbitrator brought an application to archive an application to review his or her award JR1897/20 Minister of Justice and Constitutional Development v General Public Service Sectoral Bargaining Council and Others (JR1897/20) [2025] ZALCJHB 47; (2025) 46 ILJ 1207 (LC) (11 February 2025) [40] In my view, the only interest an arbitrator has in the outcome of the review application is academic, or nominal, in that he or she was the arbitrator who made the award. An arbitrator’s nominal interest in a review of his or her award does not meet the requirements for locus standi to bring an application for substantive relief that would bring an end to the matter. The requirements for locus standi in judicio are that the party must have an adequate interest in the subject matter of the litigation; the interest must not be too remote; the interest must be actual; and the interest must not be hypothetical.[1] Ramabulana, having no personal interest in the outcome of the review application, had no locus standi to bring the archiving application. required to furnish security 2025/013668; 2025/013679 Pexmart CC v Commission for Conciliation, Mediation and Arbitration and Others (2025/013668; 2025/013679) [2025] ZALCJHB 67 (13 February 2025) [16] The common mistake made by both applicants is that they are of the view that they are required to furnish security amounting to 24 months’ remuneration plus the amount of backpay awarded by the commissioner. This is obviously a misapprehension of the security provisions because employers challenging a reinstatement award need only furnish security equivalent to the employee’s 24 months’ remuneration. Accordingly, in terms of section 145(8), Pexmart is expected to furnish security in the amount of R269 589.00, and Valard the amount of R318 884.80. [18] In African Building Systems (Pty) Ltd v Mogaladi and others[2], this Court lamented employers who continue to disregard the security provisions with impunity, and only elect to approach this Court when the employees exercised their right to enforce the awards. These are litigants, often represented by legal practitioners, who continue to disregard these security provisions. It is no doubt within their contemplation at the time of launching the review applications that if they do not furnish security or obtain an exemption from the Court, the employees will seek to enforce the award because section 145(7) states expressly that a review application does not suspend the enforcement of the award. incomplete record JR2295/23 Parsons Transport Operations (Pty) Ltd v Mkansi and Others (JR2295/23) [2025] ZALCJHB 71 (27 February 2025) "[29] In South African Social Security Agency v Hartley and others[4] this Court, per Prinsloo J, aptly pointed out that: “The keeping of a record of the arbitration proceedings is not only practical and required by the CCMA Rules, but is also necessary as it provides objective material about what transpired at the arbitration proceedings, which assists the court in the proper exercise of its review powers. As a general rule, it will always be necessary to have the record of the arbitration proceedings available to this Court when arbitration awards are reviewed under section 145 of the LRA.” " [30] The omitted record is material to the determination of this review application. Quite apart from the applicant’s duty to place the record or relevant portion thereof before the Court, a consideration of the issues for determination reveals why this obligation is particularly significant in this matter. I shall deal with only two examples in casu. [35] It is trite that the Court should not consider the merits of a review application where material portions of the record are not placed before the Court. In Fountas v Brolaz Projects (Pty) Limited and Others[7] the LAC pointed out that a Court in such circumstances is first required to consider whether the applicant in the review application has taken all reasonable steps to search for such evidence and or to reconstruct the record. "[38] Had the applicant taken the requisite steps to compel the third respondent to comply with its obligations to make the record available to this Court, this information would be known. If the record exists, it must obviously be placed before this Court. If the record does not exist, then there are other avenues which the applicant may pursue, including reconstruction. " 42] As Ms Kleynhans for the applicant ultimately requested in argument, I consider it to be appropriate that the application be postponed in order to allow the applicant further opportunity to make the necessary inquiries referred to above and to take such steps as might not have been taken earlier to place the record or a reconstructed record if necessary, before this Court. Incomplete

Arbitration Labour Law cases decided in the South African Courts (Highlights and updated 1997 to 12 2025 [Copyright: Marius Scheepers/16.5.1])   Arbitration awards, Commission for Conciliation Mediation and Arbitration, Private arbitration Arbitration awards Reason for dismissal, - Adjudicator not entitled off his own to decide 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, rather than to evaluate the fairness of the dismissal with reference to the actual ground relied on by the employer. JR 248/2011 Farmers Meat Supply v Mgwenya NO and Others     Not signing award before issuing. The court held that the statutory requirements for a final award had not been met and the commissioner was accordingly not functus officio on the issue of the retrospective application of the award. When he sent the email, did not intend to issue an award as he said that he was about to issue the award. electronic signature was without merit as there had not been compliance with s 13 of the Electronic Communications and Transactions Act 25 of 2002. DA7/2012) [2014] ZALAC 5 SAMWU v South African Local Government Association and Others   automatically unfair dismissal as envisaged by s 187(1)(c) of the LRA in that the purpose of the dismissal was to compel him to accept the contract of employment the respondent  imposed a restrictions or require him to pay the insurance excess amount should the vehicle be damaged in a collision. ignored the ultimatum and refused to sign the contract. It was unreasonable for the appellant to refuse to accept the respondents offer of employment on the basis of the terms as set out in the contract of employment,  was necessary for the respondents business requirements (JA63/11) [2014] ZALAC 6 Solidarity obo Wehncke v Surf4cars (Pty) Ltd   Section 147(6) of the LRA JR558/16 Naidoo v Liberty Holdings (JR558/16) [2019] ZALCJHB 56 (19 March 2019) "May refer to arbitration" [13]    The arbitrator correctly adhered to that the decision to actually refer the matter to private arbitration (or not to refer a dispute at all), lies with the applicant. Once the appropriate route is determined to be that of private arbitration, the CCMA steps aside and the aggrieved party has the recourse of private arbitration, if he so wishes to proceed with his dispute.   The statutory grounds of review and the test to apply. JR1909/12 Dlamini v Tshwane University of Technology and Others (JR1909/12) [2019] ZALCJHB 104 (15 May 2019) [45]       Although the grounds for review under the Arbitration Act are the same as those in section 145 of the Labour Relations Act, section 33 of the Arbitration Act does not incorporate considerations of reasonableness. Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC). The twin hallmarks of private arbitration are thus that it is based on consent and that it is private, i.e. a non-State process. It must accordingly be distinguished from arbitration proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of the Labour Relations Act 66 of 1995 which are neither consensual, in that respondents do not have a choice as to whether to participate in the proceedings, nor private. Given these differences, the considerations which underlie the analysis of the review of such proceedings are not directly applicable to private arbitrations.[50][46]       The Constitutional Court also held that " the values of our Constitution will not necessarily best be served by interpreting s 33(1) in a manner that enhances the power of Courts to set aside private arbitration awards. Indeed, the contrary seems to be the case.[51][47]       The Constitutional Court further stated that: Courts should be respectful of the intention of the parties in relation to procedure. In so doing, they should bear in mind the purposes of private arbitration which include the fast and cost-effective resolution of disputes. If Courts are too quick to find fault with the manner in which arbitration has been conducted, and too willing to conclude that the faulty procedure is unfair or constitutes a gross irregularity within the meaning of section 33(1), the goals of private arbitration may well be defeated.[52] Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA). [51]     Last, by agreeing to arbitration the parties limit interference by Courts to the ground of procedural irregularities set out in s 33(1) of the Act. By necessary implication they waive the right to rely on any further ground of review, common law or otherwise. If they wish to extend the grounds, they may do so by agreement but then they have to agree on an appeal panel because they cannot by agreement impose jurisdiction on the Court.[54][50]       In Telcordia supra it was further held that: An arbitrator has the right to be wrong on the merits of the case, and it is a perversion of language and logic to label mistakes of this kind as a misconception of the nature of the inquiry [55]Likewise, it is a fallacy to label a wrong interpretation of a contract, a wrong perception or application of South African law, or an incorrect reliance on inadmissible evidence by the arbitrator as a transgression of the limits of his power. The power given to the arbitrator was to interpret the agreement, rightly or wrongly; to determine the applicable law, rightly or wrongly; to determine what evidence was admissible, rightly or wrongly. Errors of the kind mentioned have nothing to do with him exceeding his powers; they are errors committed within the scope of his mandate. To illustrate, an arbitrator in a normal local arbitration has to apply South African law but if he errs in his understanding or application of local law the parties have to live with it. If such an error amounted to a transgression of his powers it would mean that all errors of law are reviewable, which is absurd.[56] Volkswagen SA (Pty) Ltd v Koorts NO and others 2011 (32) ILJ 1892 (LAC). " legally able to give effect to the parties' requirement that a private arbitrator render an award which is "rational and justifiable, or any other review standard for that matter. Unless the error thus vitiates the award a review Court is bound to measure the product of private arbitration proceedings against the narrow grounds of review encapsulated in the Arbitration Act of 1965" [58][52]       Harms JA in Telcordia supra referred to Dickenson & Brown v Fisher's Executors[59] where reference was made to the general principle that when parties select an arbitrator as the judge of fact and law, the award is final and conclusive, irrespective of how erroneous, factually or legally, the decision was unless the mistake was so gross and manifest that it could not have been made without some degree of misconduct or partiality, in which event the award would be set aside not because of the mistake, but because of misconduct.[60] Amalgamated Clothing and Textile Workers Union of South Africa v Veldspun (Pty) Ltd 1994 (1) SA 162 (A). " it is clear that the word [misconduct] does not extend to bona fide mistakes the arbitrator may make whether as to fact or law. It is only when a mistake is so gross or manifest that it would be evidence of misconduct or partiality that a Court might be moved to vacate an award: Dickenson & Brown v Fishers's Executors 1915 AD 166 at 174-81. It was held in Donner v Ehrlich 1928, WLD 159 at 161 that even a gross mistake, unless it establishes mala fides or partiality, would be insufficient to warrant interference[62] Stocks Civil Engineering (Pty) Ltd v Rip NO and Another [2002] 3 BLLR 189 (LAC). An error of law or fact may be evidence of the above in given circumstances, but may in others merely be part of the incorrect reasoning leading to an incorrect result.  In short, material malfunctioning is reviewable, a wrong result per se not (unless it evidences malfunctioning). If the malfunctioning is in relation to his duties, that would be misconduct by the arbitrator as it would be a breach of the implied terms of his appointment. [96] SACCAWU and Others v Pick 'n Pay Retailers (Pty) Ltd and Others [2012] 1 BLLR 71 (LC). Put differently, if an arbitrator was caused by inappropriate means to reach one conclusion whereas if he had adopted appropriate means he might have reached another conclusion favourable to the applicant, then the award is reviewable.[98] CCMA CCMA Biased In the present matter the commissioner had, despite the fact that both parties were legally represented, descended into the arena in a manner that gave rise to a suspicion of bias. The commissioner had elicited evidence from witnesses which he deemed would be beneficial to the employers case and he had cross examined the applicant and his witness in such a manner that he adduced evidence beneficial to the employer. The employee had in these circumstances been deprived of a fair hearing. (JR297/2009) [2014] ZALCJHB 76 Jansen v CCMA and Others   Biased in our law the existence of a reasonable suspicion of bias satisfies the test; and an apprehension of a real likelihood that the decision maker will be biased is not a prerequisite for disqualification. JR1516/07 South African Revenue Services v CCMA & Others   Biased Other case law sited BTR Industries SA (Pty) Ltd & Others v Metal & Allied Workers Union & Another 1992 (3) SA 673 (A)   Biased* balance of probabilities that a reasonable, objective and informed person in the position of the employer would apprehend that the commissioner had not brought an impartial mind to bear on the adjudication of the dispute, and, secondly, that the apprehension of the employer was based on reasonable grounds JA46/07 Mapurunyane v CCMA & Others   Biased BTR Industries   Consultation For Arbitration need valid conciliation J2411/98 Giofranco Hairstylists   Compensation Where offer was made to reinstate may deprive employee of compensation JA61/99 Mkhonto v Ford   Commissioner Duty to explain the arbitration processes J3304/98 Coin Security v Machago   Referral form Signature Any validly authorised person mya sign, not labour consultant J487/99 NUMSA v CCMA   Certificate when to challenge the validity made timeously when certificate was issued and not when effects of valid decision given DA25/99 Fidility Guards Holdings v Epstein   Bargaining Council enforcing collective agreement against non-parties same as to parties DA1015/99 Kem-Lin Fashions v Brunton   PAJA not applicable on CCMA Arbitrations P88/01 Volkswagen v Brand   Conciliation Tender made at conciliation included in deciding award; conciliation confidential J1500/99 Mda v CCMA   Award be based on gross salary not nett salary J1500/99 Mda v CCMA   Procedure Commissioner considered plea of guilty at disciplinary hearing where the arbitration was de novo hearing C694/99 CEPPWAWU v CCMA   Arbitration a settlement agreement was reached; without a substantive application to set aside the agreement the employer was not obliged to attend a hearing and the hearing had been irregularly set down. JR1530/04 Jet Master (Pty) Ltd v Centre for Dispute Resolution, Metal and Engineering Industry Bargaining Council; Commissioner Kleinot; Commissioner Mphaphuli; National Canvas Union Of SA & Shortbridge, VR   Certificate jurisdiction; employee status if a certificate of outcome was not issued, arbitration remained mandatory if 30 days had expired since the CCMA received the referral, and if the employee required this. Specific reference was made to De Vries v Lionel Murray Schwormstedt & Louw ((2001) 22 ILJ 1150 (LC); the fact that a Commissioner had declined to issue a certificate because he/she was of the view that the referring party was not an employee, was of no consequence to the arbitrator who could consider the question afresh. JR 2343/05 Seeff Residential Properties v Commissioner N Mbhele N.O.; CCMA & Smith, DN   Certificate jurisdiction; condonation; Fidelity Guards Holdings (Pty) Ltd v Epstein N.O. & Others ((2000) 21 ILJ 2382 (LAC) JR 2343/05 Seeff Residential Properties v Commissioner N Mbhele N.O.; CCMA & Smith, DN   Referral to court without referring dispute to CCMA the employee ought to have referred his dispute to the CCMA as nothing had precluded him declaring a dispute under Chapter VIII of the LRA. Held therefore, that in part his statement of claim had not disclosed a cause of action.(NEWU v CCMA & Others ((2003) 24 ILJ 2335 (LC) & NAPTOSA & Others v Minister of Education, WC & Others (2001 (2) SA 112 (C)/(2001) 22 ILJ 889 (C)) JS 239/04 Mathews, T v GlaxoSmithKline SA (Pty) Ltd   Award interest once liability for mora interest was established then the creditor was entitled to it as of right and a Court had no discretion to reduce or refuse such an award.  However, the Court held that the amount of the award was illiquid and the interest would, i.t.o. the Prescribed Rate of Interest Act, have had to be determined by the arbitrator.  Noted that s 143(2) of the LRA provided that unless the arbitrator directed that no interest accrue on the award, the interest would be carried at the same rate as that of a judgment debt. J 1307/04 Top, G v Top Reizen cc   Legal Representation not irregular for commissioner to allow legal representation for individual where employer party represented by employer organisation JR1246/2003 Bezuidenhout v Johnston N.O. & others   certificate dismissal first had to be referred to conciliation before it could be referred for adjudication, the court confirmed that this was a necessary jurisdictional fact to be proved before the matter may be referred to the Labour Court under section 189A of the Act. In this regard the court referred to the decisions in NUMSA v Driveline Technologies (Pty) Ltd and Another 2000 21 ILJ 142 (LAC); Fidelity Guards Holdings (Pty) Ltd v Epstein NO and others (2000) 21 ILJ 2382 (LAC) and NUMSA v SA Five Engineering (2005) 1 BLLR 53 (LC). JS792/04 Catering Pleasure & Foods Workers Union v National Brands Ltd   Sanction [Now decided by the Constitutional Court] SCA in Rustenburg Platinum Mines Ltd v CCMA & Others [2006] 11 BLLR 1021 that commissioners do not enjoy a discretion with regard to sanction, but merely the duty of determining whether the employers sanction was fair. The court in the current matter interpreted the SCA decision to mean that the employers discretion to decide on sanction has now been extended so wide that in essence all the commissioner can do at best is to observe and note the sanction imposed by the employer. The court suggested, however, that the approach in the LAC decision of Toyota SA Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 is preferable. It was held in that matter that a commissioner can interfere if the sanction is so egregious that it shocks and alarms the court. It was also held in that case that the reasonable employer test does not form part of our law. JR315/06 Rustenburg Platinum Mines v CCMA & Others   rescission Shoprite Checkers case on the basis that it relates to a situation where there was proper service but the defaulting party claimed not to have been aware of the hearing because the notice of set down never reached it. JR2896/05 SADTU v CCMA & Others   Arbitration; first stage was to determine whether the employees dismissal was fair D994/09 Toyota SA Motors (Pty) Ltd v Lewis and Others   Postponement tardiness in giving instructions to its attorneys, question of prejudice to both parties. balance the prejudice to the employee in having the hearing of his dispute delayed, against the prejudice to the employer arising from the denial of the opportunity to ventilate its case could have been remedied by an appropriate costs order; has to be more stringent than that of the courts. JR1959/06 Nestle (Pty) Ltd v CCMA & Others   commissioner giving legal advice inducing party to settle; acted outside mandate JR3038/07 Anglo Platinum Limited v CCMA & Others   referral After termination may approach CCMA C657/09 Moloto v City of Cape Town   Certificate characterization of dispute Court not bound by it C354/11 Pienaar v Stellenbosch University and Another   arbitration; Jurisdictional point Where a jurisdictional point had been raised at conciliation, the commissioner was compelled to deal with the issue and to make a ruling (which was subject to review by this court). Where a jurisdictional point was not, however, raised at conciliation, the arbitrating commissioner had to entertain this point despite the fact that a certificate had been issued. had refused to entertain a jurisdictional point raised for the first time JR592/05 Avgold  Target Division v CCMA & Others   Certificate Conciliation;  Issuing of certificate constitutes administrative action in terms of s 1 of PAJA, Act 3 of 2000;  Remains valid until set aside J507/07 Vodacom (Pty) Ltd & Another v Communication Workers Union & Others   Functus officio mean that there would be two administrative decisions in conflict with each other, and such a situation is undesirable.  Thus the doctrine finds application in CCMA rulings. JR1777/06 Rawu obo L Ngweletsana v PT Operational Services (Pty) Ltd & Others   Award Exceeded powers Procedural unfairness; not raised reinstatement in subordinate position; no evidence canvassed C1147/2010 SA Post Office Ltd v CCMA and Others   Compensation second stage of the arbitration would proceed to determine the appropriate relief D994/09 Toyota SA Motors (Pty) Ltd v Lewis and Others   Postponement Case law sited Insurance & Banking Staff Association & others v SA Mutual Life Assurance Society (2000) 21 ILJ 386 (LC). (1) The trial judge has a  F  discretion whether an application for postponement should be granted or refused. (2) That discretion must at all times be exercised judicially. (3) The trial judge must reach a decision after properly directing his or her attention to all relevant facts and principles. (4) An application for postponement must be made timeously as soon as the circumstances which might justify an application become known to the applicant. However, in cases where fundamental fairness and justice justify a postponement, the  G  court may in an appropriate case allow an application for postponement even though the application was not timeously made. (5) The application for postponement must always be bona fide and not used simply as a tactical manoeuvre for the purpose of obtaining an advantage to which the applicant is not legitimately entitled. (6) The court must  H  consider whether any prejudice caused by a postponement to the adversary of the applicant can fairly be compensated by an appropriate order of costs or any other ancillary mechanism. (7) The court must weigh the prejudice which will be caused to the respondent if the postponement is granted against the prejudice which will be caused to the applicant if it is not granted. (8) Where the applicant has not made the application  I  timeously or is otherwise to blame with respect to the procedure which it has followed, but justice nevertheless justifies a postponement in the particular circumstances of the case, the court in its discretion might allow the postponement but direct the applicant to pay the wasted costs of the respondent. The applicant may even be directed to pay the costs of the adversary before the applicant is allowed to proceed with the action or  J  defence, as the case may be. J5507/01 JN Supermarket CC t/a Riverside Spar v Collins & Others   Conciliation certificate While the Commissioner at conciliation makes no finding on the merits of a dispute, he or she (sic) is entitled to ensure: (1) that the dispute before him is one over which he has jurisdiction; (2) the right parties are before him. If either of the above instances are answered in the negative, he must expressly refuse to issue a certificate. The refusal to issue a certificate would imply that the party raising the dispute will not be able to pursue the next procedural step in the dispute resolution process. This is the right way to handle the matter. The purpose of conciliation, therefore, is not only an attempt to try and resolve a dispute, but where the wrong parties are before the Commissioner, the matter should be brought to an end there C698/01 Moore & Others v Telkom SA Ltd & Others   Conciliation Jurisdiction is obliged to consider jurisdiction at conciliation; Commissioner may have to hear oral evidence J4304/00 Sapekoe Tea Estates (Pty) Ltd v Maake NO & Others   Referral date Dispute referred prior to date of dismissal there was no dispute that a dismissal had occurred CA8/01 Halgang Properties CC v Western Cape Workers Association   amendment of the date of dismissal on the referral form itself merely a procedural step of the type habitually allowed by courts and which caused the employer no prejudice. Noted that no formal application for amendment had been sought but held: Given the technical nature of the error it can be condoned CA8/01 Halgang Properties CC v Western Cape Workers Association CCMA continued Postponement A postponement is not a matter of right; it is an indulgence granted by the Court to a litigant in the exercise of a judicial discretion. This is the position with the Commissioners as well. [21] The Commissioner dismissed the application for a postponement on the basis that there had been previous postponements requested by the [employee]. It was also rejected on the basis that there was no agreement to have the matter postponed. Noted further that decisions to refuse a postponement at the CCMA should be even less open to interference than other discretionary powers of the CCMA because of the busyness of the CCMA. Held that in the circumstances the refusal of the postponement was not irregular D950/01 Vorster v CCMA & Others   Compensation award failure of the Commissioner to motivate the amount of compensation she awarded to the employees was a reviewable irregularity JR806/01 Knightwatch Security (Pty) Ltd v Mbileni NO & Others   Date when time period for filing of referral commences Once a certificate is completed and signed by the Commissioner, three distinct steps are followed: the issuing, service and filing of the certificate. The issuing of the certificate does not include its service, filing or stamping. It is the act which simply makes available the signed certificate to the party entitled to receive it      [12] Whether the certificate is made available before or after it is filed in the CCMA, is immaterial. The issuing of the certificate immediately after the conciliation is efficient. To require the further steps of filing and stamping the certificate as prerequisites for issuing it could result in delay and costs for the CCMA and the parties. JR822/01 Mould v Roopa NO & Others   Conciliation a decision on whether an applicant is an employee made by a conciliating Commissioner constitutes nothing more than his or her opinion and binds no-one, including the arbitrating commissioner J6145/00 SABC v CCMA & Others   Conciliation a decision on whether an applicant is an employee made by a conciliating Commissioner constitutes nothing more than his or her opinion and binds no-one, including the arbitrating commissioner Benicon Earthworks & Mining Services (Edms) Bpk v Jacobs NO & others (1994) 15 ILJ 801 (LAC) J6145/00 SABC v CCMA & Others   Conciliation a decision on whether an applicant is an employee made by a conciliating Commissioner constitutes nothing more than his or her opinion and binds no-one, including the arbitrating commissioner Flexware (Pty) Ltd v CCMA & others (1998) 19 ILJ 1149 (LC) J6145/00 SABC v CCMA & Others   Conciliation a decision on whether an applicant is an employee made by a conciliating Commissioner constitutes nothing more than his or her opinion and binds no-one, including the arbitrating commissioner Etschmaier v CCMA & others (1999) 20 ILJ 144 (LC J6145/00 SABC v CCMA & Others   Conciliation case dealt with a decision to condone a late referral to the CCMA, the power for which vests with the conciliating Commissioner and cannot be reconsidered by the arbitrating commissioner Distinguished the decision in Fidelity Guards Holdings (Pty) Ltd v Epstein NO & others (2000) 21 ILJ 2382 (LAC) SABC v CCMA & Others   Conciliation [W]here a party brings a review application before this Court after the conciliation phase and before the arbitration phase, it is open to this Court, in appropriate circumstances, to dismiss the application on the basis that it has been prematurely brought. Whether a review application should be dismissed on such a basis depends inter alia on whether there is any realistic possibility that the facts which may be disclosed during the arbitration phase may affect the outcome of the review J6145/00 SABC v CCMA & Others   Conciliation [W]here a party brings a review application before this Court after the conciliation phase and before the arbitration phase, it is open to this Court, in appropriate circumstances, to dismiss the application on the basis that it has been prematurely brought. Whether a review application should be dismissed on such a basis depends inter alia on whether there is any realistic possibility that the facts which may be disclosed during the arbitration phase may affect the outcome of the review Richards Bay Iron supra and Avroy Shlain Cosmetics (Pty) Ltd v Kok & another (1998) 19 ILJ 336 (LC) J6145/00 SABC v CCMA & Others   Postponement it would have been prudent of the [employer] to attend on that day and explain its difficulties instead of trying to obtain a postponement by letter and simply not attending then (sic) the postponement was not granted. The [employer] did so at its own peril JR1177/01 Anderson Transport (Pty) Ltd v Maqhina & Others   Certificate: Formulation of dispute Noted that the certificate described the dispute as unfair dismissal, whereas the dispute referred by the employee to the LC related to dismissal for operational requirements. an arbitrator is not bound by the description of the dispute given by the conciliator, particularly its legal characterisation, and must ascertain the real nature of the dispute JS506/01 Gersbach v Cellvec Electronics   Conciliation; Biased the CCMAs advisory role is limited to this function and that of giving advisory awards. Held: The rationale underpinning these provisions, is that Commissioners should not give advice or make recommendations that result in them being or being seen to be partial. Held further: Even if a Commissioner is invited by a party to give advice, such an invitation should be resisted Commissioner who puts herself in such a situation would have great difficulty in acting with honesty, integrity and impartiality. Ethically, it is therefore untenable. [28] 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. Concluded that the Commissioner ought not have made the statements she did D719/02 Kasipersad v CCMA & Others   Jurisdiction If the CCMA had no jurisdiction to arbitrate because [Pienaar] was not an employee it also had no jurisdiction to conciliate and its purported action is on (sic) no relevance once the jurisdictional point is taken before a forum that has power to decide the issue and is found to be good JR562/02 AVBOB Mutual Assurance Society v CCMA & Others   Certificate certificate has both an evidentiary value, as proof of the facts contained in it, and a jurisdictional value, as its issue confers jurisdiction on the CCMA and LC to arbitrate or adjudicate the dispute Rejected the suggestion that a certificate issued after an unreasonable period should be considered null and void P502/02 SAPPI Timber Industries (Pty) Ltd t/a Boskor Sawmill v CCMA & Others   Referral date I am not persuaded by the argument that the referral date for arbitration is the date upon which a respondent receives the referral papers together with the condonation application in the event of late referral. In my view, the Rules are clear in this regard. They do not call for any interpretation. The referral date (for arbitration) is the date when the referral papers, with or without a condonation application, are properly filed with the CCMA or the relevant bargaining council, as the case may be D828/02 Department of Finance v CCMA & Others   Legal Representation [t]here are no rational reasons to deny a right to legal representation to an employee or his or her employer in arbitrations about dismissals allegedly occasioned by operational requirements, and not where the conduct or capacity of the employee is concerned. , the inconsistent or irrational regulation does not infringe a particular constitutional right, it does not permit the conclusion that because one section of the LRA, which is out of step with a more expanded or generous right that s140(1) is invalid in terms of our Constitution J2953/00 Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO & Others   Biased Arbitrator conferring privately with one party during proceedings; the presence of the other unless the absent party has consented to such communication in his absence CA12/02 Best Boland Motors CC v Dispute Resolution Centre & Others   procedure committed an irregularity by depriving the parties of an opportunity to submit closing arguments despite requests to do so D577/03 SA Fibre Yarn Rugs Ltd v CCMA; Commissioner MM Govender & Shezi, Philemon Jabulani   Conciliation if he had been dissatisfied with the attempt at conciliation and he had disputed the validity of the certificate, he ought to have taken the CCMA on review in order to have the certificate set aside C463/04 GIWUSA obo Heyneke PG v Klein Karoo Kooperasie Bpk   Award Compensation where the dismissal was both procedurally and substantively unfair, the Court and the arbitrator were not entitled to exercise discretion against the award of compensation and that the award of compensation was therefore not reviewable the arbitrator had discretion to charge fees if the dismissal was procedurally unfair and held that the award was justifiable and must stand JR328/01 Group 6 Security Services (Pty) Ltd; Masters, A v Moletsane, R N.O.;CCMA & Weller, D   Certificate referral outside 30 days the time limit had obviously not been complied with and no valid certificate could have been issued without the granting of condonation as stated in Gianfranco Hairstylists v Howard & Others ((2000 (21) ILJ 361 (LC) certificate of non-outcome was set aside JR381/02 Schalk & Rina Brandt CC t/a Alfa Matte v Molotsi, M N.O.; CCMA & SACCAWU obo Mohlakoana   Jurisdiction the employer had not convinced the Court that it fell outside the scope of the SALGBC and the rule nisi was discharged. J130/06 Johannesburg City Parks v SA Municipal Workers Union & Mafanya, SC & Others   Legal Representation there was a duty on the Commissioner to establish whether Mr Dixon was entitled to act on their behalf as set out in Vidar Rubber products (Pty) Ltd v CCMA & Others (1998) 19 ILJ 1275 Held therefore that the proceedings were null and void, as he had a lack of locus standi. JR2605/05 Vac Air Technology (Pty) Ltd v The Metal & Engineering Industries Bargaining Council; Shaer, M & Meissner, K   Arbitration proceedings Commissioner cannot award absolution JR161/07 Minister of Safety and Security v Madisha & Others   Certificate of outcome; R31 Commissioners entry on certificate serving as guidance; cannot be determinative of the true nature of the dispute JR435/08 Lesedi Local Municipality v SAMWU & Others   Certificate of outcome 2 certificates issued First certificate remains valid JR435/08 Lesedi Local Municipality v SAMWU & Others   Jurisdiction Arbitration; Where conciliating commissioner has made a ruling in respect of jurisdiction arbitrating commissioner cannot validly revisit the same point J68/08 EOH Abantu (Pty) Ltd v CCMA & Others   nature of the dispute or the forum in which it should be determined are of no legal significance or consequence certificate issued by the commissioner had no legal significance beyond stating JR2006/08 Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & Others   Commissioner powers commissioner is entitled, despite a finding of guilt, to determine whether or not dismissal was an appropriate sanction in the circumstances,   legal representation when jurisdictional issue raised JR596/09 Shell SA Energy (Pty) Limited v National Bargaining Council for Chemical Industry & Others   Arbitration; Postponement Commissioner erroneously finding that applicant had to be present at hearing of application for postponement by employer; Absence not willful; reasonable prospects of success C709/06 Martin v CCMA & Others   Conciliation Failure to arrive Party not precluded from referring dispute for arbitration or adjudication JA62/05 Premier Gauteng & Another v Ramabulana N.O & Others   Procedure withdrew the dispute, the fact that a matter was withdrawn did not necessarily constitute a bar to reinstituting proceedings. The withdrawal was equivalent to a grant of absolution from the instance and it therefore remained open to the applicant to reinstitute proceedings as the merits of the claim had not been adjudged. JR3307/09 Shibogde v Minister of Safety and Security and Others   Referral constituted a fatal defect which deprived the CCMA or a bargaining council of jurisdiction to hear a dispute. JR3248/10 Shibogde v Minister of Safety and Security and Others   Rulings, he functus officio doctrine applied to CCMA commissioners. They could therefore only revisit their decisions to the extent that it was permitted by the provisions of s 144 of the LRA. JA7/11 PT Operational Services (Pty) Ltd v RAWU obo Ngwetsana   Conciliation, Jurisdiction, Employment relationship, Evidence, could be properly determined by adducing viva voce evidence, unless both parties were agreed that such determination could be made on the basis of documentary evidence only. JA42/10 Shell SA Energy (Pty) Ltd v National Bargaining Council for the Chemical Industry and Others   Bargaining Council, Jurisdiction general worker, this duties did not fall within the jurisdiction. JS1150/09 SA Transport and Allied Workers Union and Another v Three Flames Investments CC   Reinstated, but asked for compensation, reviewable C887/2011 Lithotech Africa Mail Cape v Statutory Council for the Printing, Newspaper and Packaging Industries and Others CCMA continued Functus officio, CCMA, only applies to final decisions JR 2582/07 MEC, Tourism, Economic and Environmental Affairs v Moeko and Others Rescission, outside 14 days, no condonation, erroneous, An error could not refer to the merits; it had to refer to the process of making the award, as the arbitrator had found, award had been erroneously made. C 161/12 BHP Billiton Hotazel Manganese Mines (Pty) Ltd v CCMA and Others Certificate, not conferring jurisdiction. s no more than a document issued by a commissioner stating that a dispute remained unresolved. JR 2996/10 City of Johannesburg v South African Local Government Bargaining Council and Others CCMA Jurisdiction, Single employee, Meaning of s 191(12) of LRA, Other employee had accepted alternative employment and therefore her employment had terminated by mutual agreement leaving a single employee, having jurisdiction. JR 17/12 Latinsky & Co v Mooi NO and Others Procedure, referral withdrawn, if claim withdrawn before a decision taken on the merits, claim can be reinstituted. P 32/12 Lemley v CCMA and Others Conciliation The court held that conciliation was a prerequisite for the Labour Court to entertain a dispute before it: if the dispute had not been conciliated, the court had no jurisdiction. Counsel for the applicants conceded that the employees had been dismissed on 21 January 2013 but the dispute that was referred to the CCMA was a dispute as to whether the employees had been unfairly dismissed on 8 January 2013. (C592/13) [2014] ZALCCT 33 Sambo and Others v Steytler Boerdery Nature of dispute Rule 15 of the Rules for the Conduct of Proceedings before the CCMA that provided that the nature of the dispute had to be identified as described in the referral document or as identified by the commissioner during the conciliation process. It went without saying that in order to attempt to conciliate the dispute it was necessary for a commissioner to determine the nature of the dispute and this would not be possible if a conciliation commissioner was precluded from enquiring into the nature of the dispute because the referral of the dispute did not accurately describe the dispute with precision. In the present matter it was abundantly clear that during the course of the conciliation the dispute that had been referred to conciliation was determined to be a dispute based on unfair discrimination that warranted referral to the Labour Court. (1107/2011) [2014] ZALCJHB 228 CMI Business Enterprises CC v September and Others Jurisdiction. CCMA and bargaining councils creatures of statute and not having any jurisdiction to dismiss claims on basis of unreasonable delay. (JR1702/12) [2014] ZALCJHB 310 Public Servants Association of South Africa v Nsibanyoni and Others Certificate All it did is to record that a dispute was referred and that that dispute remained unresolved. There was simply no need to challenge the validity of the certificate by way of review as a prerequisite to being able to challenge the protected nature of a strike. (D448/2014) [2014] ZALCD 36 Newcastle Local Municipality v SAMWU and Others CCMA/Bargaining Council: Jurisdiction Jhb City Parks did not fall outside the scope of the SALGBC (SA Local Government Bargaining Council). Further that they were covered by the collective agreement entered into by the parties and that they had not provided sufficient facts to substantiate the CCMAs jurisdiction over the matter. The actual demarcation dispute to determine the jurisdiction of the SALGBC had not yet been heard in the CCMA. J130/06 Johannesburg City Parks v SA Municipal Workers Union & Mafanya, SC & Others Withdrawal of a withdrawal of a dispute J1074/13, JR1155/13 Letlatsa v Air Chefs (Pty) Ltd (J1074/13, JR1155/13) [2015] ZALCJHB 338 (5 October 2015) 16] In the light of the consistent approach of this court, which I have no reason to divert from, a withdrawal of a dispute at the CCMA can be withdrawn, and it is always open to a party to file a fresh referral, subject to specific defences that may be raised by respondent party, including election, a waiver, a final determination of a dispute and/or questions of prejudice. Prejudice may have to be addressed within the context of an application for condonation where so required. South African Municipal Workers Union and Others v Zenzeleni Cleaning and Transport Services CC and Others JR852/13) [2015] ZALCJHB 47 (23 February 2015) at para [15] Certificate JR1751/14 Cinqplast Plastop (Pty) Ltd v Dunn N.O. and Others (JR1751/14) [2016] ZALCJHB 78 (25 January 2016) Bombardier Transportation (Pty) Ltd v Mtiya[2010] 8 BLLR 840(LC) a certificate of outcome is no more than a document issued by commissioner stating that on a particular date, a dispute referred to the CCMA for conciliation remain unresolved. It does not confer jurisdiction on the CCMA to do anything that the CCMA is not empowered to do, nor does it preclude the CCMA from exercising any of its statutory powers. In short, a certificate of outcome has nothing to do with jurisdiction. If a party wishes to challenge the CCMAs jurisdiction to deal with an unfair dismissal dispute, it may do so, whether or not a certificate of outcome has been issued. Jurisdiction is not granted or afforded by a CCMA a commissioner issuing a certificate of outcome. Jurisdiction either exists as a fact or it does not. Jurisdiction Monare v South African Tourism and Others [2016] 2 BLLR 115 (LAC) Territorial Jurisdiction For the CCMA not having jurisdiction, there must be a divorce and/or separateness between the employers undertaking outside of South Africa where the employee was employed and the employers undertaking in South Africa. The employee (albeit a South Africa citizen) had been recruited overseas; his employment contract had been concluded overseas; he performed his services overseas, committed the misconduct overseas and was dismissed overseas. Decision repealed: Court in Astral Operations Ltd v Parry (2008) 29 ILJ 2668 (LAC) (Astral): that a primary consideration in determining the territorial application of the Labour Relations Act (the LRA), is the locality of the undertaking carried out by the company in which the employee was employed and accordingly that if an employees work is carried on inside South Africa, the CCMA would then have jurisdiction Biased In light of the above facts, I find that, objectively speaking, the employee, as an informed litigant, reasonably perceived or reasonably apprehended bias on the part of the Commissioner. the Commissioner sought to send a clear message to the third respondents representative that the case of the third respondent was incomplete and that it was not strategic to close the case without calling another witness. In doing so, he advanced and advantaged the case of the third respondent. Sasol Infrastructure v Safafe and Others(2015) 36ILJ655 (LAC) at para 61. Inconsistency JR535/13 SATAWU obo Kgwele v Commission for Conciliation, Mediation and Arbitration and Others (JR535/13) [2016] ZALCJHB 29 (3 February 2016) misconceived facts and failed to apply his mind to the principle governing inconsistency in disciplinary matters: allegation of inconsistency were charged with negligent and reckless driving; they were not dismissed for that but were given final written warning; the above that the employees whose cases were relied upon by the employee in his claim of inconsistency were all charged with the same offence as his, namely, negligence and reckless driving. They were found guilty but not dismissed because of various mitigating factors. NUM and Another v Amcoal Colliery t/a Arnot Colliery and Another [2000] 8 BLLR 869 (LAC) at para 19. The parity principle was designed to prevent unjustified selective punishment or dismissal and to ensure that like cases are treated alike. It was not intended to force an employer to mete out the same punishment to employees with different personal circumstances just because they are guilty of the same offence. Certificate: Late referral, no condonation JR2413/11 Department of Education, North West Province v Education Labour Relations Council ('ELRC') and Others (JR2413/11) [2016] ZALCJHB 61 (23 February 2016) It is trite law that a bargaining council or the CCMA does not have jurisdiction to conciliate or arbitrate a dispute unless a dispute has been referred timeously in terms of s 191(1)[2], failing which the party referring the dispute has obtained condonation in terms of s 191(2) of the LRA[3]. In this case no condonation was obtained. Ultra vires the powers of the second respondent. Certificate JS940/13 Mbele and Others v Chainpack (Pty) Ltd and Others (JS940/13) [2016] ZALCJHB 191; (2016) 37 ILJ 2107 (LC) (5 April 2016) Strautmann v Silver Meadows Trading 99 CC (Pty) Ltd t/a Mugg and Bean Suncoast and Others (2009) 30 ILJ 2968 (LC) at paras 8. A certificate of outcome requires only that the commissioner states that, as at a particular date, the dispute referred to the CCMA remains unresolved. I am aware that Form 7.12 provides for a classification of the dispute and an indication as to what further rights of recourse might be open to an applicant should the dispute remain unresolved. But any classification that is made or indication that is given as to which forum or courses of action might be open to an applicant wishing to pursue a dispute has no legal significance other than to certify that on a particular date a particular dispute referred to the CCMA for conciliation remained unresolved. Any other views expressed by a commissioner, even if cast in directory language, amount to little more than gratuitous advice. In National Union of Metal Workers of SA and Others v Driveline Technologies (Pty) Ltd and Another(2000) 21ILJ142 (LAC), Zondo AJP (as he then was) held: A commissioner who conciliates a dispute is not called upon to adjudicate or arbitrate such dispute. He might take one or another view on certain aspects of the dispute but, for his purposes, whether the dismissal is due to operational requirements or to misconduct or incapacity, does not affect his jurisdiction. It is also not, for example, the conciliating commissioner to whom the Act gives the power to refer a dismissal dispute to the Labour Court. That right is given to the dismissed employee. (See s191 (5) (b)). If the employee, and not the conciliating commissioner, has the right to refer the dispute to the Labour Court, why then should the employee be bound by the commissioners description of the dispute? I am aware that the Driveline case concerned a retrenchment dispute referred to this court in which the referring party sought to upgrade to a dispute concerning an automatically unfair dismissal. In that sense, no matter what the nature of the dispute, it was always going to be adjudicated by this court. The present dispute, of course, concerns a dismissal dispute that the applicant contends is arbitrable but which the commissioner obviously regarded as justiciable. But I don’t think that this distinction affects the principle. The principle is that a referring party is not bound by a commissioners classification of a dispute or any directive as to its destiny. If this were not so and if some legal significance were to be attached to a commissioners categorisation of a dispute in a certificate of outcome, then by electing the forum in which the dispute is to be determined, the commissioner denies the referring party the freedom to pursue her rights as she deems fit. Certificates of outcome are issued at the conclusion of the conciliation phase more often perhaps than not in circumstances where no evidence would have been led as to the nature of the dispute. The conciliating commissioner is not always well placed to make judgments, based as they would be only on the say-so of one or both parties during conciliation, as to what the true nature of the dispute might be. Even less, for the reasons stated above, should those judgments be binding on a referring party. (Emphasis supplied). Judge Van Niekerk posited further in this judgment that when a commissioner completes Form 7.12 and categorises the dispute referred to the CCMA by ticking one of the boxes provided, the commissioner does not make a jurisdictional ruling. Nor does the ticking of any of the boxes marked CCMA arbitration, Labour Court None or Strike/Lockout amount to a ruling on which of those courses of action must be pursued by a referring party. Consistent with the principle established in the Driveline case, it is not for commissioners, by means of certificates of outcome or otherwise, to dictate to litigants either how they should frame the disputes that they might wish to pursue or which forum they are obliged to approach to have those disputes determined. Dispute characterisation DA1/2015 Hospersa obo Tshambi v Department of Health, KwaZulu-Natal (DA1/2015) [2016] ZALAC 10; [2016] 7 BLLR 649 (LAC); (2016) 37 (ILJ) 1839 (LAC) (24 March 2016) section 24.In the result, the arbitrator misdirected himself by not determining objectively the true dispute and had he done so he would have found that the true dispute was one contemplated by section 186(2)(b)of the LRA, and, in consequence, startlingly out of time, requiring an application for condonation. test for reasonable apprehension of bias CA10/15 Satani v Department of Education, Western Cape and Others (CA10/15) [2016] ZALAC 38; (2016) 37 ILJ 2298 (LAC) (13 June 2016) not premised on whether the representative objected to the process. Test an objective one which is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the commissioner has not brought an impartial mind to bear in the adjudication of the dispute. CUSA v Tao Ying Metal Industries and Others [2009] 1 BLLR 1 ((CC); (2008) 29 ILJ 2461 (CC); 2009(9) BCLR 1 (CC) 64.Consistent with the objectives of the LRA, commissioners are required to deal with the substantial merits of the dispute with the minimum of legal formalities. This requires commissioners to deal with the substance of a dispute between the parties. They must cut through all the claims and counter-claims and reach for the real dispute between the parties. In order to perform this task effectively, commissioners must be allowed a significant measure of latitude in the performance of their functions. Thus the LRA permits commissioners to conduct the arbitration in a manner that the commissioner considers appropriate. But in doing so, commissioners must be guided by at least three considerations. The first is that they must resolve the real dispute between the parties. Second, they must do so expeditiously. And, in resolving the labour dispute, they must act fairly to all the parties as the LRA enjoins them to do County Fair Foods (Pty) LTD v Theron NO and Others(2000) 21 ILJ 2649 (LC 7The basic standards of proper conduct for an arbitrator are to be found in the principles of natural justice, and in particular the obligation to afford the parties a fair and unbiased hearing. (See Baxter Administrative Law at 536). These principles have been reinforced by the constitutional imperatives regarding fair administrative action. (See Carephone (Pty) Ltd v Marcus NO (1998) 19 ILJ 1425 (LAC) at 1431I-1432A.) The core requirements of natural justice are the need to hear both sides (audi alteram partem) and the impartiality of the decision-maker (nemo iudex in sua causa). (See Baxter (supra) at 536.). 8. It follows from the above principles that a Commissioner must conduct the proceedings before him in a fair, consistent and even-handed manner. This means that he must not assist, or be seen to assist, one party to the detriment of the other. Therefore, even though a Commissioner has the power to conduct arbitration proceedings in a manner that the Commissioner considers appropriate in order to determine the dispute fairly and quickly under the provisions of section 138(1) of the Act, this does not give him the power to depart from the principles of natural justice. Thus, further, although it clearly lies within the Commissioners powers to decide whether to adopt an inquisitorial or adversarial mode of fact finding, once this decision has been made it ought to be consistently applied to both parties. [16] Where an arbitrator adopts an inquisitorial approach, he/she does not have the right to abandon the well-established rules of natural justice. The rules of natural justice are instruments that commissioners should have in their mind when adopting an inquisitive approach. The rules of natural justice dictate that parties be afforded a fair and unbiased hearing, which consists of hearing both sides in an impartial manner. This rule finds expression in the audi alteram partem which is concerned with affording parties an opportunity to participate in the decision that will affect them. The participation of parties in proceedings not only improves the quality and rationality of the decision but also enhances the legitimacy of the decision. The audi alteram partem rule implies equal participation of parties during the proceedings. He/she must hear both sides; act impartially and consistently to both parties irrespective of the approach adopted Innovation Maven (Pty) LTD v CCMA and Others (2016) 37 ILJ 465 (LC) [17]In the present instance, in my view, and after a careful perusal of the record, the commissioners conduct was such that she overstepped the mark. It is difficult to convey the magnitude of the extent to which the commissioner actively engaged in the proceedings, but read as a whole, the transcribed record reflects that the commissioner failed to respect the roles of the parties respective representatives and assumed to herself the role of leading evidence and conducting cross-examination. Award JA68/15 Solidarity obo Smook v Department of Transport Roads and Public Works (JA68/15) [2016] ZALAC 42; (2016) 37 (ILJ) 2626 (LAC); [2016] 12 BLLR 1201 (LAC) (15 June 2016) requirement of signing award is directory and not peremptory. Writ of execution J1807/15, J1706/15, JA94/2015 CCMA v MBS Transport CC and Others, CCMA v Bheka Management Services (Pty) Ltd and Others (J1807/15, J1706/15, JA94/2015) [2016] ZALAC 34; [2016] 10 BLLR 999 (LAC); (2016) 37 ILJ 2793 (LAC) (28 June 2016) interpretation of section 143 does not justify practice that registrar of the Labour Court should issue writ of execution once monetary awards are certified by the CCMAs director they are executed as if they were orders of the Magistrates Court. [25] The legislature decided, as I will demonstrate below, to make certified CCMA awards enforceable in terms of section 143 without the need to go to the Labour Court. The procedure created by section 143 makes it easier, inexpensive, effective and accessible for a person to enforce a certified arbitration award. [30] Therefore, section 143(1) read with section 143(3) means that when an arbitration award is certified by the Director, it may be enforced as if it were an order of the Labour Court in respect to which a writ has been issued. We must therefore not only assume that it is an order of the Labour Court but also assume that a writ has been issued in respect of that order.... The certified award is therefore the writ. referral for conciliation: new employer sect 197 JA40/2015 Temba Big Save CC v Kunyuza and Others (JA40/2015) [2016] ZALAC 36; [2016] 10 BLLR 1016 (LAC); (2016) 37 (ILJ) 2633 (LAC) (28 June 2016) in the context of an alleged s197 transfer, there is no need to refer the new employer to conciliation - the new employer takes the place of the old employer in all material respects Labour Court correct in joining the employer Commissioner powers JR 1099/13 South African Municipal Workers Union and Another v Ngaka Modiri Molema District and Others (JR 1099/13) [2016] ZALCJHB 257; (2016) 37 ILJ 2430 (LC) (7 July 2016) commissioner (not having) license to craft a charge that will justify a dismissal. SAB Ltd v CCMA and Others (2012) 33 ILJ 2945 (LC) at para 26. In my view, the commissioners view can best be summarised thus: The employer decides to dismiss. The commissioner conducts an arbitration de novo. In the light of the totality of circumstances, established by the evidence at arbitration the commissioner must then decide whether the decision to dismiss was fair. In doing so, it is the commissioners own sense of fairness that must prevail. There can be no deference to the employer.(My own underlining) Wasteman Group v SAMWU and Others [2012] 8 BLLR 778 (LAC) at 781D. The Commissioner is required to come to independent decision as to whether the employers decision was fair in the circumstances, these circumstances being established by the factual matrix confronting the commissioner. Fidelity Cash Management Service v CCMA and Others [2008] 29 ILJ 964 (LAC) at para 32. It is an elementary principle of not only our labour law in this country but also of labour law in many other countries that the fairness or otherwise of the dismissal of an employee must be determined on the basis of the reasons for dismissal which the employer gave at the time of the dismissal. The exception to this general rule is where at the time of dismissal the employer gave a particular reason as the reason for dismissal in order to hide the true reason such as union membership. In such a case the court or tribunal dealing with the matter can decide the fairness or validity of the dismissal not on the basis of the reason that the employer gave for the dismissal but on the basis of the true reason for dismissal. Absa Brokers (Pty) Ltd v Moshoana NO and Others [2005 10 BLLR 939 (LAC) at para 37. However, since he was not charged with allegations of making a false declaration in clause 16 and since this was not the reason for his dismissal; the declaration cannot be taken into account for the purpose of the determination of the fairness or otherwise of the dismissal. The substantive fairness or otherwise of the employees dismissal must be assessed with reference to the reason for which he was dismissed. Palluci Home Depot (Pty) Ltd v Herskowitz and others Case CA21/13 delivered 12 December 2014. Also, as alluded to earlier, the Commissioner failed to apply his mind to the fact that the charge of screaming and shouting at Lambrecht could not on the facts (evidence) and the law be interpreted as insubordination in light of established authority, which requires the presence of a wilful and serious challenge to, or defiance of, the authority of the employer to found a charge of insubordination or gross insubordination. The Commissioner did not appreciate the difference, nor did he apply the relevant legal principles The Commissioner, in the current matter, made material errors in fact and law by failing to apply his mind to the distinction on the facts and the law between insubordination, and insolence in determining whether the first respondent had committed the offence of gross insubordination upon which the appellant based its decision to dismiss her. The Commissioner furthermore, in my view, misconstrued the true nature of the enquiry and his mandate in connection therewith by making a determination on aspects of the charges, which neither the chairman of the disciplinary hearing nor the appellant relied upon, at the time of the first respondents dismissal Dikobe v Mouton N.O. and Others Case number (JA45/2015) [2016] ZALAC 30 (15 June 2016). In argument on appeal, an allusion was made to certain written rules about not taking bribes, behaving honestly, not consuming the employers stock and not being in possession of the employers property, which plainly the appellant must have known. However, as he was not charged with any of these felonies, reference to them is irrelevant Toyota SA Motors (Pty) Ltd v CCMA and Others [2016] 37 ILJ 313 (CC) 124 If a commissioner does not decide whether the employee was guilty of the misconduct for which he was dismissed, he acts contrary to the requirements of s 138(1) of the LRA.125 When an arbitrator fails, as the commissioner did, to decide whether the employee was guilty of the misconduct for which the employer had dismissed him, the arbitrator or commissioner, like the magistrate in Goldfields Investment case who failed to carry out an instruction of the Ordinance, fails to carry out a statutory instruction... This constitutes both a gross irregularity in the proceedings as well as misconduct justifying that the award be reviewed and set aside.130 It must be remembered that it is the employer who bears the onus to prove that a dismissal is fair. If an arbitrator does not determine whether the employee was guilty of misconduct, the employer has no chance of showing that the dismissal is fair. In a particular case an arbitrator may find that the employee was guilty of misconduct for which he was dismissed but still finds that, nevertheless, dismissal was an unfair sanction. That this happen does not, however mean an arbitrator may fairly determine such a dismissal dispute without determining whether or not the employee was guilty of misconduct. CCMA continued functus officio doctrine JR3004/2010 Mbuli and Others v Department of Home Affairs and Others (JR3004/2010) [2016] ZALCJHB 280 (21 July 2016) refusing the postponement, the commissioner effectively revisited his decision that the matter should not be set down until a minute is signed PT Operational Services (Pty) Ltd v Retail and Allied Workers Union obo Ngweletsana [23] It is now settled that commissioners conducting arbitrations under the auspices of the CCMA are performing an administrative function. Although commissioners perform an administrative function such function includes adjudicative functions.[24] Pretorius explains the functus officio doctrine as follows: The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter. This rule applies with particular force, but not only, in circumstances where the exercise of such adjudicative or decision-making powers has the effect of determining a persons legal rights or of conferring rights or benefits of a legally cognizable nature on a person. The result is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker. However, this is not an absolute rule. The instrument from which the decision-maker derives his adjudicative powers may empower him to interfere with his own decision. Furthermore, it is permitted to make variations necessary to explain ambiguities or to correct errors of expression in an order, or to deal with accessory matters which were inadvertently overlooked when the order was made, or to correct costs orders made without having heard argument on costs. This list of exceptions might not be exhaustive and a court might have discretionary power to vary its orders in other cases. However, this power is exercised very sparingly, for public policy demands that the principle of finality in litigation should generally be preserved rather than eroded. The same considerations that require finality for the decisions of courts of law apply to the decisions of administrative authorities. Consequently, the functus officio doctrine applies in administrative law as it does in relation to curial proceedings. In elementary terms, the effect of the functus officio doctrine in administrative law is that an administrative agency which has finally performed all its statutory functions or duties in relation to a particular matter subject to its decision-making jurisdiction has exhausted its powers and has discharged its mandate in relation to that matter. Consequently, such an agency is without further authority as far as that matter is concerned because its duties and functions have been fully accomplished. Thus, an administrative agency which is functus officio is unable to retract or change its own earlier decision, unless it is authorised by its enabling legislation to do so.[42] Thereafter the court stated as follows:[28] In my view the Court a quo was correct in its conclusion that the functus officio doctrine applies to CCMA commissioners. They may therefore only revisit their decisions to the extent that it is permitted by the provisions of section 144 of the LRA. They may not do so whenever they like but may do so if the jurisdictional facts in section 144 are present. They may also do so when they have performed an allied function but not yet performed the power or duty bestowed on them by the legislature. (Own underlining) commissioner could revisit his earlier rulings because they were not final in nature Jurisdiction: section 10(6)(aA) of EEA JR738/16 Famous Brands Management Company (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR738/16) [2016] ZALCJHB 290; [2016] 12 BLLR 1217 (LC); (2016) 37 ILJ 2857 (LC) (29 July 2016) Applicant is entitled to pursue a review on a jurisdictional point despite the existence of the recently added section 10(8) of the EEA, namely, that a person effected by an award made by a CCMA commissioner may appeal against that award to this Court. In any event, the test would be the similar. more than one person earning below the determined income threshold (can) pursue an unfair discrimination case based on equal pay for equal work in an arbitration before the CCMA. item 4(3), not informed of right to refer matter to CCMA JR1374/11 Zungo v Mantshule and Others (JR1374/11) [2016] ZALCJHB 291 (29 July 2016) Employee informed of right to appeal dismissal but not reminded of right to refer matter to CCMA, there can be no automatic right to condonation if there has been such a failure. although item 4(3) may not constitute a substantive provision of our law, it is not entirely meaningless Unfair suspension, not awarding compensation JR1871/14 Imatu obo Senkhane v Emfuleni Local Municipality and Others (JR1871/14) [2016] ZALCJHB 296 (29 July 2016) In my view, if the arbitrator had taken these factors into account, the arbitrator would, on the probabilities, have come to a different result, that is, that compensation is appropriate in the circumstances of this case. This is because these factors were materially relevant to the decision and carried a lot of weight. In these circumstances, the decision of the arbitrator not to award compensation is Prima facie unreasonable. : (i) the respondent had a legal duty to set the suspension aside once three months had elapsed and this duty was not dependent on a demand from the union; (ii) the respondent kept the employee on suspension for 17 months, knowing full well that it had no justification for same; (iii) the suspension adversely affected the dignity of the employee; and (iv) the respondent ought to be penalised to deter further comparable offending conduct. No notice of conciliation to Employer JS542/16 Association of Mineworkers and Construction Union and Others v Tshipi E Entle Manganese Mining (Pty) Ltd (JS542/16) [2016] ZALCJHB 375 (20 September 2016) The issue in that case pertained to whether there was actual service of the referral dispute on one of the alleged employer parties. The issue however in this case is whether there was substantial compliance with the provisions of section 191 (3) read together with those of Rules 5 and 6 of the CCMA Rules. As compared to Intervalve where there was no service of the referral at all on the one party, it is my view that in this case, there was substantial compliance. Compensation JR2899/2012 Super Squad Labour Brokers v Sehunane N.O. and Others (JR2899/2012) [2016] ZALCJHB 399 (14 October 2016) Ferodo (Pty) Ltd v De Ruiter (Ferodo) (1993) 14 ILJ 974 (LAC). the factors that need to be taken into account in assessing the quantum of compensation to an employee was summarised. Postponement: refusal JR2899/2012 Super Squad Labour Brokers v Sehunane N.O. and Others (JR2899/2012) [2016] ZALCJHB 399 (14 October 2016) nothing precluded the Commissioner from directing the Applicant to pay the employees wasted costs occasioned by a postponement. This would also apply in a situation where the Applicant has not made an application for a postponement timeously or is otherwise to blame with respect to procedure not being followed (but where justice nonetheless justified such a postponement in the particular circumstances of the case, as in casu). [46] The refusal of the postponement undoubtedly prejudiced the Applicant. This prejudice was so significant that it effectively deprived the Applicant of presenting its case for consideration prior to the award being made. This in itself renders the refusal of the postponement application by the Commissioner grossly irregular. Fundi Projects and Distributors (Pty) Ltd v CCMA and Others(2006) 27 ILJ 1136 (LC) at paras 12 13. Referral to conciliation JS945/2011 Marule v Fidelity Supercare Cleaning (Pty) Ltd (JS945/2011) [2016] ZALCJHB 542 (28 November 2016) Referral for conciliation is indispensable National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and others(2015) 36 ILJ 363 (CC), [34] Where no certificate has been issued because there was, for example, no conciliation meeting, but a period of 30 days from the date when the council received the referral has elapsed, the statute conspicuously does not provide that the expiry of the 30 day period is sufficient proof that an attempt was made to conciliate the dispute. It is, in my view, in that situation that the Labour Court may, in terms of section 157 (4) (a), refuse to determine the dispute. This provision cannot assist in a case where the dispute was not even referred to conciliation. Section 157 (4) (a) underlines the importance the LRA places upon the need for attempts to be made to try and resolve the dispute through conciliation before resorting to other methods of resolution. [40] Referral for conciliation is indispensable. It is a precondition to the Labour Courts jurisdiction over unfair dismissal disputes. sanction JR1676/14 L A Crushers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1676/14) [2017] ZALCJHB 80 (8 March 2017) An arbitrator has no powers to determine the sanction afresh. His duty is to determine whether the sanction imposed by the employer is a fair one or not. In doing so he applies his own sense of fairness and need not defer to the employer. An arbitrator who interferes with the sanction of dismissal in the circumstances where there is no basis to conclude that the sanction is unfair commits a reviewable irregularity and does not act in accordance with the Labour Relations Act 66 of 1995. His award is bound to be unreasonable and reviewable in accordance with the Sidumo test. Quest Flexible Staffing Solutions (Pty) Ltd v Abram Legoabe [2014] ZALAC 55; [2015] 2 BLLR 105 (LAC). In Sidumo, the Constitutional Court held that a Commissioner is not empowered to establish afresh what the appropriate sanction is, but rather to decide whether the employers decision to dismiss is fair. In making this determination, the commissioner should not defer to the decision of the employer but should weigh up all the relevant factors, including the importance of the rule that has been breached, the reason the employer imposed the sanction of dismissal, the harm caused by the employees conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of the dismissal on the employee, and the employees service record. These factors are, however not considered by the Constitutional Court to be an exhaustive list. Hence other relevant factors that may warrant consideration in assessing the fairness of a sanction include the seriousness of the misconduct, the effect of such conduct on the continuation of the employment relationship, the nature of the job and the circumstances of the infringement.. . .In addition, the appellant regarded seriously disrespectful conduct, of the nature committed by the respondent, as an offence that warranted dismissal on the first occasion. Its code of conduct provides as much. In failing or refusing to demonstrate any acceptance of wrongdoing or remorse, the respondent rendered the continued employment relationship with the appellant intolerable and undermined the applicability of corrective or progressive discipline. Dismissing the individual applicant: Matrix JR755/14 PSA OBO Rae v General Public Services Sectoral Bargaining Council and Others (JR755/14) [2017] ZALCJHB 410 (6 April 2017) [37]Therefore, in terms of Sidumo, what the second respondent had to do was to determine if the third respondent as employer in dismissing the individual applicant acted fairly, and in doing so had to consider the totality of circumstances with reference to all the factors referred to above, as established by the factual matrix before the second respondent as a whole. Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 94. In terms of the Sidumo judgment, the commissioner must (a) take into account the totality of circumstances (para 78);(b) consider the importance of the rule that had been breached (para 78);(c) consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal (para 78);(d) consider ''the harm caused by the employee's conduct (para 78);(e) consider ''whether additional training and instruction may result in the employee not repeating the misconduct;(f) consider ''the effect of dismissal on the employee (para 78);(g) consider the employee's service record. The Constitutional Court emphasized that this is not an exhaustive list. The commissioner would also have to consider the Code of Good Practice: Dismissal and the relevant provisions of any applicable statute including the Act. Vodacom (Pty) Ltd v Byrne NO and Others (2012) 33 ILJ 2705 (LC) at para 9. the determination of the fairness of a dismissal required a commissioner to form a value judgment, one constrained by the fact that fairness requires the commissioner to have regard to the interests of both the employer and the worker and to achieve a balanced and equitable assessment of the fairness of the sanction Wasteman Group v SA Municipal Workers Union and Others (2012) 33 ILJ 2054 (LAC) at 2057G-I. The commissioner is required to come to an independent decision as to whether the employer’s decision was fair in the circumstances, these circumstances being established by the factual matrix confronting the commissioner. Theewaterskloof Municipality v SA Local Government Bargaining Council (Western Cape Division) and Others (2010) 31 ILJ 2475 (LC) at para 19. Various components must be placed in the scales: an objective analysis of the particular facts of the case; adequate regard to the applicable statutory and policy framework; and adequate regard to the pertinent jurisprudence as developed by the courts. Only then can a value judgment, properly so called as a comparative balancing of competing factors, be made by the commissioner, producing as an end result an impartial answer to the central question whether or not the dismissal was fair. Reaching a value judgment in relation to competing factors will in many cases be fairly straightforward but in others it may be helpful to conduct the comparison process with reference to a common question, being how the factor relates to the relevant features of the employer's operational requirements. A proper assessment of those requirements underlies the determination of what is fair and at the same time provides an objective framework for a value to be placed on one factor and another. Maepe v Commission for Conciliation, Mediation and Arbitration and Another (2008) 29 ILJ 2189 (LAC) at para 8. See also Pack 'n Stack v Khawula NO and Others (2016) 37 ILJ 2807 (LAC) at paras 19 20. Although a commissioner is required to give brief reasons for his or her award in a dismissal dispute, he or she can be expected to include in his or her brief reasons those matters or factors which he or she took into account which are of great significance to or which are critical to one or other of the issues he or she is called upon to decide. While it is reasonable to expect a commissioner to leave out of his reasons for the award matters or factors that are of marginal significance or relevance to the issues at hand, his or her omission in his or her reasons of a matter of great significance or relevance to one or more of such issues can give rise to an inference that he or she did not take such matter or factor into account. Sanction: Taking a leaf out of the book of the judgment in Mediterranean Textile Mills, I decide that back pay should be limited to 12(twelve) months’ salary. JR755/14 PSA OBO Rae v General Public Services Sectoral Bargaining Council and Others (JR755/14) [2017] ZALCJHB 410 (6 April 2017) Equity Aviation Services Ltd v Commission for Conciliation, Mediation and Arbitration and Others The legislative structure for the resolution of unfair dismissal disputes is clear and coherently crafted. The LRA allows for any of the three remedies set out in s 193(1) to be granted to an unfairly dismissed employee. Reinstatement or re-employment remains the legislatively preferred remedy so as to restore the employee to the employment relationship. They safeguard the employee's security of employment. Either of the two remedies may be granted except in the specified circumstances set out in s 193(2) in which case compensation in terms of s 193(1)(c)may be ordered, the amount of which depends on the nature of the dismissal. SA Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others The correct approach to adopt when the dismissal has been found to be unfair, is first to consider the provisions of s 193(1) and then s 193(2) to determine which of the three remedies reinstatement, re-employment or compensation may be granted. This is buttressed by these remarks by Zondo J[62]:Once the Labour Court or an arbitrator has found a dismissal unfair, it or he is obliged to consider which one of the remedies listed in s 193(1) is appropriate, having regard to the meaning of s 193(2). Considering both the provisions of s 193(1) and s 193(2) is important because one cannot adopt the attitude that dismissal is unfair, therefore, reinstatement must be ordered. The Labour Court or an arbitrator should carefully consider the options of remedies in s 193(1) as well as the effect of the provisions of s 193(2) before deciding on an appropriate remedy. A failure to have regard to the provisions of s 193(1) and (2) may lead to the court or arbitrator granting an award of reinstatement in a case in which that remedy is precluded by s 193(2). [88] ...reinstatement is the primary remedy for a substantively unfair dismissal, and must follow a finding of unfair dismissal, unless it can be shown by the employer or be apparent from the evidence that one of the special circumstances in Section 193(2) exist. Boxer Superstores (Pty) Ltd v Zuma and Others Reinstatement is in effect, the default position. [89] ...Section 193(2)(b) employment relationship intolerability, and Section 193(2)(c) reasonable practicability. Mediterranean Textile Mills at the conclusion of each case it remains the responsibility of the court or the arbitrator to determine whether or not, on the evidentiary material properly presented and in the light of the Equity Aviation principle, it can be said that the reinstatement order is justified. In other words, even in a situation such as the present, where no specific evidence was canvassed or submissions made during the trial on the issue of the non-reinstatable conditions, the court or the arbitrator is not only entitled but, in my view, is obliged to take into account any factor which in the opinion of the court or the arbitrator is relevant in the determination of whether or not such conditions exist. Xstrata An employer wishing to avoid reinstatement must satisfy the arbitrator that one of the exceptions to reinstatement applies, in this case to show that it would not be practicable. The employer should lead evidence concerning relief in anticipation of a finding that a dismissal might be ruled unfair. Eskom Holdings Ltd v Fipaza and Others The enquiry that determines the issue of whether or not reinstatement should be ordered has as its focal point the underlying notion of fairness between both the employer and the employee which 'ought to be assessed objectively on the facts of each case bearing in mind that the core value of the LRA is security of employment' [90] ...what could constitute reasonably practicable as contemplated by Section 193(2)(c) Xstrata The object of s 193(2)(c)of the LRA is to exceptionally permit the employer relief when it is not practically feasible to reinstate; for instance, where the employee's job no longer exists, or the employer is facing liquidation, relocation or the like. The term 'not reasonably practicable' in s 193(2)(c)does not equate with 'practical', as the arbitrator assumed. It refers to the concept of feasibility. Something is not feasible if it is beyond possibility. The employer must show that the possibilities of its situation make reinstatement inappropriate. Reinstatement must be shown not to be reasonably possible in the sense that it may be potentially futile. An employee's length of service, the delay in the arbitration and alleged untested shortcomings in capacity are not normally relevant to the question of practicability. ... If the exceptions to the remedy of reinstatement do not apply, the Labour Court and arbitrators only have a discretion with regard to the extent to which reinstatement should be made retrospective. [90] ...the employee had not worked for the employer for a considerable period of time as a relevant factor in coming to the conclusion that reinstatement was not reasonably practicable. Republican Press (Pty) Ltd v CEPPWAWU and Others[70] ... While the Act requires an order for reinstatement or re-employment generally to be made a court or an arbitrator may decline to make such an order where it is "not reasonably practicable" for the employer to take the worker back in employment. Whether that will be so will naturally depend on the particular circumstances, but in many cases the impracticability of resuming the relationship of employment will increase with the passage of time Eskom Holdings CCMA continued Postponement: Formal JR822/15, JR769/15, JR974/15 Impala Platinum Refineries Limited v National Union of Mineworkers obo Retselisitsoe and Others (JR822/15, JR769/15, JR974/15) [2017] ZALCJHB 150; [2017] 10 BLLR 1032 (LC) (10 May 2017) [29] Contrary to the first respondents contention, in my view it would have been unreasonable in the circumstances to expect the applicant to make a formal application for a postponement as contemplated in Rule 23 of the CCMA Rules, for the applicant did not consider it necessary to do so. This Court has held that mere non-compliance with the rule relating to postponements is not adequate reason for declining an application for a postponement. NF Die Casting (Pty) Ltd v Metal and Engineering Bargaining Council and Others [2002] BLLR 560 (LC) at [23] and [25] Insurance and Banking Staff Association and Others v SA Mutual Life Assurance Society(2000) 21 ILJ 386 (LC) [32] It follows that the commissioner should have considered, inter alia:32.1 whether it was in the interest of justice and fairness that the postponement be granted or refused;32.2 what prejudice was likely to be suffered by either party should the postponement be granted or refused;32.3 whether such prejudice could be cured by an appropriate costs order; and32.4 whether the application was bona fine or a mere tactical manoeuvre. Petzer v Independent Broadcasting Authority (2000) 5 LLD 409 (LC) at 410, Massstores (Pty) Ltd t/a Builders Warehouse v CCMA and Others [2006] 6 BLLR 577 (LC) Keerom Casa Hotel v Heinrichs and Another [1999] 1 BLLR 27 (LC) certificate J949/17 South African Airways (Soc) Ltd v South African Cabin Crew Association and Others (J949/17) [2017] ZALCJHB 158 (10 May 2017) Vodacom (Pty) Ltd v Communication Workers Union (2010) 31 ILJ 2060 (LAC) at para 11. In this particular case, it is common cause that there was a collective agreement which applied. Accordingly whatever certificate may have been produced and may have been shown to the employer, the certificate cannot override the clearly stated limitation upon the right to strike as contained in s65(1)(a). In short, a certificate can in no way trump the clear provisions of the limitation. For this reason, the court aquo erred in its approach to the law. It should not have held that the certificate issued in terms of s 64 provided an unqualified and unlimited 'passport' to the employees to strike, no matter the provisions of s65(1)(a),as I have outlined them. Strautmann v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg & Bean Suncoast and Others (2009) 30 ILJ 2968 (LC) at para 9 When a commissioner completes form 7.12 and categorizes the dispute referred to the CCMA by ticking one of the boxes provided, the commissioner does not make a jurisdictional ruling. Nor does the ticking of any of the boxes marked "CCMA arbitration", "Labour Court" "None" or "Strike/Lockout" amount to a ruling on which of those courses of action must be pursued by a referring party. Bombardier Transportation (Pty) Ltd v Mtiya NO and Others (2010) 31 ILJ 2065 (LC) at para 14. See also Mbele and Others v Chainpack (Pty) Ltd and Others (2016) 37 ILJ 2107 (LC) at paras 31 32; Cook4life CC v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 2018 (LC) at paras 8 9. a certificate of outcome is no more than a document issued by a commissioner stating that, on a particular date, a dispute referred to the CCMA for conciliation remained unresolved. It does not confer jurisdiction on the CCMA to do anything that the CCMA is not empowered to do, nor does it preclude the CCMA from exercising any of its statutory powers. In short, a certificate of outcome has nothing to do with jurisdiction. If a party wishes to challenge the CCMA's jurisdiction to deal with an unfair dismissal dispute, it may do so, whether or not a certificate of outcome has been issued. Helderberg International Importers (Pty) Ltd v McGahey NO and Others (2015) 36 ILJ 1586 (LAC) at para 11. I align myself with the conclusions reached in the Bombardier judgment, as have a number of other decisions in this court, that a certificate of outcome has no legal significance beyond a statement that the dispute referred to conciliation has been conciliated and was resolved or remained unresolved, as the case may be. jurisdiction: Discrimination the CCMA cannot decline jurisdiction over disputes simply because parties would like to pursue their matters in this court CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC)at para 66 In deciding what the real dispute between the parties is, a commissioner is not necessarily bound by what the legal representatives say the dispute is. The labels that the parties attach to a dispute cannot change its underlying nature. A commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union and the evidence presented during the arbitration ...The dispute between the parties may only emerge once all the evidence is in Hospersa obo Tshambi v Department of Health, KwaZulu-Natal [2016] 7 BLLR 649 (LAC) at para 16 was held that there is an obligation on Commissioners to determine the true dispute between the parties, to establish the relevant facts, to construe the category of dispute correctly, and to make an objective finding about what is the dispute to be determined. This exercise might appear onerous, but it is however necessary in order to prevent instances where disputes end up in this Court when they should have been arbitrated. Equally so, this court is enjoined to ascertain the true nature of the dispute between the parties[25], and it does not necessarily have to rely on how the parties have pleaded their cases. National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another (2003) 24 ILJ 305 (CC) at para 52 It is the duty of a court to ascertain the true nature of the dispute between the parties. In ascertaining the real dispute, a court must look at the substance of the dispute and not at the forum in which it is presented. The label given to a dispute by a party is not necessarily conclusive. The true nature of the dispute must be distilled from the history of the dispute, as reflected in the communications between the parties and between the parties and the Commission for Conciliation, Mediation and Arbitration (CCMA), before and after referral of such dispute. These would include referral documents, the certificate of outcome and all relevant communications. It is also important to bear in mind that parties may modify their demands in the course of discussing the dispute or during the conciliation process. All of this must be taken into consideration in ascertaining the true nature of the dispute. jurisdiction: Absconded JR1365/1 Msibi and Others v CCMA and Others (JR1365/13) [2017] ZALCJHB 245 (22 June 2017) [2] On review, Wilken AJ found that the evidence before the Commissioner indicated that the applicants had in fact been dismissed because the company was of the view that the applicants had absconded. He found that the Commissioner had obviously failed to investigate these facts and deal with the real issue before him, namely a dismissal for misconduct and whether it had been a fair dismissal. SABC v CCMA and Others (2002) 8 BLLR 693 (LAC). was held that desertion necessarily entails the employees intention no longer to return to work and that the employer would have to establish this intention in a fair process. I would add that mere absence and unexplained absence is not conclusive proof of an unequivocal intention not to return. Employees must be called upon to show cause why the employer should not treat their absence as an intention not to return to work. Up to the point when the intention not to return is established the absent employees are simply absent without leave. Hearing de novo JR1052/13 Passenger Rail Agency of South Africa (PRASA) v Commission for Conciliation Mediation and Arbitration and Others (JR1052/13) [2017] ZALCJHB 287 (4 August 2017) The fact that the commuter did not give evidence at the internal disciplinary hearing was entirely irrelevant. It is certainly not a basis on which to reject the evidence of all of the applicants witnesses, or to call their credibility into question. On this basis alone, the arbitrators award stands to be reviewed and set aside. postponement JR1870/14 Wade Walker (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1870/14) [2017] ZALCJHB 296; (2017) 38 ILJ 2842 (LC) (8 August 2017) This being the test for reasonableness set in Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28ILJ2405 (CC) at para 110. he acted unreasonably in refusing the postponement. In relation to the latter, in circumstances where the matter was heard little more than a month after the employees dismissal, where the employee agreed to a postponement, and where, in the circumstances, the balance of prejudice overwhelmingly favoured the grant of a postponement, a reasonable commissioner would not have refused the postponement Disciplinary enquiry: section 188A J492/201 Msagala v Transnet Soc Ltd and Others (J492/2017) [2017] ZALCJHB 370; (2018) 39 ILJ 259 (LC); [2018] 2 BLLR 193 (LC) (9 October 2017) [7] What is this formulation suggests is that an agreement concluded in terms of s188A is one that abandons any workplace disciplinary process in favour of an arbitration hearing which would ordinarily have been conducted post dismissal by the employer. An arbitrator appointed in terms of the section must consider the evidence presented and decide what sanction, if any, is to be issued against the employee. Of some significance use the fact that the arbitrator is subject provisions of s 138, and he or she enjoys all the powers conferred on commissioners in those provisions of s 142 referred to in s 188A (7). The arbitrator is not bound by the employers disciplinary code and procedure, nor obliged to give effect to it either in terms of the prescribed process all any recommended or prescribed penalties. The arbitrator must decide on a balance of probabilities without the misconduct alleged was committed, and if so, exercise a value judgement as to an appropriate sanction. That judgement is reviewable in terms of s 145. All of these provisions indicate that the arbitrator does not sit as the employers agent or representative he or she is expected to discharge a statutory function by the exercise of statutory powers subject to the statutory criteria of fairness. Stated case JR2134/15 Department of Home Affairs v General Public Service Sectoral Bargaining Council and Others (JR2134/15) [2017] ZALCJHB 400; (2018) 39 ILJ 248 (LC) (17 October 2017) Hillside Aluminium (Pty) Ltd v Mathuse & others (2016) 37 ILJ 2082 (LC), in which Prinsloo J held that the acceptance of documents as constituting evidence at arbitration is an extraordinary scenario and requires an explicit and clear agreement between the parties,[7] and that the reliance on documents as constituting evidence in the absence of such an agreement constitutes a reviewable irregularity.[8] In the present matter, the commissioner went wrong in precisely this manner. SA Social Security Agency v National Education Health & Allied Workers Union on behalf of Punzi & Others (2015) 36 ILJ 2345 (LC), in which Rabkin-Naicker J found that she could not comprehend how a dispute which hinges on the fairness of the conduct of an employer can be decided (in the absence of a stated case) without parties giving oral evidence.[9] In setting aside the award, the court went on to find: [8] In the absence of such a stated case, oral evidence should be led on the material facts in dispute at arbitrations in terms of the LRA. Commissioners and arbitrators should not condone an agreement between parties that no oral evidence be led unless such a stated case has been agreed, and on which they may draw legal conclusions. Although parties may regard submitting documents and argument as a fast way of resolving a dispute on the day of arbitration, it in fact renders the award issued susceptible to review. In the result, the principle of speedy resolution of disputes is ultimately sacrificed. Arends & others v SA Local Government Bargaining Council & others (2015) 36 ILJ 1200 (LAC) [15] When parties desire to proceed without oral evidence in the form of a special case, it is imperative that there should be a written statement of the facts agreed by the parties, akin to a pleading. Otherwise, the presiding officer may not be in a position to answer the legal question put to him. Alternatively, without such a statement, the question put is in danger of being abstract or academic. Where a question of legal interpretation is submitted to an arbitrator, the parties must set out in the stated case a factual substratum which shows what has arisen and how it has arisen. The stated case must set out agreed facts, not assumptions. The purpose of the rule is to enable a case to be determined without the necessity of hearing the evidence. An oral stated case predicated upon poorly ventilated and potentially unshared assumptions as to the facts defeats the purpose of the requirements of a stated case and, as this case shows, will lead to problematic results.[16] Rule 20(1) of the Rules for the Conduct of Proceedings before the CCMA (which might be followed in proceedings before bargaining councils) allows for a pre-arbitration conference at which the parties must attempt to reach consensus inter alia on the agreed facts, the issues to be decided, the precise relief claimed and the discovery and status of documentary evidence. The parties in this case did not engage in a proper pre-arbitration process with the aim of agreeing a stated case. Although the CCMA Rules do not include provisions equivalent to the provisions of rule 33(1) and (2) of the Rules of the High Court, parties who prefer to proceed by way of a stated case at the CCMA or before a bargaining council, in my view, should follow their prescriptions. These rules provide that the parties to any dispute may, after the institution of proceedings, agree upon a written statement of facts in the form of a special case for the adjudication of the court. Such statement shall set forth the facts agreed upon, the questions of law in dispute between the parties, their contentions thereon and shall be divided into consecutively numbered paragraphs. The parties must annex to the statement copies of documents necessary to enable the court to decide upon such questions.[17] Practitioners must follow these rudimentary elements of good practice when intending to proceed on the basis of a stated case. An arbitrator faced with a request to determine a special case where the facts are inadequately stated should decline to accede to the request. In this instance, the arbitrator did not do that. PSA v Minister of Correctional Service [2017] 4 BLLR 371 (LAC), in which Musi JA quoted the entire passage from Arends set out above for the sake of emphasis and to focus arbitrators attention on best practice.[10] In the result, the LAC upheld this court’s decision to set aside the award which determined an interpretation dispute based on a stated case, which did not contain an agreed factual matrix. As Musi JA put it, the commissioner could not apply his mind properly to the issue before him without a factual substratum, and [h]e should have refused to deal with the matter without an agreed set of facts.[11] [27] In the present matter, the commissioner also went wrong in precisely the manner contemplated in SA Social Security Agency, Arends and PSA. In circumstances where the parties decided to proceed without oral evidence, the commissioner ought to have ensured that a stated case was concluded, which ought to have set out, inter alia, the agreed facts and incorporated documents on an agreed basis. Heads of argument based on the stated case could then have been submitted. As found in Arends, by failing to follow this process - [19] [t]he enquiry was undertaken in the wrong manner with the result that the appellants were denied their right to have their case fully and fairly determined. The principal cause of that denial or failure was the inept manner in which the case was put before the arbitrator. Be that as it may, the undertaking of the enquiry in the wrong or in an unfair manner by an arbitrator is an irregularity in the conduct of the proceedings reviewable in terms of s 145 of the LRA as suffused by the constitutional right to administrative action that is lawful and procedurally fair. [28] ...the commissioner did not place himself in a position to fully and fairly resolve the dispute, and thereby deprived the department of its right to procedurally fair administrative action (a patent gross irregularity), which gives rise to a review irrespective of the merits of the outcome of the award. compensation: procedural unfairness JR541/14 Old Mutual Life Assurance Company South Africa Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR541/14) [2017] ZALCJHB 381 (19 October 2017) [78] On procedural fairness, having found that the commissioners finding in this regard was beyond reproach, I am of the view that a compensation of three months’ salary is just and equitable, having considered that Dr Mathoma was dismissed for serious charges (gross negligence and dishonesty) and the extent of the procedural defect (mitigation and perception of biasness) compensation: nature of award JR06/16 Road Traffic Management Corporation v Commission for Conciliation, Mediation and Arbitration and Others (JR06/16) [2017] ZALCJHB 386; (2018) 39 ILJ 887 (LC) (19 October 2017) "29] The remaining case is nothing but a suggestion that compensation of ten months is too much. Whether the amount of compensation awarded is unacceptable to the Applicant is irrelevant as the true enquiry is whether the arbitrator exercised her discretion judicially.[30] It is trite that the courts should not too readily interfere with the quantum of compensation where the quantum was determined by the exercising of a discretion. However, in cases where the discretion was not exercised judicially or where it was exercised capriciously or biased or based on the wrong principle or approach or not for a substantial reason, the court may interfere.[31] In the application before this Court the Applicant did not make a single averment to the effect that the arbitrator acted capriciously, or upon the wrong principle, or with bias, or that the arbitrator adopted an incorrect approach. All that is evident from the application before me is the Applicants unhappiness that it was ordered to pay ten months remuneration as compensation." Fouldien and others v House of Trucks (Pty) Ltd (2002) 23 ILJ 2259 (LC) at para 16. The right to compensation is a contingent right which rests on the finding regarding the substantive and procedural fairness of a dismissal. It is a discretionary remedy, although it is hedged by limitations on the quantum which can be ordered. It is, of course, a discretion which must be exercised judicially.' Dr DC Kemp t/a Centralmed v Rawlins [2009] 11 BLLR 1027 (LAC) The importance if the distinction between a discretion that is exercised in terms of section 193(1)(c) and a discretion that is exercised in terms of section 194(1) is how the reviewing court will consider the matter. When the discretion that is challenged is a discretion such as the one exercised in terms of section 194(1) the test that the court, called upon to interfere with the discretion, will apply is to evaluate whether the decision maker acted capriciously, or upon the wrong principle, or with bias, or whether or not the discretion exercised was based on substantial reasons or whether or not the decision maker adopted an incorrect approach. MEC for Environmental Affairs and Development Planning v Clairisons CC 2013 (6) SA 235 (SCA) paras 18 and 20. When the law entrusts a functionary with a discretion it means just that: the law gives recognition to the evaluation made by the functionary to whom the discretion is entrusted, and it is not open to a court to second-guess his evaluation. The role of a court is no more than to ensure that the decision-maker has performed the function with which he was entrusted.. The law remains, as we see it, that when a functionary is entrusted with a discretion, the weight to be attached to particular factors, or how a particular factor affects the eventual determination of the issue, is a matter for the functionary to decide, and as he acts in good faith (and reasonably and rationally) a court of law cannot interfere. 29] The remaining case is nothing but a suggestion that compensation of ten months is too much. Whether the amount of compensation awarded is unacceptable to the Applicant is irrelevant as the true enquiry is whether the arbitrator exercised her discretion judicially.[30] It is trite that the courts should not too readily interfere with the quantum of compensation where the quantum was determined by the exercising of a discretion. However, in cases where the discretion was not exercised judicially or where it was exercised capriciously or biased or based on the wrong principle or approach or not for a substantial reason, the court may interfere.[31] In the application before this Court the Applicant did not make a single averment to the effect that the arbitrator acted capriciously, or upon the wrong principle, or with bias, or that the arbitrator adopted an incorrect approach. All that is evident from the application before me is the Applicants unhappiness that it was ordered to pay ten months remuneration as compensation. reinstatement JR667/201 Ziqubu v Commission for Conciliation, Mediation and Arbitration and Others (JR667/2012) [2017] ZALCJHB 505 (25 October 2017) The commissioner found that the employees dismissal was substantively unfair as there were no fair reasons for dismissal but relied on same unproven charges to refuse reinstatement. The facts of the case did not trigger section 193(a-d) and the commissioner thus did not have a discretion not to reinstate. [43] In conclusion, the commissioners reasons as contained in the award for the refusal to reinstate the Applicant is thus a decision a reasonable commissioner could not have arrived at. Equity Aviation Services Pty Ltd v Commission for Conciliation, Mediation and Arbitration and Others 2009 (2) BCLR 111 (CC) at para 36. The ordinary meaning of the word reinstate is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers employment by restoring the employment contract. Differently put, if the employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal National Health and Allied Workers Union (NEHAWU) v University of Cape Town and Others 2003 (2) BCLR 154 (CC). 18] It is axiomatic from section 193 of the LRA and the Equity Aviation and NEHAWU cases supra that reinstatement is the primary remedy in unfair dismissal disputes and is aimed to secure employment for an employee who suffered the brunt of unfair dismissal. Maepe v Commission for Conciliation, Mediation and Arbitration and Another [2008] ZALAC 2; (2008) 8 BLLR 723 (LAC) at par.13 Section 193(2) of the Act obliges-it uses the word must- the Labour Court or an arbitrator must order the employer to reinstate or re-employ the employee whose dismissal he had found to be unfair for lack of a fair reason or whose dismissal he had found to be automatically unfair, unless one or more of the situations set out in Section 193(2)(a)-(d) applies(14) The situation envisaged in par (b) is where the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable. It is possible that in so far as the giving of false evidence under oath may have occurred in the disciplinary inquiry before the dismissal, it could be said that it is one of the circumstances surrounding the dismissal, particularly where it was one of the factors that were taken into account in making the decision to dismiss(16) What I have just said in the preceding paragraph means that if a case falls under one or other of the situations listed in section 19392) (a)-(d), it is not competent for the Labour Court or an arbitrator to order reinstatement or re-employment. This is because section 193(2) makes provision as to when reinstatement or re-employment must be ordered and when it must not be ordered. In effect, it says that reinstatement or re-employment must be ordered in all cases except those listed in section 193(2)(a)-(d) Sibeko v Xstata Coal South Africa and Others (JR2189/13) [2016] ZALCJHB 90; (2016) 37 ILJ 1230 (LC) (3 February 2016) at para 12. Dealing first with section 193(2), it is clear from the Maepe judgment and more particularly paragraph (14) thereof, about when is permissible for a commissioner not to award reinstatement because the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable. As appears from that paragraph, the circumstances which can be taken into account are those which prevailed at the time of the dismissal and not thereafter. David Themba v Mintroad Sawmills (Pty) Ltd [2015] 2 BLLR 174 (LC) at para 23. When it comes to retrospectivity of reinstatement, this is however, a completely different issues. Reinstatement is not necessarily coupled with retrospectivity and is not a sine qua non of it. Retrospectivity of reinstatement is a separate discretion that must be exercised by the arbitrator or the judge when deciding to award reinstatement. Retrospectivity in simple terms relates to what is commonly known as back pay and constitutes what the arbitrator or judge expects an employer to pay the employee for the time the employee has been languishing without remuneration as a result of the employees unfair dismissal CCMA continued compensation: procedural unfairness JA16/16 South African Medical Association obo Pietz v Department of Health - Gauteng and Others (JA16/16) [2017] ZALAC 25; [2017] 9 BLLR 923 (LAC); (2017) 38 ILJ 2297 (LAC) (4 May 2017) Kemp t/a Centralmed v Rawlins, [22] I do not think that the provisions of s 193(1)(c) of the Act give the Labour Court or an arbitrator the kind of power which would enable it or him to grant or refuse an order of compensation on identical facts as it or he sees fit. In my view the ultimate question that the Labour Court or an arbitrator has to answer in order to determine whether compensation should or should not be granted is: which one of the two options would better meet the requirements of fairness having regard to all the circumstances of this case? If the court or arbitrator answers that the requirements of fairness, when regard is had to all of the circumstances, will be better met by denying the employee compensation, no order of payment of compensation should be made. If the court or arbitrator answers that the requirements of fairness will be better met by awarding the employee compensation, then compensation should be awarded. When that question is answered, the interests of both the employer and the employee must be taken into account together with all the relevant factors. In my view, where the court or an arbitrator decides the issue of whether or not to award the employee compensation, it does not exercise a true discretion or a narrow discretion. The determination of that question or issue requires the passing of a moral or value judgment. It is decided or determined on the basis of the conceptions of fairness because the court or arbitrator has to look at all the circumstances and say to itself or himself or herself as the case may be: What would be more in accordance with justice and fairness in this case? Would it be to award compensation or would it be to refuse to award compensation? It or he or she would then have to make the decision in accordance with its, his or her sense of which of the two options would better serve the requirements of justice and fairness. The Court proceeded as follows at 2696-2697 para 55:'The importance of the distinction between a discretion that is exercised in terms of s 193(1)(c) and a discretion that is exercised in terms of s 194(1) is how the reviewing court will consider the matter. When the discretion that is challenged is a discretion such as the one exercised in terms of s 194(1) the test that the court, called upon to interfere with the discretion, will apply is to evaluate whether the decision maker acted capriciously, or upon the wrong principle, or with bias, or whether or not the discretion exercised was based on substantial reasons or whether the decision maker adopted an incorrect approach. When dealing with a discretion however such as provided in s 193(1)(c), the court must consider if the arbitrator or the Labour Court properly took into account all the factors and circumstances in coming to its decision and that the decision arrived at is justified. In essence therefore, a review of a discretion exercised in terms of s 193(1)(c) is essentially no different to an appeal because the reviewing court will be required to consider all the facts and circumstances which the arbitrator or the Labour Court had before it and then decide based on a proper evaluation of those facts and circumstances whether or not the decision was judicially a correct one. (My emphasis) Kemp t/a Centralmed v Rawlins (supra) 76.1 Insofar as the dismissal is procedurally unfair, the nature and extent of the deviation from the procedural requirements; the less the employer's deviation from what was procedurally required, the greater the chances are that the court or arbitrator may justifiably refuse to award compensation; obviously, the more serious the employer's deviation from what was procedurally required, the stronger the case is for the awarding of compensation.76.2 Insofar as the reason for dismissal is misconduct, whether the employee was guilty or innocent of the misconduct; if he was guilty, whether such misconduct was in the circumstances of the case not sufficient to constitute a fair reason for the dismissal.76.3 The consequences to the parties if compensation is awarded and the consequences to the parties if compensation is not awarded.76.4 The need for the courts, generally speaking, to provide a remedy where a wrong has been committed against a party to litigation but also the need to acknowledge that there are cases where no remedy should be provided despite a wrong having been committed even though these should not be frequent. (b) The commissioners decision not to award compensation is reviewed and set aside; bias on the part of the commissioner JA53/16 Grindrod Logistics (Pty) Ltd v SATAWU obo Kgwele and Others (JA53/16) [2017] ZALAC 60; (2018) 39 ILJ 144 (LAC) (18 October 2017) Satani v Department of Education, Western Cape and Others (2016) 37 ILJ 2298 (LAC) at 2311 para 36. failure to object by a party or its legal representative cannot render an unfair process or conduct fair or acceptable. The test for bias is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend bias.[4] Mere apprehensiveness on the part of a litigant or even a strongly and honestly held anxiety would not be enough. The question to be answered is: what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude.[5] Bernert V ABSA Bank Ltd 2011 (3) SA 92 (CC) at 114 para 75. It is not in the interests of justice to permit a litigant, where that litigant has knowledge of all the facts upon which recusal is sought, to wait until an adverse judgment before raising the issue of recusal. Litigation must be brought to finality as speedily as possible. It is undesirable to cause parties to litigation to live with the uncertainty that, after the outcome of the case is known, there is a possibility that litigation may be commenced afresh, because of a late application for recusal which could and should have been brought earlier. To do otherwise would undermine the administration of justice. At 102 para 35 the Court held:[35] The presumption of impartiality and the double requirement of reasonableness underscore the formidable nature of the burden resting upon the litigant who alleges bias or its apprehension. The idea is not to permit a disgruntled litigant to successfully complain of bias simply because the judicial officer has ruled against him or her. Nor should litigants be encouraged to believe that, by seeking the disqualification of a judicial officer, they will have their case heard by another judicial officer who is likely to decide the case in their favour compensation: fixed term DA10/16 Jorgensen v I Kat Computing (Pty) Ltd and Others (DA10/16) [2017] ZALAC 70; [2018] 3 BLLR 254 (LAC); (2018) 39 ILJ 785 (LAC) (21 November 2017) [23] The compensation awarded to the appellant overlooked the fact that the appellant was on a fixed term contract that had five months to run at the time of his dismissal. There was no cause to award compensation more than his actual loss of income. The award of compensation was not one that a reasonable commissioner would have made and to that extent the compensation should be reduced to an amount of R92 075 being 5 (five) times the difference between what the applicant earned and what he would have earned while employed by the respondent. CCMA / Bargaining Council: jurisdiction vs Labour Court JR1043/16 SAMWU obo Members v Protrans (Pty) Ltd (JR1043/16) [2017] ZALCJHB 218 (30 May 2017) Mr Nguaza on behalf of the 1strespondent made the submission that the applicants in their referral alleged that the reason for the termination is that they participated in an unprotected strike and relying on the provisions of Section 191(1)(5)(b)(iii) he contended that such allegations are to be determined or dealt with by the Labour Court. Indeed that is correct however as the authorities had made it very clear that it is the duty of any administrator to determine the jurisdiction and it appears to me that what the Arbitrator did in this matter was simply to accept the allegation of the employees that they were dismissed for participating in an unprotected strike and actually ignored what appeared to be the true reason of the dismissal, being misconduct. rescission (JR1146/15 Senator International Logistics (Pty) Ltd v Raphela NO and Others (JR1146/15) [2018] ZALCJHB 68 (22 February 2018) its non-attendance was based on a bona fide but mistaken belief that documentation submitted to the CCMA by e-mail would be taken into account by the commissioner and that it would be sufficient to have the employees referral dismissed. MM Steel Construction CC v Steel Engineering and Allied Workers Union of SA and Others (1994) 1 5 ILJ 1310 (LAC) at 1311 I 132a commissioner did not consider the second aspect of the test. On the prospect of success, he simply stated that he was satisfied with the award issued. There is no indication that he considered the applicants submissions on its prospects of success in the arbitration. As such, the commissioner failed to apply the test for good cause Northern Province Local Government Association v CCMA and Other [2001] 5 BLLR 539 (LC) at 545 An application for the rescission of a default judgment must show good cause and prove that he at no time denounced his defence, and that he has a serious intention of proceeding with the case. In order to show good cause an applicant must give a reasonable explanation for his default, his explanation must be made bona fide and he must show that he has a bona fide defence to the plaintiffs claims. arbitration award has been certified in terms of section 143 J1007/15 Mlaudzi v Metro South Towing CC (J1007/15) [2017] ZALCJHB 37 (8 February 2017) no need for section 158(1)(c) order; as this amounts to duplication and delay in enforcing the arbitration award; Both employer and employee are required to comply with the terms of an arbitration award. SATAWU obo Phakathi v Ghekko Services SA (Pty) Ltd and Others (2011) 32 ILJ 1728 (LC). (Ghekko Services) that section158(1)(c) applications are not a prerequisite for contempt proceedings. certificate JS641/16 Dinkelman v Fruit and Veg City Gauteng (Pty) Ltd t/a Foodlovers Market (JS641/16) [2018] ZALCJHB 141 (23 March 2018) being common cause that the applicant was dismissed on 11February2016, I am satisfied that based on the contents of the referral form, and notwithstanding the fact that the certificate of outcome merely reflects an alleged unfair labour practice dispute having been referred, this Court has the requisite jurisdiction to adjudicate the alleged automatically unfair dismissal dispute as claimed in the applicants statement of claim. postponement JR1579/15 Dungelo v Ergo Mining (Pty) Ltd and Others (JR1579/15) [2018] ZALCJHB 166 (3 May 2018) [26] In the face of this Commissioner Wauchope committed a fundamental error of law, which is, in my view, determinative of the matter. Commissioner Wauchope wrongly believed that by reason of the CCMAs prior decision to refuse the first respondents postponement application, he had no power to postpone the arbitration notwithstanding the changed factual situation before him, that is, the unexpected absence of the applicants representative.[27] Commissioner Waucope clearly had the authority to postpone the arbitration by virtue of these new facts. He would have been entitled to either re-visit the first respondents postponement application or to have treated the applicants statement that he was unable to proceed without his representative as a fresh postponement application. compensation JS370/15 Arb Electrical Wholesalers (Pty) Ltd v Hibbert [2015] 11 BLLR 1081 (LAC). [22] The compensation that an employee, who has been unfairly dismissed or subjected to unfair labour practice, may be awarded is not aimed at making good the patrimonial loss that s/he has suffered. The concept of loss or patrimonial loss may play a role to evince the impact of the wrong upon the employee and thus assists towards the determination of appropriate compensation, but compensation under the LRA is a statutory compensation and must not be confused with a claim for damages under the common law, or a claim in delict. Hence, there is no need for an employee to prove any loss when seeking compensatory relief under the LRA.... [15] The court went further to state that compensation under the Act is a solatium, which equates to payment for the impairment of the employees dignity. The individual applicants were humiliated in that they were not afforded their rights under section 189 of the Act. The wrong is not seriously impactful in that the applicants did not suffer any financial loss. However, such does not mean that solatium must not be paid. The LAC in Arb supra, further said:[24] The solatium must be seen as a monetary offering or pacifier to satisfy the hurt feeling of the employee while at the same time penalising the employer. CCMA referral had been withdrawn, and a fresh referral made JR1758/13 Robor Tube (Pty) Ltd v MEIBC and Others (JR1758/13) [2018] ZALCJHB 229; (2018) 39 ILJ 2332 (LC) (21 June 2018) Secondly, there is the compelling analogy with referrals to the CCMA that are withdrawn, and the right of a party to make a fresh referral. The prevailing authority is clearly to the effect that the withdrawal of a matter is not a bar to the reinstitution of proceedings. Ncaphayi v Commission for Conciliation, Mediation and Arbitration & others (2011) 32 ILJ 402 (LC) [27] The second reason relates to the effect of a withdrawal of a referral to conciliation. The LRA does not deal with the withdrawal of matters referred to the CCM a and neither do the rules of the CCM a will stop rule 13 of the Labour Court rules merely deals with the procedure to be followed if a party wishes to withdraw proceedings. It is instructive to note how the High Court has considered the effect of a withdrawal of the matter. It is been held that there was taller the matter by a party is akin to an order of absolution from the instance. Ordinarily, an order of absolution from the instance does not prevent a party from reinstituted proceedings and the defendant absolved in the first proceedings will not be able to raise the exception rei judicatae if sued again on the same course of action.[28] If the withdrawal of a matter in the High Court at a stage when it is ripe for hearing does not necessarily prevent the institution of fresh proceedings, it would be anomalous if the withdrawal of a matter at the conciliation stage of dispute resolution under the LRA when no decision on the merits of the dispute is even possible precluded a party from making a fresh referral. Obviously, if the withdrawal under consideration as part and parcel of the final settlement of the dispute the situation would be quite different. However, in this case, the withdrawal was at the applicants own instance and not an intrinsic part of a settlement agreement SAMWU & others v Commission for Conciliation Mediation and Arbitration (2014) 35 ILJ 2011 (LC) approved of the approach in Ncaphayi and held that the withdrawal of a referral to the CCMA did not preclude a party from making a fresh referral, nor did it deprive the CCMA of jurisdiction to entertain the second referral. determining nature of dispute JA14/2018 Masoga and Another v Pick n Pay Retailers (Pty) Ltd and Others (JA14/2018) [2019] ZALAC 59; [2019] 12 BLLR 1311 (LAC); (2019) 40 ILJ 2707 (LAC) (12 September 2019) [36] In an arbitration, a commissioner is to deal with the substantial merits of the dispute and this is only feasible if the real nature of the dispute is ascertained. Although the commissioner or arbitrator in deciding what the true nature of the dispute is, is not bound by the description given to the dispute in the referral form, or by the legal representatives, he may not ignore those descriptions. It is also important to bear in mind that the labels attached to a dispute cannot change the true nature of the dispute. And it is established that in determining the true nature of the dispute the commissioner or arbitrator is required to take all facts into consideration.[4] compensation [7] ...The premise of a compensation award is to give recognition to an unfair act on the part of the employer, whose decision it was to dismiss and did so unfairly. Compensation in terms of section 194 of the LRA serves purposes broader than mere patrimonial damages, as the express allusion the award of compensation being just and equitable....[13]...the function of sections 193 and 194 is not to yield a quantum based on the concept of positive interest, but rather is premised on the broader consideration of fairness, having weighed the circumstances holistically. [37] In light of the facts of this case, another aspect of this process of establishing the true nature of the dispute, needs mentioning. An award should not be founded on matters (including the real nature of the dispute) that occur to the arbitrator after the hearing, but in respect of which the parties had no opportunity to address him or her on.[Steeledale Cladding (Pty) Ltd v Parsons NO 2001 (2) SA 663 (D) at 672F-673C (Steeledale Cladding)] The parties ought to know what the real dispute is so that they are not taken by surprise, or treated unfairly in that they are made to believe that the dispute is one thing while the arbitrator or commissioner goes on to find in his or her award that it is something else that was not anticipated, and in respect of which the parties were not given an opportunity to deal with. That would be grossly unfair and result in the setting aside of the award.[Compare: inter alia, Portnet (A division of Transnet Ltd) v Finnemore and Others [1999] 2 BLLR 151 (LC) paras 14-16; Reunert Industries (Pty) Ltd t/a Reutech Defence Industries v Naicker and Others [1997] 12 BLLR 1632 (LC) 1637I-1638B; AA Ball (Pty) Ltd v Kolisi and Another [1998] 6 BLLR 560 (LC) 562 C-G; Steeledale Cladding (above) and Tao Ying Metal Industries (Pty) Ltd v Pooe NO and Others [2007] 7 BLLR 583 (SCA) para 6.] sanction JR1288/12 Exxaro Coal Mpumalanga (Pty) Ltd Matla Coal v NUM obo Stigling and Others (JR1288/12) [2018] ZALCJHB 260 (15 August 2018) African Bank v Magashima and Others [2014] ZALCJHB 298 at para 24. arbitrator is required to determine whether the sanction imposed by the employer is fair and not to impose a sanction afresh. the factors outlined in Sidumo[4]. Other than these factors, where an employee claims inconsistency, further factors inclusive of those outlined in Sidumo to be considered include the following: a) The circumstances surrounding the act of misconduct committed by individual employees; b) The personal circumstances of the employees, including their length of service, and the employees disciplinary records; c) The positions they occupied at the time of the commission of the misconduct, the nature of the duties they performed and hierarchy within the organisation; d) The severity of the misconduct or its impact on the employer and its operations; e) The consequences of the misconduct vis--vis the sustainability of the employment relationship between the employer and the employee, and also as between co-employees; f) Whether the employees have shown genuine contrition. Genuine contrition implies that an employee owned up to the misconduct as soon as it took place, and showed remorse from that moment. This should be distinguished from the charade of showing remorse at disciplinary proceedings, purely for the purposes of pleading in mitigation of sanction. complaint forms basis of arbitration J698/15 Impala Platinum Ltd v Jonase and Others (J698/15) [2018] ZALCJHB 276 (24 August 2018) South African Reserve Bank v Public Protector [2017] ZAGPPHC 443 (15 August 2017) paras 39-42. a functionary may not impose a remedy that goes beyond the original complaint before her. The same goes for this appeal: The commissioner was not empowered to impose the remedy that she did. The fairness of the policy was not part of the complaint before her. And Impala Platinum was not called upon to defend the fairness of the policy as applied to all pregnant employees. The appeal must succeed on that ground as well. conduct of the Commissioner J2680/16 Sasol Chemical Operations (Pty) Ltd v CCMA and Others (J2680/16) [2018] ZALCJHB 433; [2019] 1 BLLR 91 (LC); (2019) 40 ILJ 436 (LC) (29 August 2018) Satani v Department of Education, Western Cape and Others (2016) 37 ILJ 2298 (LAC) par [17] (my underlining). It is accepted that commissioners are not expected to merely sit back and allow the parties to present their cases and not guide them to the real issues that are to be determined. There will be instances where intervention on the part of the commissioner would be necessary, whether an adversarial or inquisitorial has been adopted. However, commissioners must guard against an intervention that is likely to suggest bias or a perception of bias in favour of a particular party to the dispute. He/she must refrain from assisting a party to the detriment of the other, cross-examining witnesses by inter alia, challenging the consistency of a witness, expressing doubt about the credibility and reliability of a witness; putting leading questions to witnesses; answering questions for witnesses; showing disrespect to the parties representatives; not allowing representatives to present their cases without undue interference; doubting the capacity of a party’s chosen representative to represent a party and appearing to be an expert who knows everything and evincing a mind not open to persuasion. The list is not exhaustive. Raswiswi v CCMA and Others (2011) 32 ILJ 2186 (LC) par [18], cited with approval in Satani. This line of questioning directed by the commissioner continues in the same vein, with the applicant's union representative scarcely getting a word in. Apart from the fact that the applicant's representative had only asked one question before the arbitrator launched into his own line of cross- examination, it is clear that the character of his questions to the applicant was very different to the character of the questions he asked the company witnesses. The entire thrust of his questioning was not aimed at elucidating or clarifying the applicant's defence, but at challenging it. Moreover, the arbitrator's questions to the applicant did not follow naturally from an incomplete line of cross-examination initiated by the employer: the arbitrator took the initiative by directly attacking the applicant's defence, while he was still giving evidence in chief. Innovation Maven (Pty) Ltd (2016) 37 ILJ 465 (LC) par [17]. In the present instance, in my view, and after a careful perusal of the record, the commissioners conduct was such that she overstepped the mark. It is difficult to convey the magnitude of the extent to which the commissioner actively engaged in the proceedings, but read as a whole, the transcribed record reflects that the commissioner failed to respect the roles of the parties respective representatives and assumed to herself the role of leading evidence and conducting cross-examination. [36] The same considerations apply in this case. The Commissioner prejudged the issue and led the employee to bolster that premise, putting words in his mouth and creating a perception of bias in the sense of an adjudicator that had already formed a view on the merits. That is a further reason why the award must be set aside on appeal. CCMA continued jurisdiction: Section 186(1)(a) JR 1043/15 Ideal Security Services CC v CCMA and Others (JR 1043/15) [2018] ZALCJHB 375 (10 October 2018) [12] Clearly, that requires an action on the part of the employer to terminate the contract. It does not require any interpretation, as it was in this case. The South African Post Office Ltd v Mampuele [2010] 10 BLLR 1052 (LAC) Therein, the court made it very clear that there must be an overt statement by the employer terminating an employment contract. territorial jurisdiction JR1110/15 Antonio v Commission for Conciliation, Mediation and Arbitration and Others (JR1110/15) [2018] ZALCJHB 351 (30 October 2018) Astral Operations Ltd v Parry (2008) 29 ILJ 2668 (LAC). s 115 of the Labour Relations Act[3] (LRA) provides that the CCMA has jurisdiction in the whole Republic and, obviously, has no jurisdiction outside the Republic: It seems to me that in a case involving the CCMA the court could also ask whether the employer's undertaking in which the employees work is carried on, is inside or outside the Republic. If it was carried on inside, the CCMA would then have jurisdiction and, where it was carried on outside, the CCMA would not have jurisdiction. Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC). [34] What is clear from both Astral and Genrec Mei is that the undertaking where the employee was employed (which was situated beyond the territorial jurisdiction of the respective fora in each of those cases), has to be separate and divorced from the employer's undertaking which is located within the jurisdictional territory of the relevant forum.[35] In Astral, the employer's Malawian subsidiary, where the employee worked, was separate and divorced from the employer's South African undertaking. The Malawian undertaking was an incorporated concern with a separate personality. It was an independent company. In Genrec Mei, the court also emphasised the separateness and independence of the employer's undertaking in Durban, from its undertaking on the oil rig, where the employee was employed.[36] The nub of the issue in this case, is not about where appellant was employed, because it is common cause that he was employed in the first respondent's London office, but whether the London office was an undertaking of the first respondent which was separate and divorced from its undertaking in the Republic of South Africa. In my view it certainly was not. [11] In this case, the applicant was employed in the Angolan branch office of the third respondents European holding company. A document contained in the papers which has been translated by a sworn translator reflects that YOKOGAWA EUROPE BRANCHES B.V. SUCURSAL DE ANGOLA was registered as a company and taxpayer by the Angolan Department of Justice under registration number 1260/2006. The said legal entity is separate and divorced from the third respondent. Reporting lines to Van den Berg fall to be understood as between employees of the Angolan branch office of the global company. I am also of the view that given the fact that there was an express term in the applicants employment contract, that Angolan law would apply to the employment relationship between him and the holding company, this must be taken into consideration and a court should not simply deal with the locality of the undertaking test without reference to the intention of the parties in the employment contract. stated case JR 625/17 Department of Correctional Services v The GPSSBC and Others (JR 625/17) [2018] ZALCJHB 415 (29 November 2018) [10] For all the above reasons, I come to the conclusion that the award is a nullity and ought to be reviewed. Arends and others v SALGBC and others [2015] 1 BLLR 23 (LAC) [11] The decision of the representatives of the parties to limit themselves to providing the arbitrator with a verbal account of the background relevant to the conclusion of the collective agreement, as the basis for the parties arguing the matter without leading oral testimony, was ill-advised[15] The appellants are to some extent the authors of their own misfortune. They placed the matter before the arbitrator as if there was a simple, single issue capable of resolution with the barest minimum of factual matter. Their approach was neither prudent nor correct. When parties desire to proceed without oral evidence in the form of special case, it is imperative that there should be a written statement of the facts agreed by the parties, akin to a pleading. Otherwise, the presiding officer may not be in a position to answer the legal question put to him. The stated case must set out agreed facts, not assumptions [16] Such statement shall set forth the facts agreed upon, the questions of law in dispute between the parties, their contentions thereon and shall be divided into consecutively numbered paragraphs. The parties must annex to the statement copies of documents necessary to enable the Court to decide upon such questions.[17] Practitioners must follow these rudimentary elements of good practice when intending to proceed on the basis of a stated case. referral form J 3424 / 18 J & L Lining (Pty) Ltd v National Union of Metalworkers of South Africa and Others (J 3424 / 18) [2018] ZALCJHB 409; (2019) 40 ILJ 1289 (LC) (10 December 2018) September and Others v CMI Business Enterprise CC (2018) 39 ILJ 987 (CC) at para 44 The Labour Appeal Court adopted an overly formalistic approach as it held that to answer the question whether the real dispute had been conciliated necessitates a very narrow factual enquiry which entails only looking at two aspects, namely the characterisation on the referral form and the contents of the certificate of outcome. The Labour Appeal Court failed to take into account the purpose and context of the Labour Relations Act and the dispute-resolution mechanisms for which it provides. By relying only on the referral form and the certificate of outcome the Labour Appeal Court essentially held that no evidence from the conciliation proceedings may be led as evidence in subsequent proceedings. The Court concluded as follows:[13]It would therefore be wrong to adopt the Labour Appeal Courts approach, which essentially precludes the courts from referring to evidence outside of the certificate of outcome and referral form, to determine the nature of the dispute conciliated. The general rule is that the referral form and certificate of outcome constitute prima facie evidence of the nature of the dispute conciliated. However, if it is alleged that the nature of the dispute is in fact different from that reflected on such documents, the parties may adduce evidence as to the nature of the dispute. Susension evidence at Unfair dismissal arbitration JR2333/2015 Belo & Kies Construction (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2333/2015) [2019] ZALCJHB 2 (9 January 2019) [9] The Applicants first witness, Ms Freislich, was the chairperson of the disciplinary enquiry and in her testimony she dealt with the issue of the employees suspension. In my view the issue regarding the employees suspension and the testimony adduced on that, was irrelevant to the issues that the arbitrator had to decide. A challenge to the fairness of the employees suspension should have been referred and dealt with as an unfair labour practice dispute. Arbitrator duties JR2422/16 MEGAPASCAL CONTRACTING TECHNOLOGIES vs CCMA JR2422/16 Tao Ying Metal Industries Pooe N.O. and Others The task of an Arbitrator is a demanding one. It is made more demanding by the absence of formality that characterizes the resolution of labour disputes. It is important that an arbitrator, notwithstanding the absence of formality, ensures at the outset, that the ambit of the dispute has been properly circumscribed, even if the dispute has many facets, for that defines the authority that the arbitrator has to make an award. The authority of an arbitrator is confined to resolving the dispute that has been submitted for resolution and an award that falls outside that authority will be invalid. Sasol Mining (Pty) Ltd v Commissioner Nggeleni and Others One of the commissioners prime functions was to ascertain the truth as to the conflicting versions before him. As I have noted, this much the commissioner appears to have appreciated. What he manifestly lacked was any sense of how to accomplish this task, or what tools were at his disposal to do so. The commissioner was obliged to, at least, make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the possibility or improbability of each parties version. 191(5) referral period (after certificate was issued) JS740/18 National Union of Metal Workers of SA and Another v BMW (South Africa) (Pty) Ltd (JS740/18) [2019] ZALCJHB 146; (2019) 40 ILJ 1818 (LC) (19 February 2019) Reasonable time [46] It is thus evident from the general scheme of section 191(5) of LRA that either of the two events: the issue of a certificate of non-resolution by a Commissioner of the CCMA or a bargaining council or the expiry of 30 days from the date on which the CCMA or bargaining council received the referral and the dispute remains unresolved, entitles an employee to request arbitration or adjudication. Section 191 of the LRA is, however, silent, on the time period within which the referral to arbitration is to be made from the date of the happening of either of the two events referred to in subsection (5) of the LRA. Since section 191 of the LRA does not prescribe the specific time period within which an unfair dismissal or unfair labour practice is to be referred to arbitration in terms of subsection (5)(a) of the LRA, the dismissed employee or the employee alleging an unfair labour practice must refer such dispute to arbitration within a reasonable period of time.[49] The appellant referred his unfair dismissal dispute to the bargaining council for conciliation on or about 10 February 2003. In terms of section 191(5) of the LRA, he acquired the right to refer his unfair dismissal dispute to arbitration on 12 March 2003 upon the expiry of the 30-day period contemplated in the subsection. The appellant, however, elected not to refer the dispute to arbitration at that stage, but rather to await the outcome of the conciliation process (which ensued on 3 April 2003) and the issue of a certificate of outcome following thereupon. In the event, the certificate of non-resolution was only issued on 15 April 2004, a full year after the conciliation took place, following which the appellant referred the matter to arbitration on 24 June 2004, being more than 13 months after he acquired the right to refer the dispute to arbitration (on 12 March 2003), upon expiry of the 30-day period contemplated in the subsection. Thus, in so far as he chose to await the outcome of the conciliation process and the issue of a certificate of outcome by the bargaining council, before referring the dispute to arbitration, the appellant was obliged to seek condonation from the arbitrator for his failure to refer the dispute to arbitration within 90 days of the date of expiry of 30 days from the date that the bargaining council had received the referral. [12] It is not apparent from the judgment when the 30-day period after the date of the referral of the dispute to the CCMA expired (and in particular, whether that period expired before or after the issuing of the certificate). But it is of some significance that the court was concerned only with the date of the certificate, and that it specifically regarded the issuing of the certificate as the trigger for the 90-day period. Had the court considered that the date of expiry of the 30-day period post referral was relevant, it would have said so.[13] In summary: in the case of a dispute that is required to be referred for adjudication (as opposed to arbitration), s 191 (11) requires the dispute to be referred within 90 days of the issuing of a certificate of outcome, regardless of the date of which the 30-day period immediately following the date of referral of the dispute expired. The applicants referral to this court was made within 90 days of the date of the certificate of outcome, and was thus timeously made. Condonation for a later referral is not required, and it is not necessary for me to consider the applicants submissions in this regard. The special plea accordingly stands to be dismissed. Commissioner stop party to ask questions: reviewable JR875/1 Serakala v National Bargaining Council for the Freight, Logitsics Industry ("NBCRFLI") and Others (JR875/15) [2019] ZALCJHB 96 (14 May 2019) [50] The Commissioner did not end there. On page 16 of the transcribed record, the Commissioner simply stopped the applicant from continuing with his cross examination of Ms Frazer. On page 17 of the record, the applicant asks Ms Frazer, what I believe was a pertinent question, namely when did the third respondent become aware that he had spectacles and in response thereto the Commissioner says as follows: Alright sorry no more questions[51] Had the Commissioner allowed the applicant, who was unrepresented and a lay person, an opportunity to ask all questions he intended, the applicant may very well have raised the fact that Dr Rahmans report was presented at the appeal hearing and asked Ms Frazer why the report was not considered by the chairperson. However, his cross examination of Ms Frazer was stopped abruptly by the Commissioner. It is my finding therefore that the Commissioner did not give the applicant a full opportunity to have his say in respect of the dispute and prevented a fair trial of the issues, rendering his award reviewable.[52] When consideration is had to all the above circumstances, it stands to reason that the decision reached by the Commissioner was one that a reasonable decision-maker could not reach and thus falls to be set aside on review. Rescission ruling: scant JR899/14 Mothole Bus Service CC v Commission for Conciliation, Mediation and Arbitration and Others (JR899/14) [2019] ZALCJHB 171 (12 July 2019) Foschini Group (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2002) 23 ILJ 1048 (LC) at para 17 If the explanation given for a party's non-appearance at the arbitration proceedings does not demonstrate that the absent party was wholly blameless, the force of that explanation must still be balanced against the force of the case G which that party seeks to present in support of its case. The weight of a solid bona fide case will usually make up for a thin explanation for default. [22] The Commissioner then states that the condonation ruling does not finally dispose of the dispute between the parties and that there exists no reason for the rescission of the ruling in question.[23] It is clear that the Commissioner had scant, if any regard to the requirements for analysing and deciding a rescission application. He should have properly considered the merits, and explanation for default averred by the Applicant.[14][24] The Commissioners failure to properly adjudicate the rescission application is clearly unreasonable given the test set out in Sidumo stated case JR2007/17 Department of Agriculture & Rural Development: Limpopo Provincial Government v Phooko N.O and Others (JR2007/17) [2019] ZALCJHB 190 (2 August 2019) [6] The process used in the arbitration proceedings simply does not allow for a due and proper arbitration of the dispute. The Commissioner based her findings on the written submissions of the parties[8] In the absence of such a stated case, oral evidence should be led on the material facts in dispute at arbitrations in terms of the LRA. Commissioners and arbitrators should not condone an agreement between the parties that no oral evidence be led unless such a stated case has been agreed, and on which they may draw legal conclusions Arends and others v SALGBC and others [2015] 1 BLLR 23 (LAC). [11] The decision of the representatives of the parties to limit themselves to providing the arbitrator with a verbal account of the background relevant to the conclusion of the collective agreement, as the basis for the parties arguing the matter without leading oral testimony, was ill-advised[15] The appellants are to some extent the authors of their own misfortune. They placed the matter before the arbitrator as if there was a simple, single issue capable of resolution with the barest minimum of factual matter. Their approach was neither prudent nor correct. When parties desire to proceed without oral evidence in the form of special case, it is imperative that there should be a written statement of the facts agreed by the parties, akin to a pleading. Otherwise, the presiding officer may not be in a position to answer the legal question put to him. The stated case must set out agreed facts, not assumptions[5] The approach taken by the first respondent is neither prudent nor correct. The LAC in Arends supra advised thus:[16] Such statement shall set forth the facts agreed upon, the questions of law in dispute between the parties, their contentions thereon and shall be divided into consecutively numbered paragraphs. The parties must annex to the statement copies of documents necessary to enable the Court to decide upon such questions.[17] Practitioners must follow these rudimentary elements of good practice when intending to proceed on the basis of a stated case. Commissioner's duties CUSA v Tao Ying Metal Industries & others [2009] 1 BLLR 1 (CC), the Constitutional Court (per Ngcobo J) [65] Consistent with the objectives of the LRA, commissioners are required to deal with the substantial merits of the dispute with the minimum of legal formalities. This requires commissioners to deal with the substance of a dispute between the parties. They must cut through all the claims and counter claims and reach for the real dispute between the parties. In order to perform this task effectively, commissioners must be allowed a significant measure of latitude in the performance of their functions. Thus the LRA permits commissioners to conduct the arbitration in a manner that the commissioner considers appropriate. But in doing so, commissioners must be guided by at least three considerations. The first is that they must resolve the real dispute between the parties. Second, they must do so expeditiously. And, in resolving the labour dispute, they must act fairly to all the parties as the LRA enjoins them to do. Opening address JR1190/16 Ramabulana v CCMA and Others (JR1190/16) [2019] ZALCJHB 232 (3 September 2019) Consol Ltd v Kanjee & others (2008) 29 ILJ 1474 (LC) at paragraph 17 [15]...An opening address serves to characterise the nature of the dispute, identify the issues in dispute, and the basis of the defence to the claim (see Consol Ltd v Kanjee & others (2008) 29 ILJ 1474 (LC) at paragraph 17). The only procedural issue raised by the applicants representative in his opening address and in response to an invitation by the arbitrator to articulate the basis on which procedural fairness was challenged, was correctly categorised by the arbitrator as one of substance. There is accordingly no merit in this ground for review. Postponement application JR1643/16 Merafong City Local Municipality v Poo and Others (JR1643/16) [2019] ZALCJHB 343 (29 November 2019) Carephone v Marcus NO and Others JA 52/98 ZALAC 11 (1 September 1998). [54] In a court of law the granting of an application for postponement is not a matter of right. It is an indulgence granted by the court to a litigant in the exercise of a judicial discretion. What is normally required is a reasonable explanation for the need to postpone and the capability of an appropriate costs order to nullify the opposing party’s prejudice or potential prejudice. Interference on appeal in a matter involving the lower courts exercise of a discretion will follow only if it is concluded that the discretion was not judicially exercised (Madnitsky v Rosenberg 1949 (2) SA 392 (A) at 398-399).[55] There are at least three reasons why the approach to applications for postponements in arbitration proceedings under the auspices of the Commission under the LRA is not necessarily on a par with that in courts of law. The first is that arbitration proceedings must be structured to deal with a dispute fairly and quickly (s 138(1)). Secondly, it must be done with the minimum of legal formalities (s 138(1)). And thirdly, the possibility of making costs orders to counter prejudice in good faith postponement applications is severely restricted (s 138(10)). Psychological Society of South Africa v Qwelane and Others 2017 (8) BCLR 1039 (CC). [30] Postponements are not merely for the taking. They have to be properly motivated and substantiated. And when considering an application for a postponement a court has to exercise its discretion whether to grant the application. It is a discretion in the true or narrow sense meaning that, so long as it is judicially exercised, another court cannot substitute its decision simply because it disagrees. The decision to postpone is primarily one for the first instance court to make.[31] In exercising its discretion, a court will consider whether the application has been timeously made, whether the explanation for the postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed. All these factors will be weighed to determine whether it is in the interests of justice to grant the postponement. And, importantly, this Court has added to the mix. It has said that what is in the interests of justice is determined not only by what is in the interests of the immediate parties, but also by what is in the broader public interest. [28] Clearly, the arbitrators decision not to postpone the proceedings is rationally connected with the material before him and therefore justifiable. He did not exercise his discretion capriciously or upon any wrong principles, but he did so judicially. Thus, he did not commit any gross irregularity as alleged by the applicant. There is, therefore no basis for this Court to review his decision not to grant postponement. referral form signed by attorney and not the party: allowed CA2/2019 Adams v National Bargaining Council for the Freight and Logistics Industry and Others (CA2/2019) [2020] ZALAC 10; [2020] 9 BLLR 867 (LAC); (2020) 41 ILJ 2051 (LAC) (18 May 2020) [15] In the result, I am of the view that ABC Telesales is sound authority for the appellants proposition that the purpose of the signature rule was achieved by the ratification of the aggrieved persons agent signing the referral. The fact that it was an attorney who signed it is a non-material fact. Conclusions[16] Although it is highly desirable for good order that rules be complied with on their own terms, the function of the rule is the paramount consideration and, where it can be safely found that the purpose of the rule is achieved, it is highly undesirable to approach the matter in a literalist way. Mechanical thinking is anathema to our law: cessante ratione legis cessat et ipsa lex. The objectives of the Labour Relations Act 61 of 1995 inform the context of interpretation and its penumbra of pragmatism. Our law is not an Ass.[17] Accordingly, the ruling that there was no jurisdiction ought not to have been made. res judicata: two disputes referred to CCMA JA30/2019 Feni v Commission for Conciliation, Mediation and Arbitration and Others (JA30/2019) [2020] ZALAC 24; (2020) 41 ILJ 1899 (LAC); [2020] 10 BLLR 1001 (LAC) (28 May 2020) [12] The doctrine of res judicata encompasses a matter that has already been decided; that is the same dispute had been finally adjudicated upon in proceedings between the same parties and therefore cannot be raised again. According to Voet 42.1.1 this exceptio was available in the common law, if it was shown that the judgment in the earlier case was given in a dispute between the same parties for the same relief on the same ground or on the same cause. See National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd [2000] ZASCA 159; 2001 (2) SA 232 (SCA) at 239 as well as the cases cited therein. [13] The law was further explicated by Scott JA in Smith v Porritt and others 2008 (6) SA 303 SCA at para 10 the ambit of the exceptio rei judicata has over the years been extended by the relaxation in appropriate cases of the common-law requirements that the relief claimed and the cause of action be the same (eadem res and eadem petendi causa) in both the case in question and the earlier judgment. Where the circumstances justify the relaxation of these requirements those that remain are that the parties must be the same (idem actor) and that the same issue (eadem quaestio) must arise. Broadly stated, the latter involves an inquiry whether an issue of fact or law was an essential element of the judgment on which reliance is placed. Where the plea of res judicata is raised in the absence of a commonality of cause of action and relief claimed it has become commonplace to adopt the terminology of English law and to speak of issue estoppel. But, as was stressed by Botha JA in Kommissaris van Binnelandse Inkomste v Absa Bank BPK 1995 (1) SA 653 (A) at 669D, 670J-671B, this is not to be construed as implying an abandonment of the principles of the common law in favour of those of English law; the defence remains one of res judicata. The recognition of the defence in such cases will however require careful scrutiny. Each case will depend on its own facts and any extension of the defence will be on a case by case basis. Applying this test to the facts of this dispute, it is difficult to see how a decision on jurisdiction constitutes res judicata. It is not a determination of the legal justification of the core dispute of dismissal between the parties. [14] Aligned, however, to the concept of res judicata is that of lis pendens. As Nugent AJA said in Nestl (South Africa) Pty Ltd v Mars Inc 2001 (4) SA 542 (SCA) at para 16:The defence of lis alibi pendens shares features in common with the defence of res judicata because they have a common underlying principle, which is that there should be finality in litigation. Once a suit has been commenced before a tribunal that is competent to adjudicate upon it, the suit must generally be brought to its conclusion before the tribunal and should not be replicated (lis alibi pendens). By the same token the suit will not be permitted to revive once it has been brought to its proper conclusion (res judicata). The same suit between the same parties, should be brought once and finally.[15] Wallis J explicated upon the doctrine in Caesarstone Sdocot-Yam v World of Marble and Granite 2000 CC and others 2013 (6) SA 499 (SCA) at para 2 where he said that the policy underlying the doctrine of lis pendens is that there should be a limit to the extent to which the same issue is ligated between the same parties and that it is desirable that there be finality in litigation. The courts are also concerned to avoid a situation where different courts pronounce on the same issue with the risk they may reach different conclusions.[16] Herbstein and Van Winsen The Civil Practice of the High Courts in South Africa (5ed) at 606 note that a plea of lis pendens involves an intervention by the court to stay one or other of the proceedings because it is prima facie vexatious to bring two actions in respect of the same subject matter. The learned authors point out that the court has a discretion in the matter which is sourced in the policy that to allow two separate proceedings to continue in respect of the same dispute may well border on the authorisation of a vexatious practice. Association of Mine Workers and Construction Union and others v Ngululu Bulk Carriers (Pty) Ltd (in liquidation) and others [2020] ZACC 8. Constitutional Court said in the AMCU case, it is not reasons for a dismissal which must be referred to conciliation but the unfairness of the dismissal (para 21), because the Constitutional Court considered that there were two separate dismissals, the approach adopted by the Court is distinguishable from the present dispute If that argument succeeded the CCMA would be engaged either with a conciliation process or possibly an arbitration thereafter at the same time as the fairness of the same dismissal was to be heard before the Labour Court or possibly on appeal by the Labour Appeal Court.[26] This set of consequences would be entirely incongruent with the policy of the LRA, being expedition of the resolution of a single act of dismissal. This conclusion, namely that the doctrine of lis pendens would be appropriately invoked in such a case, is strengthened by the lack of prejudice to a party in the position of appellant. In terms of s158 (2) of the LRA, if at any stage after a dispute had been referred to the Labour Court, it becomes apparent that the dispute ought to have been referred to arbitration, the court may- (a) stay the proceedings and refer the dispute to arbitration; or (b) with the consent of the parties if it is expedient to do so continue with the proceedings with the court sitting as an arbitrator in which case the court may only make any order that a commissioner or arbitrator would have been entitled to make. The court could then decide to sit as an arbitrator in respect of this component of the case. CCMA continued Date of referral of Unfair Labour Practice dispute and section 10 of the EEA alleging unfair discrimination on an arbitrary ground in contravention of section 6(1) of the EEA. DA 7/2019 Mngadi v Jenkin NO and Others (DA 7/2019) [2020] ZALAC 42 (24 November 2020) SABC Ltd v CCMA and others [2010] 3 BLLR 251 (LAC) (where it was found that the date that an unfair labour practice arises does not coincide with its commencement date when the nature of the unfair labour practice is such that it is ongoing in such case, the dispute can be referred at any time), it is submitted that there is no need for a condonation application. In the event that this is incorrect, condonation is applied for in the alternative in respect of the failure to pay the correct standing-in allowance [8]...The CCMA has no capacity or power to conciliate without the necessary jurisdiction. There can be no conciliation, once a jurisdictional point arises until jurisdiction has been determined. Unless the necessary jurisdictional facts are found to be present, the process of conciliation cannot be engaged and thus jurisdiction must necessarily be established at the outset of the process.[3] The determination of the jurisdictional issue of necessity must precede the conciliation process.[Shell SA Energy (Pty) Ltd v National Bargaining Council for Chemical Industry & others (2013) 34 ILJ 1490 (LAC) para 13] SA Broadcast Corporation Ltd v Commission for Conciliation, Mediation and Arbitration & others (2010) 31 ILJ 592 (LAC). This court held that since the applicants were continually being paid at a lower rate, the discrimination was not a single act but a continuing or repetitive act that recurred on each pay date. Applying that reasoning to the present case, the appellants referral of his dispute in relation to the alleged ongoing and repetitive discrimination was not out of time, at least in relation to the payment of his salaries (discrete repetitive acts) in the six months prior to his referral. Condonation was not required helping hand principle JR288/18 Lyttleton Dolomite (Pty) Ltd v NUM obo Lekgau and Others (JR288/18) [2020] ZALCJHB 132 (11 August 2020) [35] It is apparent from the record of the arbitration proceedings that the commissioner was acutely aware that she was faced with an inexperienced representative together with hearsay evidence being adduced; she therefore had a duty in terms of the CCMA Guidelines, to lend a helping hand but fails to do so and appeared to adopt a passive attitude in this regard. [38] It is my opinion that in this matter the timing of the Commissioners ruling on the admissibility of the hearsay evidence is of vital importance. If one has regard to the LAC decision in Exxaro and looking at the principle of fairness, the fact that the Commissioner failed to comment on or proceed to explain the weight attributed to hearsay evidence in terms of the LEAA at the time when she became aware of the fact that the evidence was hearsay evidence is crucial and has a direct impact on her duty to ensure fairness in the proceedings. [39] Furthermore and as reflected in the CCMA Guidelines the purpose of the helping hand principle is to prevent a procedural defect by ensuring that there is a full ventilation of the dispute and a fair trial of the issues. The Commissioner had a duty firstly to explain to the parties the significance of the provisions of section 3 of the LEAA, or of the alternative, fair standard and procedure that was going to be adopted by the Commissioner to consider the admission of the evidence and secondly, to timeously rule on the admission of the hearsay evidence. As stated by the Court in Exxaro to only make a ruling on admissibility of such evidence only at the award stage speaks to the crucial aspect of fairness. The fact that the decision of the hearsay evidence occurred only at decision-making time, is significant as this prevented there being a full ventilation of the dispute and a fair trial of the issues.[34] Commissioner's purpose at arbitration JR2847/17 AWA Water Management (Pty) Ltd v Radoccia and Others (JR2847/17) [2020] ZALCJHB 204 (11 August 2020) [1] The learned Savage AJA,[1] in County Fair Foods (Epping), a division of Astral Operations Ltd v Food and Allied Workers' Union and Others[[2018] 8 BLLR 756 (LAC).] reminded us about the role of an arbitrator in resolving disputes, as that Court held thus, as was stated in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others in determining whether a dismissal is fair or not does the decision-maker 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. Deciding this does not require the decision-maker to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.[3] [18] In CUSA v Tao Ying Metal Industries &Others,[2009 (1) BCLR 1 (CC)] the Constitutional Court held that arbitrators are given a measure of latitude in deciding disputes before them, in a manner that they deem fit. However, they need to resolve the real dispute and deal with the substance thereof between the parties.[21] [19] The same Court, in Baloyi v Member of the Executive Committee for Health and Social Development, Limpopo and Others 2016 (4) BCLR 443 (CC), emphases the need for arbitrators to clarify as to which charges an employee is guilty or not guilty of if he was dismissed for more than one offence. It concluded that,[19] The applicant complains that the arbitrator found him guilty of misconduct of which he had wrongly been charged. He was charged with initiating the process for the repair of the incinerators and his defence was that he did so to comply with a lawful instruction from Dr Wasilota. It is indeed not clear from the arbitrators award which charges he found to have been proved and which not. One would have expected the arbitrator to make this clear, as this would have facilitated an understanding of his reasons for the award. [22] [20] The LAC, reaffirming what it said in County Fair Foods (Pty) Ltd v CCMA [1999] 11 BLLR 1117 (LAC), in Bidserv Industrial Products ( Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA73/15)[23] held thus ,The fact that the Commissioner glossed over and did not determine the primary question whether Ramapuputla was dishonest, as correctly found by the Court a quo, is problematic. That determination was central to the question whether the reason given for Ramapuputlas dismissal was fair. In County Fair Foods (Pty) Ltd v CCMA, this Court sounded a warning that failure to deal with an important facet may, depending on the circumstances of the case, provide evidence that the Commissioner did not apply his/her mind to that facet.[24] Recusal urgent application to Labour Court J735/2020 Thandeka Safaris (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (J735/2020) [2020] ZALCJHB 152 (18 August 2020) [5] In any event, this court is not empowered to intervene in incomplete arbitration hearings unless the court is satisfied that it is just and equitable to review a decision or ruling before the issue in dispute has been finally determined. The insertion of s 158 (1A) into the LRA by way of the 2014 amendments sought to avoid the piecemeal review of arbitration proceedings in favour of a single review application to be brought at the conclusion of the hearing and after the delivery of an award. In the present instance, the second respondent issued a comprehensive 27-page ruling in which he dismissed the application for recusal. On the face of it, the ruling is considered not one that suggests that intervention by this court at this point is either just or equitable. The scope of intervention in incomplete arbitration proceedings must necessarily be informed by s 138 (1) of the LRA which requires commissioners to conduct arbitration in a manner they deem appropriate, in order to determine the dispute fairly and quickly, dealing with the substantial merits of the dispute with the minimum of legal formalities. Trade union not listing members in dispute JR2881/17 TASWU obo Legodi and Others v van Kerken NO and Others (JR2881/17) [2020] ZALCJHB 162 (20 August 2020) [3] The matter was set down for conciliation on 9 November 2017. The next day, the panellist issued the ruling referred to above. The panellist made reference to NUM v Hernic Exporation (Pty) Ltd (2003) 24 ILJ 787 (LAC) where the Labour appeal Court held that the fact that a union does not furnish the names of dismissed employees does not affect the jurisdiction either of the CCMA or this court. The court went on to note that it was best practice for the union to give the names of the employees concerned, so that the employer knows which employees are engaged in the proceedings. The court confirmed that in terms of section 200 (1) a trade union was entitled to refer dismissal dispute relating to the dismissal of its members to the CCMA for conciliation and to this court for adjudication, without citing its dismissed members as co-applicants. [7] Insofar as the panellists decision that the bargaining council ought properly to refuse to entertain a matter in circumstances where the identities of the individuals who had an interest in the matter remain undisclosed, I fail to appreciate on what basis it can be said that the decision is incorrect. The panellist was faced with a poorly drafted referral that contained no information concerning the nature of the dispute, and, as she observed, the identity of the individual employees affected by it. The process that served before the panellist was one of conciliation. I fail to appreciate how it can be expected of any panellist to conciliate the dispute where no indication whatsoever is given of the numbers of employees involved, their identities, the basis on which substantive and procedural fairness is alleged, and the like. Indeed, the union appears to have been content to have the facts emerge during the arbitration process. This is fundamentally subversive of the process of conciliation. Jurisdiction: Unfair Labour Practice JR273/2017 Assmang (Pty) Limited t/a Mine v Commission for Conciliation, Mediation and Arbitration and Others (JR273/2017) [2020] ZALCJHB 247 (30 November 2020) 13.1 The first is that Lottering is dominus litis. He seeks to enforce his rights to fair labour practices by relying on the provisions of section 186(2) of the LRA. His claim as was before the Commissioner, and as further persisted with in these proceedings, relates to alleged unfairness, and he has disavowed any reliance on his contract of employment, and thus the provisions of section 77(3) of the BCEA.13.2 As was stated in Makambi v MEC, Department of Education, Eastern Cape Province[Makambi v Member of Executive of Council, The Department of Education, Eastern Cape Province [2008] ZASCA 61; [2008] 4 All SA 57 (SCA); 2008 (5) SA 449 (SCA); [2008] 8 BLLR 711 (SCA); (2008) 29 ILJ 2129 (SCA) at para 30], whether a Court (in this case, the CCMA), has jurisdiction to consider a particular claim depends upon the nature of the rights that the claimant seeks to enforce, and whether the claim is good or bad in law is immaterial to the jurisdictional enquiry.13.3 The second difficulty is that it is not for the Applicant to elect for an employee as to what his/her cause of action should be, and where that dispute ought to be determined. If an employee such as Lottering alleges an unfair labour practice within the meaning of section 186(2) of the LRA, with the substance of his claim being that he was deprived of the SDPW allowance for unfair reasons, it is of no consequence that the allowance emanated from a contract of employment, collective agreement or mere practice. This is so in that in Apollo Tyres South Africa (Pty) Ltd v CCMA & others[(2013) 34 ILJ 1120 (LAC)], it was held that a benefit for the purposes of s 186(2)(a) is not limited to an entitlement that arises ex contractu or ex lege. Commissioner to deal with real issue of dispute JR79/19 Colgate-Palmolive (Pty) Ltd v Rala-Rala and Others (JR79/19) [2021] ZALCJHB 35 (20 January 2021) CUSA v Tao Ying Metal Industries and Others [2008] ZACC 15; [2009] (2) SA 204 (CC) at paras 62 65. the approach to be followed by the commissioners Consistent with the objectives of the LRA, commissioners are required to deal with the substantial merits of the dispute with the minimum of legal formalities. This requires commissioners to deal with the substance of a dispute between the parties. They must cut through all the claims and counter-claims and reach for the real dispute between the parties. In order to perform this task effectively, commissioners must be allowed a significant measure of latitude in the performance of their functions. Thus the LRA permits commissioners to conduct the arbitration in a manner that the commissioner considers appropriate. But in doing so, commissioners must be guided by at least three considerations. The first is that they must resolve the real dispute between the parties. Second, they must do so expeditiously. And, in resolving the labour dispute, they must act fairly to all the parties as the LRA enjoins them to do. A commissioner must, as the LRA requires, deal with the substantial merits of the dispute. This can only be done by ascertaining the real dispute between the parties. In deciding what the real dispute between the parties is, a commissioner is not necessarily bound by what the legal representatives say the dispute is. The labels that parties attach to a dispute cannot change its underlying nature. A commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union and the evidence presented during the arbitration. What must be borne in mind is that there is no provision for pleadings in the arbitration process which helps to define disputes in civil litigation. Indeed, the material that a commissioner will have prior to a hearing will consist of standard forms which record the nature of the dispute and the desired outcome. The informal nature of the arbitration process permits a commissioner to determine what the real dispute between the parties is on a consideration of all the facts. The dispute between the parties may only emerge once all the evidence is in. (Footnotes omitted and emphasis added) the matter may not proceed before the CCMA once it is discovered that the parties are parties to a bargaining council or fall within the registered scope of a bargaining council, until the options set out in s 147(2) and (3) have been exercised by the CCMA JR1768/19 Food lovers Holdings (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1768/19) [2021] ZALCJHB 40 (23 February 2021) [12] In all the circumstances, absent the confirmation of the Commissioners appointment by the CCMA in terms of section 147(3)(a)(ii) of the LRA, he obviously misconstrued his powers under the LRA and erroneously donned himself with the jurisdiction to determine the dispute. On this ground alone, the award stands to be reviewed and set aside. Nehawu obo Kgekwane v Department of Development Planning and Local Government (2015) 36 ILJ 1247 (LAC); [2015] 6 BLLR 575 (LAC) at para 18 Although the LRA does not set out guidelines that inform a referral in terms of either s 147(2) and (3) of the LRA, our courts have over time developed principles that may be of some guidance. The first is that forum shopping is looked upon with disdain. Thus in the context of referrals in terms of s 147(2) and (3) of the LRA, the incorrect referral must be bona fide and not an exercise in forum shopping for a sympathetic or preferred forum. The second principle is that where a dispute is referred to the CCMA, the matter may not proceed before the CCMA once it is discovered that the parties are parties to a bargaining council or fall within the registered scope of a bargaining council, until the options set out in s 147(2) and (3) have been exercised by the CCMA. The third principle is that once this is ascertained, it is then for the CCMA or its delegate (and not the commissioner hearing the matter when this was ascertained) to determine whether to refer the matter to the bargaining council or to appoint a commissioner to determine the dispute or if one has already been appointed, to confirm his or her appointment. (Emphasis added) [10] In Qibe v Joy Global Africa (Pty) Ltd, In re: Joy Global Africa (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others [2015] 4 BLLR 415 (LAC); (2015) 36 ILJ 1283 (LAC) at paras 8 9 confirming the dictum in Kgekwane,[8] the LAC reiterated that it is only in instances where the CCMA elects to appoint a Commissioner to arbitrate the dispute or confirm the appointment of the one already appointed in terms of subsection (2) and (3) of section 147 of the LRA that the Commissioner will be properly clothed with the jurisdiction to determine the dispute. Unfortunately, the converse is true in this matter. [11] In SA Rugby Players Association & others v SA Rugby (Pty) Ltd & Others (2008) 29 ILJ 2218 (LAC) at para 41 the LAC established the principle that the inquiry into the jurisdiction of the CCMA entails the determination whether objectively speaking, the facts which would give the CCMA jurisdiction to entertain the dispute existed. If such facts did not exist, the CCMA would have no jurisdiction irrespective of its finding to the contrary.[See: HC Heat Exchangers (Pty) Ltd v Araujo and Others [2007] ZALC 72; [2020] 3 BLLR 280 (LC) at paras 35 to 39; Ukweza Holdings (Pty) Ltd v Nyondo and Others [2020] 6 BLLR 544 (LAC); (2020) 41 ILJ 1354 (LAC) at para 12.] rule 29 disclosure JR 2642/2019 South African Sports Confederation and Olympic Committee (SASCOC) v Commission for Conciliation, Mediation and Arbitration and Others (JR 2642/2019) [2021] ZALCJHB 23 (1 March 2021) [13] Rule 29 of the CCMA rules is the starting point. That rule discloses only relevance as a criterion for the disclosure of documents. As reflected above, rule 29 (3) empowers a commissioner to make an order as to the disclosure of relevant documents...The investigation report is thus entirely irrelevant to the issue of the fairness of the employees dismissal, particularly given that it was not used in the disciplinary enquiry and will not be relied on by the applicant in the arbitration proceedings. failure to serve referral form on party J293/21 Winnie Mabaso Foundation v CCMA and Others (J293/21) [2021] ZALCJHB 46 (24 March 2021) [3] This application is nothing but an abuse of Court processes. It was ill-conceived, hopeless and baseless in law. The applicant contends that the ruling is incorrect simply because the applicant was not served with the referral forms. There is no merit in this contention. The jurisdiction of the CCMA over dismissals based on operational requirements obtains from section 191 (12) of the LRA. The issue of service has nothing to do with jurisdiction. Defective service is not tantamount to lack of jurisdiction. In terms of rule 6 (3) of the CCMA Rules, the Commission at its discretion may accept proof of service in a manner other than prescribed in the Rules as being sufficient. Section 191 (3) of the LRA provides that an employee must satisfy the Commission that a copy of the referral has been served on the employer. In terms of section 213 of the LRA serve in respect of the Commission means any other method of service specified in the Rules of the Commission. Akshardham (Pty) Ltd v JSR 108 Investments CC and others[1] [14] This is not a case where the proceedings have begun without notice or where there was mere knowledge of the issue of summons. The summons were served incorrectly and the subsequent proceedings are, therefore, not void as JSR would have itJSR has been afforded, and has utilised, the opportunity to be heard. There has thus been proper service and the non-compliance with the Uniform Rules of Court becomes irrelevant. [5] Similarly, in casu, the applicant having appeared on 30 November 2020, it had the opportunity to be heard and the fact that the referral forms would have been not served or served irregularly is of no moment. Rightfully, Commissioner Ngwane should not have entertained the point, since it was not in reality a jurisdictional point, but should have commenced with arbitration forthwith. postponement agreement JR99/2021 Solomons v Phokela NO and Others (JR99/2021) [2021] ZALCJHB 192 (2 August 2021) [27] The conclusion drawn by Maluleke is bereft of any legal basis. Rule 23 does not call for a signed agreement. It simply requires a written agreement. In law an unsigned agreement is valid unless there is a statutory requirement for a signature. The seven day requirement in subrule 23 (2) (b) finds application in instances where the parties do not appear and present an agreement. In this particular instance what prompted the postponement agreement was an unplanned incident of a witness testing positive for Covid-19, which incident only emerged on 12 August 2020. That was barely two days before the scheduled hearing. The seven days is not cast in stone. The subrule states that at the least seven days. In the circumstances of this case two day’s notice was sufficient. No party raised any prejudice. One wonders what prejudice, if any, the commission suffered. Besides, Maluleke was fully aware that there was a rule 31 application for postponement. Subrule 23 (3) provides for a different process if subrule (2) is not met. There is no evidence that Maluleke considered the application for postponement. She simply, without giving reasons, declined the application.[28] For all the above reasons, I reach a conclusion that the decision is irrational and ought to be declared to be invalid on application of the principle of legality. commissioner's role during arbitration JR262/17 Minister of Justice and Correctional Services v Police and Prisons Civil Rights Union obo Kgagara and Others (JR262/17) [2021] ZALCJHB 194 (2 August 2021) [36] The commissioners role regarding sanction was restated in the matter of Bridgestone SA (Pty) Ltd v National Union of Metalworkers Union of South Africa and Others[(2016) 37 ILJ 2277 (LAC) at para 17.] where the Labour Appeal Court restated the principles in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[[2007] 12 BLLR 1097 (CC) at para 78.] as follows: To sum up. 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 relevant circumstances.[37] In Sidumo, the Court expressed itself as follows regarding what is expected of the commissioner when considering the fairness or otherwise of the sanction: In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list. second commissioner cannot overrule first commissioner's ruling JR1793/16 Telkom SA SOC Ltd v Commission for Conciliation, Mediation & Arbitration, Johannesburg and Others (JR1793/16) [2021] ZALCJHB 201 (2 August 2021) [25] Commissioner Nkopane ruled that Mr. Ngwepe was dismissed on 19 June 2008 and not 07 January 2016. The Second Respondent was mandated to consider the condonation application and decide whether or not to grant condonation. Instead, the Second Respondent second guessed the ruling of Commissioner Nkopane by ruling that the dismissal was on 07 January 2016, by so doing, she exceeding her powers. As a Commissioner, she lacks the power to second guess or review the decision of another Commissioner. It will therefore be in the interest of justice that the ruling of the Second Respondent be reviewed and set aside. conciliation: commissioner's duty JS991/20 Matunga v G and R Hydraulics (Pty) Ltd (JS991/20) [2021] ZALCJHB 343 (29 September 2021) [15] Theron J writing for the majority in September and Others v CMI Business Enterprises CC[6] noted that commissioners have three functions: to resolve disputes; to identify the nature of the dispute and to make recommendations to the parties. These functions are not merely clerical and inevitably call for application of the mind, discretion and some adjudication and these functions are effectively to be exercised at the stage contemplated under section 135 as set out above. This is at the stage of conciliation. 90 date prior for referring a dispute JS991/20 Matunga v G and R Hydraulics (Pty) Ltd (JS991/20) [2021] ZALCJHB 343 (29 September 2021) [26] My attention was drawn by Mr Rasmussen to the decision in NUMSA and Another v BMW (South Africa) (Pty) Ltd[(2019) 40 ILJ 1818 (LC)] in which case van Niekerk J held on an interpretation of section 191(5)(b) read with section 191(11) that the 90 days for the referral to the Labour Court is reckoned from the date the Commissioner has certified that the dispute remains unresolved.[15][27] NUMSA v BMW thus follows the authority of the LAC in Hernic. In NUMSA and Another v BMW (Pty) Ltd the dispute was referred to the CCMA for conciliation on 15 February 2018 which process took place on 13 July 2018 and the commissioner issued a certificate of non-resolution. On 11 October 2018, NUMSA referred a dispute to the Labour Court for adjudication. The employer raised a special plea contending that the dispute was referred for adjudication out of time. In dismissing the special plea, the Court relied on Hernic and concluded that the remarks of the LAC in Manentza are obiter to the extent that the SATAWU obo Manentza judgment made reference to any referral for adjudication. The Court held that: [28] I am in agreement with the position expressed by the court in NUMSA v BMW. CCMA continued in determining the appropriateness of the sanction JR1890/16 Department of Public Works, Roads and Transport, Mpumalanga Provincial Government v Sambo NO and Others (JR1890/16) [2021] ZALCJHB 334 (4 October 2021) [15] Thus, in determining the appropriateness of the sanction, the arbitrator must enquire into the gravity of the contravention of the disciplinary rule; the consistent application of the disciplinary rule and sanction; and the mitigating and aggravating factors. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[[2007] 12 BLLR 1097 (CC) at para 78.] the Constitutional Court held that: In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employees challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employees conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list. [17] The basis of this finding was that the applicant failed to lead evidence to show that the trust relationship was broken. In this regard, the arbitrator clearly failed to take into consideration the employees position, the serious nature of the allegations against them, the public interest in ensuring that allegations of corruption and mismanagement in the public service are acted against swiftly and efficiently. Had he done so, he would have found that corruption went to the heart of the employment relationship and further that it was destructive. jurisdiction when retrenchment consultation of one employee alone JS1058/20 Mbombi v Bluespec Holdings (JS1058/20) [2021] ZALCJHB 338 (6 October 2021) [16] Furthermore, as held in PGC Group of Companies (Pty) Ltd v CCMA [2007] ZALC 59; [2021] 3 BLLR 287 (LC) (PGC Group), the CCMA has jurisdiction to arbitrate a dispute relating to an alleged unfair dismissal based on the employers operational requirements where the employer followed a consultation procedure that applied to that employee only, [4] even when more than one employee was dismissed. [5] On the facts in this matter, the Respondent followed a consultation procedure vis--vis the Applicant that applied to the Applicant alone. referral of one dispute but conciliation on another dispute allowed? JS614/20 Motlhoioa v Council for Scientific Research and Industrial Research (JS614/20) [2021] ZALCJHB 340 (6 October 2021) [24] A party is not necessarily confined to the type or nature of the dispute which he/she/it has referred to the CCMA. A party would, however, be confined to what dispute had been conciliated. [25] In Driveline Technologies (Pty) Ltd [ [2000] 1 BLLR 20 (LAC).]the Labour Court had to determine whether subsequent to the issuing of a certificate of outcome by the Bargaining Council in an unfair dismissal (retrenchment) dispute, the union could amend its statement of case to reflect that there had been an automatically unfair dismissal. On the facts, the applicant referred the dispute to conciliation and described the dismissal as an unfair termination of services and this was reflected on the certificate.[5] When the dispute was subsequently referred to the Labour Court for adjudication, it was referred as a dismissal on the basis of operational requirements.[6] NUMSA already filed a statement of case with the Labour Court and subsequently wanted to amend that statement of case.[7] The Court held that that the parties were bound by the categorization of the dispute by the conciliator who heard the dispute and not necessarily the categorization reflected on the form which is first submitted to the CCMA. [26] The matter then went on appeal and the Labour Appeal Court held that there is no doubt that operational requirements or automatically unfair are merely reasons for the dismissal and do not constitute a dispute on their own and that on a proper reading of section 187(1) of the LRA it is clear that whether a dismissal is automatic or not depends on the reason. This was confirmed by the Constitutional Court in National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and Others[8]. It is therefore clear on a proper interpretation of section 157(4), section 191 and section 187(1) of the LRA, what is referred to conciliation is the dispute and not the cause of action (or any claims that may stem from the dispute). [27] The Labour Appeal Court went on to state that section 157(4)(a) of the LRA grants the Labour Court a discretion to determine a dispute which has not been submitted to conciliation.[] It stated the following in this regard: The certificate which a mediator is obliged to issue in terms of s 135(5)(a) of the Act requires a statement only that the dispute has remained unresolved. Naturally enough the conciliator would state what dispute remained unresolved, otherwise the certificate of outcome would be unsatisfactorily vague. It would not serve to alert the Labour Court to what the parties had discussed in the conciliation phase. But it has no bearing on the future conduct of the proceedings. The forum for subsequent proceedings is determined by what the employee alleges the dispute to be. According to this characterization, the employee may either request the commission to arbitrate the dispute or may refer it to the Labour Court. It is unnecessary to consider here what the consequences are if the employee's categorization of the dispute turns out to be incorrect. In the present case, the dispute could, so the appellants allege, either have been classified as an unfair dismissal for operational reasons in terms of s 188(1)(a) (ii) or as an automatically unfair dismissal in terms of s 187(1)(c) of the Act to compel the employee to accept the employer's demand on a matter of mutual interest. In either case the appropriate forum would be the Labour Court. [29] In its majority judgment in Intervalve, the Constitutional Court held as follows: Section 191(5) creates two conditions one of which must be met before a dismissal dispute may be arbitrated or may be referred to the Labour Court for adjudication. The first condition is that the CCMA or bargaining council, as the case may be, must have issued a certificate of non-resolution of the dispute. The second is that a period of 30 days from the date on which the CCMA or the bargaining council received the referral must have lapsed.[13]Section 191(5) stipulates one of two preconditions before the dispute can be referred to the Labour Court for adjudication: there must be a certificate of non-resolution, or 30 days must have passed. If neither condition is fulfilled, the statute provides no avenue through which the employee may bring the dispute to the Labour Court for adjudication.[14] [31] In Association of Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty) Limited (In Liquidation) and Others,[(2020) 41 ILJ 1837 (CC)] the Constitutional Court dealt with the issue of whether the Labour Court had jurisdiction to adjudicate an automatically unfair dismissal cause of action where an unfair dismissal dispute had been referred to conciliation at the CCMA.[17][32] The Constitutional Court held that the Labour Court indeed had jurisdiction to adjudicate the automatically unfair dismissal claim. It considered section 191 of the LRA which requires dismissed employees to refer disputes about "the fairness of a dismissal to conciliation" and if conciliation fails and the employee alleges that the reason for the dismissal is one listed in section 191(5)(b) of the LRA (automatically unfair, operational requirements, participation in an unprotected strike and the employees' refusal to join, refused membership or expulsion form a trade union or closed shop agreement), the employee may elect to refer the dispute either to the relevant bargaining council for arbitration, or for adjudication to the Labour Court.[33] The Constitutional Court emphasised that what is referred to conciliation is the dispute and not the cause of action or claims which may arise from the dispute. It was made plain that the reason for the dismissal is always known by the employer prior to conciliation and it is often only at this juncture where employees understand the true reason for the dismissal.[34] The Constitutional Court rejected the Labour Court's view that: "a referral to conciliation of an unfair dismissal dispute does not include an automatically unfair dismissal dispute" and therefore in terms of section 157(4) of the LRA the Labour Court may refuse to adjudicate the dispute if it was not conciliated.[35] The Constitutional Court cited with approval the Intervalve judgment which held that: “Section 157(4)(a) confers upon the Labour Court the power to refuse to determine a dispute if it is not satisfied that an attempt has been made to resolve the dispute through conciliation. Section 157(4)(b) then provides that a certificate issued by a commissioner that a dispute remains unresolved is sufficient proof that an attempt has been made to resolve that dispute through conciliation."[18] [42] In September and Others v CMI Business Enterprise CC,[(2018) 39 ILJ 987 (CC).] the Constitutional Court was required to determine whether courts are allowed to have regard to evidence resulting from conciliation proceedings. On the facts, the applicants lodged two referral forms with the CCMA, the first was for an alleged unfair labour practice and the second was for alleged unfair discrimination.[21] During conciliation proceedings, it became apparent that the dispute pertained to constructive dismissal as opposed to unfair discrimination.[22] However, the certificate of outcome indicated that the dispute was for unfair discrimination.[43] In the majority judgment, Theron J stated the following: In my view, the commissioner is not bound by a party’s categorisation of the nature of the dispute. Rule 15 clearly intended the commissioner to have the right and power to investigate and identify the true nature of the dispute.[23] [44] The majority went further to say that the general rule is that the referral form and the certificate of outcome are prima facie evidence of the nature of the dispute which was conciliated, but that a party alleging that the nature of the dispute differs from the aforementioned could adduce evidence to such effect.[24] Furthermore the Constitutional Court held that the ultimate question which needs to be asked is whether during conciliation, the substance of the dispute became apparent.[25] In order to adduce evidence to this effect, one would have to be able to rely on the record of the conciliation process.[45] Theron J remarked that an order of court permitting disclosure of a conciliation record relating to the nature of the dispute, would be issued sparingly and only where the interests of justice warrant disclosure.[26][46] On this basis, the Constitutional Court held that evidence as to the nature of the dispute dealt with during conciliation proceedings may be led and that it is not privileged: Evidence as to the nature of the dispute is, to my mind, not privileged. This evidence does not relate to the substance of the proceedings and is merely descriptive. There is nothing in the majority judgments in either Driveline or Intervalve which precludes approaching the question of what dispute was conciliated and what was referred to the Labour Court for adjudication as a question of substance that requires substantive adjudication. In order to determine whether a matter referred to the Labour Court for adjudication had first been referred to the CCMA for conciliation, the first point of reference is the referral documents. However, if there is a dispute as to the nature of the dispute referred to the CCMA then regard may be had to evidence outside of these documents.[27] [54] ... The importance of section 191 in this regard relates to the conciliation or attempt to resolve the issues between the parties i.e. the substance of the dispute between them as apparent during the conciliation, regardless of the dispute which had been categorised in the LRA form 7.11 as sent to the CCMA. [56] Whilst the actual settlement negotiations are without prejudice, what is said about the type or nature of the dispute is not privileged. This means that what was said during conciliation proceedings about the true nature of the dispute/s may be referred to and relied upon in subsequent proceedings to determine the actual dispute/s subsequently if a dispute arises in that regard (like during a trial before this Court). [57] In relation to whether there is uncertainty about the true nature of the dispute, the majority of the Constitutional Court (a full bench with a single dissenting judgment from Zondo DCJ) has now pronounced that the employee party is not confined to the dispute as framed in the form LRA 7.11 and that the referral of a specific dismissal dispute to conciliation process is not a precondition that must strictly be satisfied before this Court has the necessary jurisdiction to adjudicate that specific dispute. [59] In summary, despite the categorization of the dispute by the Applicant in its CCMA referral documents as an unfair labour practice, and the CCMAs certificate of outcome of dispute indicating that an unfair discrimination dispute was conciliated and was to be referred to adjudication before this Court, this Court has the discretion to grant an order in casu allowing the parties to rely on the record of the conciliation proceedings in order to demonstrate whether or not an automatically unfair dismissal dispute was also conciliated by the CCMA. I am of the view that the interest of justice warrants disclosure of the conciliating record. jurisdiction regarding a premature referral of a dismissal dispute:71.1 where conciliation has taken place before the dismissal;71.2 where the date of dismissal has been misconstrued by the employee and the technical error needs to be rectified; and71.3 where the dismissal occurs before the conciliation but after the date of referral of the dispute (in casu). JS614/20 Motlhoioa v Council for Scientific Research and Industrial Research (JS614/20) [2021] ZALCJHB 340 (6 October 2021) conciliation before the dismissal date: [74] In Paper Printing Wood and Allied Workers Union and others v Nasou-Via Afrika, A Division of the National Education Group (Pty) Ltd,[(1999) 20 ILJ 2101 (LC).] a special plea was raised on the basis that the dismissal dispute was referred to the CCMA prematurely, since the dismissal dispute was referred to the CCMA prior to the employees dismissal. The dispute was conciliated (on 29 May 1998) before the date of dismissal (8 June 1998) and this Court referred the dismissal dispute back to the CCMA for conciliation. The issue was not that the dispute had been referred before the date of dismissal but rather that the dispute had been conciliated before the dismissal date hence the finding of Revelas J that the dispute was not properly before this Court as it had been referred to the CCMA and conciliated prematurely. Clearly the CCMA did have jurisdiction to conciliate a dispute which was referred prior to the date of dismissal provided that the conciliation took place after the date of dismissal and there was a dismissal dispute to conciliate, otherwise the learned judge would not have referred the self-same dismissal dispute back to the CCMA for conciliation. The Court also held that if there is no legal certainty as to when a dismissal dispute may be referred to the Labour Court for adjudication, there is a chance that premature referral may be prejudicial to either of the parties.[30]...[77] The Court found that the referral of the unfair dismissal dispute was premature and a nullity, and that it thus lacked jurisdiction, because as at the date of conciliation, there were no dismissals yet and therefore a dismissal dispute could not have been conciliated (unlike in casu where at the date of conciliation, the Applicant had been dismissed and an unfair dismissal dispute could be conciliated). The Court in Darmag Industries supra did not lack jurisdiction simply because the dispute had been referred to the CCMA before the date of dismissal. [81] The Applicant in casu did not refer an unfair dismissal dispute to the CCMA before her alleged dismissal. The Applicant contends that such an unfair dismissal dispute was, however, conciliated on 27 January 2020 on a date subsequent to the alleged date of dismissal (31 December 2019). Therefore, objectively speaking, all the necessary facts that would give the CCMA jurisdiction to entertain an unfair dismissal dispute between the Applicant and the Respondent were in existence by the conciliation date on 27 January 2020. [83] In referring to Zeuna-Starker supra, the Commissioner highlighted that Myburgh JP made it clear that the CCMA is under a duty to ensure that it has jurisdiction to conciliate a case before doing so and that the learned judge went on to say the following:[6] The commissioner was obliged to enquire into the facts to decide whether he had jurisdiction to conciliate the dispute, He was not bound by the description, and date of the dispute provided by the respondent in the form LRA 7.11. Rather, the commissioner was obliged to examine all the facts in order to ascertain the real dispute between the parties.[38] Postponement application JR262/20 SATAWU obo Theledi v Commission for Conciliation, Mediation and Arbitration and Others (JR262/20) [2021] ZALCJHB 368 (20 October 2021) [9] Pertinently, the CCMA Practice and Procedure Manual,[5] also underscores the Commissioners discretion to decide whether an application for postponement should be granted or refused; a discretion that should be exercised judicially and for substantial reasons. It also enjoins a party seeking postponement to approach the CCMA timeously and as soon as the circumstances which may justify an application become known to the applicant. Most importantly, the application for postponement must bona fide and as a tactical ploy to delay or gain unfair advantage and should not cause prejudice to the other party.[6][10] In Carephone (Pty) Ltd v Marcus NO and Others,[7] while the LAC echoed the principles applicable in postponements as alluded to in Qwelane, it drew attention to the fact that postponements at the CCMA should be treated with circumspect as they are not necessarily on a par with that in courts of law for the following reasons: The first is that arbitration proceedings must be structured to deal with a dispute fairly quickly (s 138(1)). Secondly, it must be done with 'the minimum of legal formalities' (s 138(1)). And thirdly, the possibility of making costs orders to counter prejudice in good faith postponement applications is severely restricted[8][11] In the present instance, the application for postponement was not made timeously nor was PRASA warned of the turn of events. The medical certificate was not presented to the Commissioner but a picture was shown from Mr Sigidanes cell phone. The Commissioner took into account that there had been postponements before and was not convinced that Ms Theledi was indeed indisposed. Ms Theledi had attended the proceedings the previous day and it was reasonable for the Commissioner to request to know what had befallen her overnight.[12] Nonetheless, SATAWU did not request indulgence to substantiate its claim by either calling the doctor or request that the matter stand down to make alternative arrangements. Breakdown of trust relationship established at arbitration? JR1516/19 Kekana v Education Labour Relations Council and Others (JR1516/19) [2021] ZALCJHB 408 (1 November 2021) [23] The applicants contentions that there was no evidence led in regards to the breakdown in the trust relationship is nonetheless debunked by his own reference to Implala Platinum Limited v Jansen and others[[2017] 4 BLLR 325 (LAC).], which he had acknowledged laid down the principle that a breakdown of a trust relationship may be implied from the nature of the misconduct itself without more. This principle was further reiterated in Khambule v National Union of Mine Workers and Others[(JA89/17) [2019] ZALAC 61; (2019) 40 ILJ 2505 (LAC) at para 13], where the Labour Appeal Court (LAC) further added that even if evidence was led of a breakdown in the relationship, it is ultimately the arbitrator who must determine whether a dismissal in the circumstances of the matter before him, is the appropriate sanction. reasons for conciliation JR1187/17 Manyala v MEC of Health, Mpumalanga and Others (JR1187/17) [2021] ZALCJHB 423 (5 November 2021) [8] The respondents are correct and their contention is supported by the case law. In NUMSA v Intervalve (Pty) Ltd and Others[[2015] 3 BLLR 205 (CC)], Cameron J explained the purpose of section 191 as being to ensure that, before parties to a dismissal or unfair labour practice dispute resort to legal action, a prompt attempt should be made to bring them together and resolve the issue before them. Resolving the issues early has benefits not only for the parties who avoid conflict and costs, but also for the broader public, which is served by the productive outputs of peaceable employment relationship. The general purpose of section 191 is to enable the employer to participate in the conciliation proceedings.[9] In NUMSA v Driveline Technologies[[1999] ZALC 157 (LC) para 38], Zondo AJP (as he then was) explained the provisions of section 191 as follows: The Act requires some disputes to be referred to arbitration, and, others, to adjudication, if conciliation fails. Whether a dispute will end up in arbitration or adjudication it must first have been referred to conciliation before it can be arbitrated or adjudicated. [53] Commissioners and arbitrators in the CCMA and in bargaining councils established in terms of the LRA are bound to follow and apply the rationes decidendi of the higher courts. As is confirmed in Le Roux, those officials are unquestionably bound by [those] judgments[]. CA 1/2021 Myers v The National Commissioner of South African Police Service and Another (CA 1/2021) [2022] ZALAC 102 (30 June 2022) [52] While the res judicata and stare decisis principles seem to have the same broad object, namely, to ensure certainty and finality, they are indeed two different concepts. There is no question that stare decisis is applicable to proceedings in the Commission for Conciliation, Mediation and Arbitration (CCMA) and in bargaining councils. The full Latin maxim states stare decisis et non quieta movere meaning one stands by decisions and does not disturb settled points.[See, inter alia, Turnbull Jackson v Hibiscus Coast Municipality and Others 2014 (6) SA 592 (CC) ("Turnbull Jackson") para 50 fn. 100.] [58] It can hardly be contended that the power of an arbitrator and a commissioner in terms of section 158(1) of the LRA, to conduct the arbitration in a manner that he or she considers appropriate, is the equivalent of a courts powers in terms of section 173 of the Constitution. The power to develop the common law belongs exclusively to the courts and the legislature. principle of res judicata, principles of autre fois acquit or res judicata CA 1/2021 Myers v The National Commissioner of South African Police Service and Another (CA 1/2021) [2022] ZALAC 102 (30 June 2022) [56] In BMW (SA) (Pty) Ltd v Van der Walt[24] this court held, in the context of whether a second disciplinary enquiry in respect of the same misconduct could be instituted by the same employer against the same employee, that it was not necessary to decide whether the principles of autre fois acquit or res judicata applied in Labour law, since, ultimately, the question was one of fairness, which was paramount[25]. In Feni v Commission for Conciliation, Mediation and Arbitration and others [26] this Court once again considered the question, but did not conclude that the principle of res judicata was applicable, although it held that the principle of lis alibi pendens was, apparently following the lead of the Constitutional Court in Association of Mineworkers and Construction Union and others v Ngululu Bulk Carriers (Pty) Ltd (in liquidation) and others[27], where it, seemingly, accepted that the lis pendens principle would be applicable in labour law. jurisdiction: Section 73A BCEA: Minimum wage and calculation JR 2047/20 Prestige Campworld (PTY) Ltd t/a Comet Caravans v Morne and Others (JR 2047 / 20) [2022] ZALCJHB 213; (2022) 43 ILJ 2379 (LC) (26 July 2022) Basic Conditions of Employment Act, 1997 - section 73A considered - claims to the CCMA only competent for employees earning less than threshold under section 6(3) Basic Conditions of Employment Act, 1997 - section 6(3) considered - meaning of "earnings" considered - earnings include commissions earned by employee - Review application - commissioner erroneously determining earnings of employee - employee earning in excess of threshold in terms of section 6(3) - CCMA having no jurisdiction to entertain claim under section 73A - arbitration award reviewed and set aside. referral form signed, but on wrong place JR 786/2021 Mothupi v SA Local Government Bargaining Council and Others (JR 786/2021) [2022] ZALCJHB 232 (15 August 2022) [16] What the above chronology discloses, and which neither the second or third respondents or any of the parties raised in any of the proceedings sought to be reviewed, is that the original referral form, filed with the bargaining council on 14 February 2019, bears the signature of the applicant, albeit in the incorrect place. I fail to appreciate therefore how it can be said that the initial referral was thus defective by any measure, there was substantial compliance with the relevant rule requiring a referring party personally to sign the referral form. The matter ought properly to have ended there. rescission application: in deciding whether a judgment was erroneously granted, a court is not confined; good cause not required JR 786/2021 Mothupi v SA Local Government Bargaining Council and Others (JR 786/2021) [2022] ZALCJHB 232 (15 August 2022) [18] This court has drawn on the principles established by the High Court in its application of Rule 42 (1), the basis for the drafting of section 144. An award or ruling will be regarded as having been erroneously granted if: there was an irregularity in the proceedings or if it was not legally competent for the court to have made such an order or if there existed at the time of its issue a fact of which the judge was unaware which would have precluded the granting of the judgement and which would have induced the judge, if he had been aware of it, not to grant the judgment. Though in most cases such an error would be apparent on the record of the proceedings, it is submitted that in deciding whether a judgment was erroneously granted, a court is not confined to the record of the proceedings (Myburgh and Bosch Reviews in the Labour Court, at p 395, quoting Erasmus HJ Superior Court Practice B1-308.) [19] Turning then to the ruling under review, to the extent that the third respondent considered that the applicant had failed to show good cause (see paragraph 11 of the award), good cause is not a requirement, except in the case of section 144 (d), when rescission is sought of an award made in the absence of a party. To the extent that the third respondent considered that it was incumbent on the applicant to establish good cause, this is not the case since the applicant clearly relied on the ground referred to in section 144 (b). CCMA continued CCMA incomplete Private Arbitration Private arbitration Test for review in Sidumo apply JR3232/06 Vodacom (Pty) Ltd v Gildenhuys N.O. & Others agreement if not less favourable to ee JR1592/07 Carlbank Mining Contracts (Pty) Ltd v National Bargaining Council for the Road Freight Industry & Others narrow approach D3/07 SATAWU obo Mlotywa v Spoornet (Customer Service and Production Kwazulu-Natal Region) & Others Other case law sited narrow approach Standard Bank of SA v Mosime and others (2008) 10 BLLR 1010 (LC), D3/07 SATAWU obo Mlotywa v Spoornet (Customer Service and Production Kwazulu-Natal Region) & Others Other case law sited Telcordia Technologies v Telkom SA Ltd SCA 26/05 by agreeing to arbitration, the parties limit interference by courts to the ground of procedural irregularities set out in s 33 (1) of the Act. By necessary implication they waive the right to rely on any further ground of review, common law or otherwise. If they wish to extend the grounds, they may do so by agreement. D3/07 SATAWU obo Mlotywa v Spoornet (Customer Service and Production Kwazulu-Natal Region) & Others is consensual Court slow to interfere JS1298/09 Mmethi v DNM Investment CC t/a Bloemfontein Celtics Football Club The test was a narrow one, based on the consensual basis upon which the parties sought to resolve their dispute by way of arbitration with limited statutory imposition on the process. The courts were, as a matter of principle, enjoined in considering reviews of private arbitrations to adhere to the principle of party autonomy, which required a high degree of deference to arbitral decisions and minimized the scope for intervention by the courts. JR 1475/10 Mxalisa and Others v Dominion Uranium Joint and Another Jurisdiction Section 147: But once the CCMA made the election, the parties were bound by it. (JA 68/13) [2015] ZALCJHB 2 Kgekwane v Department of Development Planning and Local Government, Gauteng Jurisdiction Referral premature. Dispute to CCMA while he was serving out his notice period. (C02/2014) [2015] ZALCCT 2 Helderberg International Importers (Pty) Ltd v McGahey NO and Others Jurisdiction Thus, once a challenge to the CCMAs jurisdiction was raised, the commissioner was required to refer it to the appropriate CCMA official for a decision in terms of s 147 of the LRA. (JA 119/13) [2015] ZALCJHB 5 Qibe v Joy Global Africa (Pty) Ltd JR226/2016 Eskom: Rotek Industries Soc Ltd v Mans and Others (JR226/2016) [2017] ZALCJHB 321 (7 September 2017) [39]As stated by the Court in Telcordia it is a fallacy to label a wrong interpretation of a contract, a wrong perception or application of South African law, or an incorrect reliance on inadmissible evidence by the arbitrator as a transgression of the limits of his power. The power given to the arbitrator was to interpret the agreement, rightly or wrongly; to determine the applicable law, rightly or wrongly; and to determine what evidence was admissible, rightly or wrongly. Errors of the kind mentioned have nothing to do with him exceeding his powers; they are errors committed within the scope of his mandate. Otherwise a review would lie in every case in which the decision depends upon a legal issue, and the distinction between procedure by appeal and procedure by review, so carefully drawn by statute and observed in practice, would largely disappear. [22] The award sought to be reviewed in this instance is an award by a private arbitrator pursuant to an agreement between the parties containing an arbitration clause. As such, the legal principles applicable to review applications in terms of sections 145 and 158(1)(g) of the LRA, (as enunciated in Sidumo & another v Rustenburg Platinum Mines Ltd & others[11] and some of the other cases since Sidumo[12] do not find application in this review. [24] Section 33(1) of the Arbitration Act reads as follows:(1) Where-(a) any member of an arbitration tribunal has misconducted himself in relation to his duties as arbitrator or umpire; or(b) an arbitration tribunal has committed any gross irregularity in the conduct of the arbitration proceedings or has exceeded its powers; or(c) an award has been improperly obtained, the court may, on the application of any party to the reference after due notice to the other party or parties, make an order setting the award aside. Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and another 2009 (4) SA 529 (CC). Courts should be respectful of the intention of the parties in relation to procedure. In so doing, they should bear in mind the purposes of private arbitration which include the fast and cost-effective resolution of disputes. If courts are too quick to find fault with the manner in which arbitration has been conducted, and too willing to conclude that the faulty procedure is unfair or constitutes a gross irregularity within the meaning of section 33(1), the goals of private arbitration may well be defeated.' Labour Court jurisdiction JA22/201 SAFPU and Others v Free State Stars Football Club (Pty) Ltd (JA22/2016) [2017] ZALAC 16; (2017) 38 ILJ 1111 (LAC) (21 February 2017) dispute resolution forum onerous for employee who must pay fees unlike in the Labour and Labour Appeal Court; moreover employees would have the benefit of speedy resolution mechanisms of the LRA; matter requiring little evidence as impermissible to retrench fixed term employees; Labour Court more suitable than forum to hear the dispute (a) The onus of satisfying the court that it should not exercise its discretion in favour of referring the matter to arbitration is on the party who instituted the legal proceedings (the appellants). See Kathmer Investments (Pty) Ltd v Woolworths (Pty) Ltd[3] and Universiteit van Stellenbosch v J A Louw (Edms) Bpk.[4](b) The discretion of the court to refuse arbitration may only be exercised when a "very strong case" is made out. See The Rhodesian Railways Ltd v Mackintosh[5] and National Bargaining Council for the Road freight Industry and Another v Carl Bank mining Contracts (Pty) Ltd and Another[6]. It has also been said that "there should be 'compelling reasons' for refusing to hold a party to his contract to have a dispute resolved by arbitration". See Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd[7]. Lastly, it has been held that a court must be satisfied that there is no sufficient reason why the matter should not be referred to arbitration in accordance with the agreement. See Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd relying on Bristol Corporation v John Aird & Co.[8] reasonableness of the belief to one of the accuracy of the facts upon which the belief was based JA90/15 Lou-Anndree v Afrox Oxygen Limited (JA90/15) [2018] ZALAC 4 (29 January 2018) There is no ulterior motive; the appellant acted in good faith and reasonably believed that the information was substantively true. It then follows that the respondents contention that the appellant was dismissed for incompatibility is nothing short of fiction and the only probability is that the appellants dismissal was in retaliation for her disclosure of the irregularities in the re-grading process. suffered occupational detriment. Her dismissal is therefore automatically unfair and, as such, she is awarded compensation equivalent to 18 months remuneration based on the gross salary she was earning at the time of her dismissal. Section 147(6) of the LRA JR558/16 Naidoo v Liberty Holdings (JR558/16) [2019] ZALCJHB 56 (19 March 2019) "May refer to arbitration" [13] The arbitrator correctly adhered to that the decision to actually refer the matter to private arbitration (or not to refer a dispute at all), lies with the applicant. Once the appropriate route is determined to be that of private arbitration, the CCMA steps aside and the aggrieved party has the recourse of private arbitration, if he so wishes to proceed with his dispute. The statutory grounds of review and the test to apply. JR1909/12 Dlamini v Tshwane University of Technology and Others (JR1909/12) [2019] ZALCJHB 104 (15 May 2019) [45] Although the grounds for review under the Arbitration Act are the same as those in section 145 of the Labour Relations Act, section 33 of the Arbitration Act does not incorporate considerations of reasonableness. Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC). The twin hallmarks of private arbitration are thus that it is based on consent and that it is private, i.e. a non-State process. It must accordingly be distinguished from arbitration proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of the Labour Relations Act 66 of 1995 which are neither consensual, in that respondents do not have a choice as to whether to participate in the proceedings, nor private. Given these differences, the considerations which underlie the analysis of the review of such proceedings are not directly applicable to private arbitrations.[50][46] The Constitutional Court also held that " the values of our Constitution will not necessarily best be served by interpreting s 33(1) in a manner that enhances the power of Courts to set aside private arbitration awards. Indeed, the contrary seems to be the case.[51][47] The Constitutional Court further stated that: Courts should be respectful of the intention of the parties in relation to procedure. In so doing, they should bear in mind the purposes of private arbitration which include the fast and cost-effective resolution of disputes. If Courts are too quick to find fault with the manner in which arbitration has been conducted, and too willing to conclude that the faulty procedure is unfair or constitutes a gross irregularity within the meaning of section 33(1), the goals of private arbitration may well be defeated.[52] Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA). [51] Last, by agreeing to arbitration the parties limit interference by Courts to the ground of procedural irregularities set out in s 33(1) of the Act. By necessary implication they waive the right to rely on any further ground of review, common law or otherwise. If they wish to extend the grounds, they may do so by agreement but then they have to agree on an appeal panel because they cannot by agreement impose jurisdiction on the Court.[54][50] In Telcordia supra it was further held that: An arbitrator has the right to be wrong on the merits of the case, and it is a perversion of language and logic to label mistakes of this kind as a misconception of the nature of the inquiry [55]Likewise, it is a fallacy to label a wrong interpretation of a contract, a wrong perception or application of South African law, or an incorrect reliance on inadmissible evidence by the arbitrator as a transgression of the limits of his power. The power given to the arbitrator was to interpret the agreement, rightly or wrongly; to determine the applicable law, rightly or wrongly; to determine what evidence was admissible, rightly or wrongly. Errors of the kind mentioned have nothing to do with him exceeding his powers; they are errors committed within the scope of his mandate. To illustrate, an arbitrator in a normal local arbitration has to apply South African law but if he errs in his understanding or application of local law the parties have to live with it. If such an error amounted to a transgression of his powers it would mean that all errors of law are reviewable, which is absurd.[56] Volkswagen SA (Pty) Ltd v Koorts NO and others 2011 (32) ILJ 1892 (LAC). " legally able to give effect to the parties' requirement that a private arbitrator render an award which is "rational and justifiable, or any other review standard for that matter. Unless the error thus vitiates the award a review Court is bound to measure the product of private arbitration proceedings against the narrow grounds of review encapsulated in the Arbitration Act of 1965" [58][52] Harms JA in Telcordia supra referred to Dickenson & Brown v Fisher's Executors[59] where reference was made to the general principle that when parties select an arbitrator as the judge of fact and law, the award is final and conclusive, irrespective of how erroneous, factually or legally, the decision was unless the mistake was so gross and manifest that it could not have been made without some degree of misconduct or partiality, in which event the award would be set aside not because of the mistake, but because of misconduct.[60] Amalgamated Clothing and Textile Workers Union of South Africa v Veldspun (Pty) Ltd 1994 (1) SA 162 (A). " it is clear that the word [misconduct] does not extend to bona fide mistakes the arbitrator may make whether as to fact or law. It is only when a mistake is so gross or manifest that it would be evidence of misconduct or partiality that a Court might be moved to vacate an award: Dickenson & Brown v Fishers's Executors 1915 AD 166 at 174-81. It was held in Donner v Ehrlich 1928, WLD 159 at 161 that even a gross mistake, unless it establishes mala fides or partiality, would be insufficient to warrant interference[62] Stocks Civil Engineering (Pty) Ltd v Rip NO and Another [2002] 3 BLLR 189 (LAC). An error of law or fact may be evidence of the above in given circumstances, but may in others merely be part of the incorrect reasoning leading to an incorrect result. In short, material malfunctioning is reviewable, a wrong result per se not (unless it evidences malfunctioning). If the malfunctioning is in relation to his duties, that would be misconduct by the arbitrator as it would be a breach of the implied terms of his appointment. [96] SACCAWU and Others v Pick 'n Pay Retailers (Pty) Ltd and Others [2012] 1 BLLR 71 (LC). Private Arbitration incomplete

Labour Law cases decided in the South African Courts (Highlights and updated 1997 to 12 2025 [Copyright: Marius Scheepers/16.4.1])     Affirmative action, Automatically unfair dismissal, Unfair Discrimination (including retirement age) Affirmative action National and Regional demgrafics had to be taken into account, Discrimination not protected ito section 6(2) EEA C 368/2012 Solidarity v Department of Correctional Services     AA plan defense of affirmative action rejected where employer has already met its targets; arbitrary exclusion of white male from senior post amounting to unfair labour practice J 1161/2004 Willemse v Patelia & Others     Fines the relevant provisions relate to penalties, the more lenient construction to the person liable to be fined should be preferred. This meant that the fine should be imposed for violation of the compliance order, subject to the court exercising a discretion in terms of the amount of the fine (up to the maximum penalties imposed by the Act). Relevant factors include the purposes of the Act; the extent of the contravention; the period the contravention has endured; the reasons for non-compliance; attempts made to comply, if any; the maximum fine prescribed and any relevant considerations relating to the respondent. To ensure compliance, the fine should have a punitive and preventative element, but should not be characterised by an element of retribution. D730/05 Director-General of the Department of Labour v Jinghua Garments (Pty) Ltd     Right to preferential treatment Designated person does not have right to preferential treatment CA1/05 Dudley v The City of Cape Town & Another     Employment equity Plan, the issue was what constituted a rational coherent employment equityplan and action in line with such a plan, numerical targets,  not in line with a defensible employment equity plan and as suchthe conduct of the respondent against the applicant was unfairly discriminatory. D253/03 Munsamy v Minister of Safety and Security and Another     Employment equity plan of the Department required a rigid application of quotas based on demographic representivity. (Argued: quota system which had failed to take account of the individual circumstances of the appellants. The plan, they contended, made provision for appointments, transfers or promotions by reference to quotas which strictly reflected the demographic representivity of the races and sexes throughout South Africa. Potential for their dignity to be infringed) Court proceeded to examine the distinction between a quota (impermissible under the EEA) and the permissible concept of numerical targets. Individual self-worth, and therefore the dignity of all who lived in the country, could only be attained by removing the hierarchy of privilege and power which was sourced in a racist and sexist system. The court held that the Departments plan passed the test required in terms of the EEA as read together with the Constitution. South African Police Services v Solidarity obo Barnard 2014 (6) SA 123 (CC). (CA23/13) [2015] ZALAC 6 Solidarity and Others v Department of Correctional Services and Others     characteristics of administrative action based on existing jurisprudence JR46/16 Association of Mineworkers and Construction Union (AMCU) v Minister of Labour and Others (JR46/16) [2018] ZALCJHB 107 (13 March 2018) Review  S77(2) of the BCEA and 158 (1) (g) of the LRA-review based on legality-review of ministerial determination falling under PAJA - failure to invoke alternative remedy under section 50 (9) in respect of ministerial determination issued under s 50(8)(c) fatal  review of extension of the agreement extended under section 23 (1) (d) of the LRA - review available only on narrow ground of legality  review of s 23(1)(d) extension ought not to entail interrogation of bargaining process as if it were a hearing - merits of the application and costs. Minister of Defence and Military Veterans v Motau and others 2014 (8) BCLR 930 (CC) at 941 [33] The concept of "administrative action", as defined in section 1(i) of PAJA, is the threshold for engaging in administrative-law review. The rather unwieldy definition can be distilled into seven elements: there must be (a) a decision of an administrative nature_ (b) by an organ of State or a natural or juristic person_ (c) exercising a public power or performing a public function_ (d) in terms of any legislation or an empowering provision_ (e) that adversely affects rights_ (f) that has a direct, external legal effect_ and (g) that does not fall under any of the listed exclusions. Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2005 (10) BCLR 931 (SCA) [24] Whether particular conduct constitutes administrative action depends primarily on the nature of the power that is being exercised rather than upon the identity of the person who does so.  Features of administrative action (conduct of an administrative nature) that have emerged from the construction that has been placed on section 33 of the Constitution are that it does not extend to the exercise of legislative powers by deliberative elected legislative bodies,  nor to the ordinary exercise of judicial powers,  nor to the formulation of policy or the initiation of legislation by the executive,  nor to the exercise of original powers conferred upon the President as head of state.  Administrative action is rather, in general terms, the conduct of the bureaucracy (whoever the bureaucratic functionary might be) in carrying out the daily functions of the State which necessarily involves the application of policy, usually after its translation into law, with direct and immediate consequences for individuals or groups of individuals.[25] The law reports are replete with examples of conduct of that kind. But the exercise of public power generally occurs as a continuum with no bright line marking the transition from one form to another and it is in that transitional area in particular that:[d]ifficult boundaries may have to be drawn in deciding what should and what should not be characterised as administrative action for the purposes of section 33.In making that determination:[a] series of considerations may be relevant to deciding on which side of the line a particular action falls. The source of the power, though not necessarily decisive, is a relevant factor. So, too, is the nature of the power, its subject matter, whether it involves the exercise of a public duty and how closely it is related on the one hand to policy matters, which are not administrative, and on the other to the implementation of legislation, which is. While the subject-matter of a power is not relevant to determine whether constitutional review is appropriate, it is relevant to determine whether the exercise of the power constitutes administrative action for the purposes of section 33.   the Equality Report suggests that socio-economic needs be considered within designated, vulnerable groups. In other words, affirmative action should continue to be implemented on the basis of race, gender and disability, given the persistence of current patterns of economic inequality. However, special measures should be targeted at vulnerable groups within apartheid-era classifications so as to recognise multiple forms of disadvantage that they continue to experience. In this context, the report recommends that the EEA be amended to target more nuanced groups on the basis of need, taking into account social and economic indicators. J3092/18 Solidarity v Minister of Labour and Others (J3092/18) [2019] ZALCJHB 277; [2020] 1 BLLR 79 (LC); (2020) 41 ILJ 273 (LC) (8 October 2019) the South African Human Rights Commission (SAHRC), issued a report entitled Achieving substantive economic equality through rights-based radical socio-economic transformation in South Africa (the Equality Report)...The report concludes, amongst other things, that the definition of designated groups in the EEA (broadly, the categories of persons who are beneficiaries of the affirmative action measures established by the EEA) is not in compliance with constitutional or international law obligations, and recommends that the EEA be amended to target more nuanced groups on the basis of need, and taking into account social and economic indicators. Solidarity seeks only to have the findings and recommendations of the Equality Report given legal recognition and effect, at least until any reviewing court sets them aside. That being so, the court is not concerned with a direct challenge to the constitutionality of s 42 of the EEA [27]      In summary: There is no statutory or other regulatory provision that renders the Equality Report binding on government or any other party. The SAHRC itself does not intend the Report to be binding; it is a research report intended to contribute to the public discourse and to provide advice and guidance to government in fulfilling its constitutional obligations. Since the Equality Report is not binding on government or any other party, it follows that there is no basis on which this court is empowered to confirm or otherwise enforce the reports findings and recommendations for the purpose sought by Solidarity, or for any other purpose.   Automatically Unfair Dismissal (See also Unfair Discrimination) Pregnancy Unfair CA6/99 Woolworths vs Whitehead     pregnancy 187(1)(e) JS270/06 De Beer v SA Export Connection CC t/a Global Paws     discrimination Tempory employee outside list ito s 9 EEA D45/05 McPherson v University of Kwa-Zulu Natal & Another     Given a contract, failed  to resign this was existing company policy JS892/08 Solidarity obo Wehncke v Surf4cars (Pty) Ltd     Onus on employee to show C1051/09 Mouton v Boy Burger (Edms) Bpk     Dreadlocks hair, failed to cut gender discrimination simple question: would the complainant have received the same treatment from the defendant or respondent but for his or her gender, religion, culture etc? Of importance in this enquiry was an evaluation of any impairment to the dignity of the complainants, the impact upon them, and whether there were less restrictive and less disadvantageous means of achieving the purpose. There also had to be a rational and proportional relationship between the measure and the purpose it sought to achieve. Employers, accordingly, should, wherever reasonably possible, seek to avoid putting religious and cultural adherents to the burdensome choice of being true to their faith at the expense of being respectful of the management prerogative and authority. CA6/2010 Department of Correctional Services and Another v POPCRU and Others     limitation of the respondents rights; the impact of the discrimination on the complainants; the social position of the complainants; whether the discrimination impaired the dignity of the complainants; CA6/2010 Department of Correctional Services and Another v POPCRU and Others     whether the discrimination had a legitimate purpose; and whether reasonable steps had been taken to accommodate the diversity sought to be advanced and protected by the principle of non-discrimination. CA6/2010 Department of Correctional Services and Another v POPCRU and Others     Failure to take disciplinary action JS1024/09 Harding v Petzetakis Africa (Pty) Ltd     devout Christian who refused to work on Sundays C63/2011 SACTWU and Others v Berg River Textiles     to compel acceptance of demand in respect of matter of mutual interest Held that the dismissal was simply a ploy to get rid of those employees who would not accept changes to their terms and conditions of employment. J3232/00 NACBAWU v Hernic Premier Refractories (Pty) Ltd     Unfair discrimination Employment Equity the EEA must be read with the rest of the Constitution, in casuss205-208 of the Constitution, which demand that national legislation must enable the police service to discharge its responsibilities effectively. Held: The Constitution envisages a balance between the affirmative action imperative and other imperatives including, for present purposes, the need for the police service to discharge its responsibilities effectively. The Constitution does not prescribe how the two imperatives are to be balanced but the balance must be a rationally (sic) one. Held that when an employer defends discriminatory conduct on the basis of s6(2) of the EEA it must also show that its affirmative action measures are in harmony with the rest of the Constitution JS222/02 Coetzer & Others v Minister of Safety & Security & Another     Conditions of employment to switch from a three shift system to a two shift system on the facts ie the version of the respondent employer, the proposed dismissals would be for operational requirements and that the LC ought not therefore to have granted an interdict JA9/01 Frys Metals (Pty) Ltd v NUMSA & Others     Harassment Pleadings: had not pleaded that she had been discriminated against on one of the listed grounds, or a ground analogous to the listed grounds, nor had she indicated a comparative person or group of people in relation to whom she had been treated differently. Insofar as she had indicated this in relation to one person, she had not pleaded anything more than mere differentiation an employee claiming harassment must do more than just make the bald allegation; it (sic) must clearly set out why the harassment amounts to unfair discrimination C1103/02 Aarons v University of Stellenbosch     To accept demand and Retrenchment where an employer has valid operational requirements to address, any dismissal in the course of addressing those requirements cannot be automatically unfair, noting that an employer cannot force employees to, for example, work short time even where this is justified by operational requirements. Held, however, that where employees refuse to accept changes which are justifiable, then the employer may fairly dismiss those employees because the contracts of employment he has with them can no longer properly serve his operational requirements. Held that where a dismissal is conditional, for example where it is dependent on the employee refusing the employers demand, then it will fall within the ambit of s187(1)(c) of the LRA (at [36] - [38], referring to TAWU & others v Natal Co?operative+G158 Timber Ltd (1992) 13 ILJ 1154 (D) and Fry's Metals (Pty) Ltd v NUMSA & others (2003) 24 ILJ 133 (LAC) PA4/01 CWIU & Others v Algorax (Pty) Ltd     Sexual Harassment Damages R150000 for general damages, R23128 for medical expenses and R47348 for the loss of income.  The court also instructed that future loss of income and medical expenses were to be calculated by an actuary for further submission 1853/00 Sonja Grobler (nee Ensink) v Naspers Bpk & Gasant Samuels     Pregnancy if an employee is dismissed on grounds of pregnancy the employer is obliged to apply the guidelines applicable for dismissals for medical incapacity as stated in Hendricks v Mercantile & General Insurance Co of SA (1994) 15 ILJ 304 (LAC). JS919/02 Nomakhosazana Mnguni v Robert Gumbi     Sexual Harassment Damages: Alexander v Home Office ((1988) IRLR 190(CA); Intertech Systems (Pty) Ltd v Sowter ((1997) 18 ILJ 689(LAC)); Ntsabo v Real Security CC ((2003) 24 ILJ 2341(LC)) and Grobler v Naspers Beperk & Another ((2004) 25 ILJ 439 ( C) C323/04 Christian , A v Colliers Properties     Sexual Harassment Damages:  maximum compensation ; patrimonial damages: of R45 000 ; sum of R20 000 in respect of future medical costs would be awarded.; for contumelia and pain, suffering etc. stemmed from the same incident and that it seemed equitable to make a globular award; general damages should be fixed at R50 000 C259/00 Ntsabo, Bongiwe v Real Security cc Sexual Harassment vicarious liability the company was vicariously liable for the sexual harassment committed by Mr Samuels as they were under a legal obligation to ensure safe working conditions and were obliged to protect Ms Grobler from such harassment. It was submitted that various managerial staff were aware of the harassment and were in breach of their duty to prevent its recurrence by remaining passive; common law duty to employees to take reasonable care for their safety and that this could not be confined to physical harm from physical hazards alone. 301/04 Media 24 Limited & Samuels, Gasant v Grobler, Sonia Diabetes Held that in the absence of any convincing evidence pointing to its efficiency the blanket ban was guilty of paternalistically overreaching and accordingly constituted unfair discrimination. Held further that the arguments supported a policy of individual assessments, not one of a blanket ban. Noted that the degree of risk in employing a diabetic was not material as it was no more of a risk of other sudden collapses such as heart attacks or cerebral episodes. C521/03 IMATU; Murdoch, S v City of Cape Town Union activities found guilty of insubordination and disrupting the companys operations the employee should provide evidence to show credible possibility that an automatically unfair dismissal took place and that it then behoved the employer to prove the contrary. Mr Kroukam was an employee from hell who had a history of conflict in the company; evidence supported the claim that the dismissal was for his union activities and therefore automatically unfair JA3/03 Kroukam, I P v SA Airlink (Pty) Ltd Retirement Age Passed retirement age of 65 (67) some form of consultation was required; appropriate compensation was 3 months remuneration JS749/03 Botha W W v Du Toit Vrey & Partners CC Retirement Age agreed retirement age for Ms Venter remained 70, with the option to retire at age 65 Cash Paymaster Services (Pty) Ltd v Browne (SILCS 2005:38; (2005) 14 LAC 8.34.1) the Labour Appeal Court had dealt with forced retirement in the context of s187(1)(f) of the LRA and had held that the forced dismissal of the employee at age 60 was automatically unfair JS 930/04 HOSPERSA obo Venter, T v The South African Nursing Council Incompatibility that the employee had not been given an opportunity to confront his alleged disharmonious conduct and nor had he been counseled or given the opportunity to remedy such conduct. Held therefore that the employer had not discharged its onus to prove that the relationship had irretrievably broken down; his dismissal was in breach of s 187(c) and (d) of the LRA because he had initiated grievances against the companys unfair labour practices. JS799/04 Jabari, M v Telkom SA (Pty) Ltd Unfair discrimination; Affirmative action affirmative action should not be arbitrarily and unfairly applied and referred the Court to Independent Municipality & Allied Workers Union v Greater Louis Trichardt Transitional Local Council ((2000) 21 ILJ 1119 (LC)). P198/04 Baxter, JP v The National Commissioner: Correctional Services & The Minister for Correctional Services Discrimination; belonged to the Baptised Nazarene Group which did not allow them to trim their beards employer stated that the employees were contractually bound to be clean-shaven; this case was not based on contract; neatness is the rationale for regulating beards and it was held that the employers rule, as a security company, was neither arbitrary nor irrational and was in fact an IROJ; S v Negal, S v Solberg (1997 (4) SA 1176 (CC)), concluding that workers were not automatically exempted by their beliefs in complying with workplace rules; religion was such that, in order for everyone to enjoy it equally, some limitation of the right might be necessary. D 671/03 Dhlamini PM & Others v Green Four Security Pregnancy it was improbable that Ms Ndlovu would have chosen to leave before she had to, as she was in somewhat straitened financial circumstance JS 230/05 Ndlovu, M v Pather, S Retirement Age held that the school had no retirement policy at the time they employed Ms Evans and that they could not unilaterally implement new terms and conditions without her consent. The Court held further that she was dismissed because of her age; there was an agreement between Ms Evans and her employer that she would work until the age of 65. JS 387/05 Evans, B P v Japanese School of Johannesburg Pregnancy the dismissal of Ms Uys was not associated with her pregnancy; there had been room for Ms Uyss rehabilitation within the company and that the sanction of dismissal was unjust. JS 242/05 Uys, M v Imperial Car Rental (Pty) Ltd Discrimination; Sexual harassment vicarious liability Should first of all promptly launch an investigation which will leave no reasonable stone unturned to try and find the perpetrator, if the identity of the perpetrator is not known. Second, it should take immediate steps to provide the employee with the best possible support in the form of counseling to establish what, if any, the psychological impact of the incident was on the employee. Third, the employer should as soon as possible take steps to eliminate or at least reduce the possibility of the incident recurring, irrespective of whether or not the trauma was caused by an employee or someone else. C32/05 Piliso v Old Mutual Life Assurance (SA) Ltd & Others alleged; Employee dismissed for exercising rights conferred by the LRA; dismissal was therefore based on her exercising her rights by referring the matter to the bargaining council JS838/06 Mutale v Lorcom Twenty Two CC automatically unfair as it was based on his age, noevidence to show what the retirement age was for an external sales consultant in theemployers business. D775/2010 Hibbert v ARB Electrical Wholesalers (Pty) Ltd Pregnancy Decision to terminate the applicants services had been taken in view of problems surrounding her performance, particularly an altercation with an important client the previous week, and had nothing to do with her pregnancy. (JS 574/10) [2013] ZALCJHB 168 Nadia v B&B t/a Harvey World Travel Northcliff Sexual harassment No sexual connotation in the messages sent. Commissioner had failed to have regard to the power imbalances between the complainant and the employee and her explanation in the arbitration that she failed to report the harassment earlier. Senior managerial position to refrain from any conduct that would contribute to a hostile work environment. Where the complainant signalled her discomfort and advised him that contact was unwelcome. In terms of the code a single incident of harassment could constitute sexual harassment and it was not necessary that the recipient had made it clear that the behaviour was considered offensive. The failure by the commissioner to take proper account of the 2005 Code. Dismissal substantively fair. (C350/13) [2014] ZALCCT 15 SA Metal Group (Pty) Ltd v CCMA and Others Missions premises through a access gate manned by security guards employed by the Mission which was the appellants landlord. The respondents sin was to fall pregnant and be unmarried. contended that it as employer did not have an obligation to intervene where one of its employees had contravened the landlords code. Employers were under an obligation to observe the anti-discriminatory provisions. (DA2/13) [2014] ZALCD 17 Ekhamanzi Springs (Pty) Ltd v Mnomiya Employee having asked of consultant to his employer whether she wanted a lover that might. Question posed after a dinner whilst travelling outside the country. Question posed more in hope than expectation. No workplace power differential. Although inappropriate not sexual harassment. C751/2013 Simmers v Campbell Scientific Africa (Pty) Ltd Dismissal was the exercise of a right in terms of the LRA. Invalid in terms of the protection afforded by s 5(4) of the LRA. Demand to withdraw the referral, failing which the respondent would invoke the option of terminating her service in terms of the outcome of the disciplinary enquiry. (JS921/13) [2014] ZALCJHB 312 Rankoane v Shoprite Checkers (Pty) Ltd Sexual harassment Male superior undressing near female assistant; taking her to Teazers restaurant; and invading her personal space in wokplace. Allegations of offer of money for sex not plausible. In context of close relationship and the facts that at the time they happened nothing was not wanted by the applicant, the incidents of harassment not amounting to sexual harassment. Applicant never once complained about the manner in which she was being treated, and only did so for the first time when issued with the warning. (JS832/2013) [2014] ZALCJHB 342 Bandat v De Kock and Another Employee having been asked in her interview whether she intended having children in next five years. Court finding on the evidence that dismissal was on account of her pregnancy. (JS932/2012) [2014] ZALCJHB 343 Heath v A & N Paneelkloppers Retirement Age. Defence provided by s 187(2)(b) of the LRA. Always vulnerable to being retired after reaching the age of 60. (JS886/09) [2014] ZALCJHB 357 Kutuma and Others v Limpopo Legislature automatically unfair dismissal as envisaged by s 187(1)(c) of the LRA in that the purpose of the dismissal was to compel him to accept the contract of employment the respondent imposed a restrictions or require him to pay the insurance excess amount should the vehicle be damaged in a collision. ignored the ultimatum and refused to sign the contract. It was unreasonable for the appellant to refuse to accept the respondents offer of employment on the basis of the terms as set out in the contract of employment, was necessary for the respondents business requirements (JA63/11) [2014] ZALAC 6 Solidarity obo Wehncke v Surf4cars (Pty) Ltd Retirement Age (CC) to the effect that a retirement age that was not an agreed retirement age became a normal retirement age when employees had been retiring at that age over a certain long period, so long that it could be said that the norm for employees in that workplace or for employees in a particular category, was to retire at a particular age. No attempt by the respondent to seek her agreement to amend the terms and conditions of her employment. Furthermore, nobody else in the company had ever retired at the age of 65. Rubin Sportswear v SA Clothing and Textile Workers Union and others (2004) 25 ILJ 1671 (LAC) (C956/2013) [2015] ZALCCT 8 Truter v Carecross Health (Pty) Ltd same-sex marriages: maternity leave the court held that there was no reason why an employee in the position of the applicant should not be entitled to maternity leave and equally no reason why such maternity leave should not be for the same duration as the maternity leave to which a natural mother was entitled. (D 312/2012) [2015] ZALCD 20 MIA v State Information Technology Agency (Pty) Ltd Discrimination: Woman JS40/14 Truter v Heat Tech Geysers (Pty) Ltd (JS40/14) [2016] ZALCJHB 83 (2 March 2016) 58]The Respondents evidence in relation to the dismissal was seriously lacking in substance. Most notably, there was no explanation proffered by Mr Venter why Noormohamed or Kabeer did not testify on behalf of the Respondent, or why they could not be subpoenaed to testify. I must accordingly infer that they would not have been able to support the Respondents defence. compensation in the amount of R852 462.00 equivalent to 24 months salary for the automatic unfair dismissal Disclosure regarding promotion JS 532/11 John v Afrox Oxygen Limited (JS 532/11) [2015] ZALCJHB 237 (4 August 2015) Automatically unfair dismissal. Protected disclosure in terms of the Protected Disclosure Act. The employee informing the employer that the re-grading of positions was done irregularly because no consultation was held with the affected employees. Test: dismissal to avoid it section 197 obligations JS752/13 Rahn v Cheil South Africa (Pty) Ltd (JS752/13) [2017] ZALCJHB 319 (5 September 2017) Jabari v Telkom SA (Pty) Ltd (2006) 27 ILJ 1854 (LC) at 1869 where it was held that where the dominant reason for the applicants dismissal in that matter was predicated on the fact that the he had initiated grievance proceedings against the respondent's management, in challenging its unfair labour practices,...the applicant had the constitutional and statutory right to initiate and pursue grievances against the respondent, as long as his actions were motivated by a bona fide belief that the respondent was subjecting him to unfair labour practices. Van der Velde v Business and Design Software (Pty) Ltd and Another (2006) 27 ILJ 1738 (LC). [20] To conclude on this issue, it is accepted that an employee who lodges an internal grievance should enjoy protection under the provisions of section 187 (1) (d) of the LRA. This is because the act of lodging a grievance is merely an assertion of a right not to be treated unfairly, something which is guaranteed under the protection of fair labour practices enshrined in section 23 (1) of the Constitution and section 185 (b) of the LRA. Support for this view as also correctly pointed out on behalf of the applicant is further found in Jabari v Telkom SA (Pty) Ltd[7] where it was held that where the dominant reason for the applicants dismissal in that matter was predicated on the fact that the he had initiated grievance proceedings against the respondent's management, in challenging its unfair labour practices,...the applicant had the constitutional and statutory right to initiate and pursue grievances against the respondent, as long as his actions were motivated by a bona fide belief that the respondent was subjecting him to unfair labour practices.[21] The approach to be followed, (albeit it was formulated within the context of an automatically unfair dismissal based on section 187(1) (g) of the LRA) in establishing whether a dismissal is automatically unfair is that as set out in Van der Velde[8] by Van Niekerk AJ (as he then was) in the following terms;In summary, and in an attempt to crystallise these views and to formulate a test that properly balances employer and worker interests, the legal position when an applicant claims that a dismissal is automatically unfair because the reason for dismissal was a transfer in terms of section 197 or a reason related to it, is this: the applicant must prove the existence of a dismissal and establish that the underlying transaction is one that falls within the ambit of section 197; the applicant must adduce some credible evidence that shows that the dismissal is causally connected to the transfer. This is an objective enquiry, to be conducted by reference to all of the relevant facts and circumstances. The proximity of the dismissal to the date of the transfer is a relevant but not determinative factor in this preliminary enquiry; if the applicant succeeds in discharging these evidentiary burdens, the employer must establish the true reason for dismissal, being a reason that is not automatically unfair; when the employer relies on a fair reason related to its operational requirements (or indeed any other potentially fair reason) as the true reason for dismissal, the Court must apply the two-stage test of factual and legal causation to determine whether the true reason for dismissal was the transfer itself, or a reason related to the employers operational requirements; the test for factual causation is a 'but for' test- would the dismissal have taken place but for the transfer? if the test for factual causation is satisfied, the test for legal causation must be applied. Here, the Court must determine whether the transfer is the main, dominant, proximate or most likely cause of the dismissal. This is an objective enquiry. The employer's motive for the dismissal, and how long before or after the transfer the employee was dismissed, are relevant but not determinative factors. if the reason for dismissal was not the transfer itself (because, for example, it was a dismissal effected in anticipation of a transfer and in response to the requirements of a potential purchaser of the business) the true reason may nonetheless be a reason related to the transfer; to answer this question (whether the reason was related to the transfer) the Court must determine whether the dismissal was used by the employer as a means to avoid its obligations under section 197. (This is an objective test, which requires the Court to evaluate any evidence adduced by the employer that the true reason for dismissal is one related to its operational requirements, and where the employer's motive for the dismissal is only one of the factors that must be considered). if in this sense the employer used the dismissal to avoid it section 197 obligations, then the dismissal was related to the transfer; and if not, the reason for dismissal relates to the employers operational requirements, and Court must apply section 188 read with section 189 to determine the fairness of the dismissal. SeeKroukam v SA Airlink (Pty) Ltd(supra);NUMSA & Others v Driveline Technologies (Pty) Ltd & Another2000 ILJ 142 (LAC) at 152J;Van der Velde v Business Design Software (Pty) Ltd & Anotherat 1745 I; andJabari v Telkom SA (Pty) Ltdat 927A-B. [23] If the applicant succeeds in discharging these evidentiary burdens, the respondent must establish the true reason for dismissal, being a reason that is not automatically unfair. This requirement is in tandem with the principle that in order to ascertain whether a dismissal constitutes an automatically unfair dismissal in terms of s187 of the LRA, one must ascertain the true reason for such a dismissal operational reasons JS596/15 National Union of Metalworkers of South Africa (NUMSA) obo Members v Aveng Trident Steel (A division of Aveng Africa) (Pty) Ltd and Another (JS596/15) [2017] ZALCJHB 513; [2018] 5 BLLR 500 (LC) (13 December 2017) A referral in terms of which the second applicants allege that they were automatically unfairly dismissed. An employee who alleges automatically unfair dismissal is required to produce credible evidence showing that he or she has been subjected to an automatically unfair dismissal. Ordinarily, the employer is the one knowing the reason why it dismissed an employee. In casu, the first respondent states that it dismissed the second applicants for operational reasons. The second applicants on the other hand allege that the true reason for their dismissal is that because they refused to accept a demand of the first respondent for them to accept new contracts, thus automatically unfairly dismissed within the contemplation of section 187(1)(c) as amended. An employee must produce credible evidence showing that he or she has been subjected to an automatically unfair dismissal before an employer is behoved to show that the dismissal is not for a prohibited reason. The amended section 187(1) (c) interpreted and applied. The principles in Frys Metals and Algorax has not gone to waste. Held: (1) The second applicants were not automatically unfairly dismissed. Held: (2) The dismissal of the second applicants is substantively fair. Held: (3) Each party to pay its own costs. s 187 (1) (c) and the explication of its purpose in the Explanatory Memorandum that the application of the section is limited to the collective sphere. ; retirement age and agreed that 70 JS1042/19 Jacobson v VITALAB (JS1042/19) [2019] ZALCJHB 157; (2019) 40 ILJ 2363 (LC) (28 May 2019) [18] Although the pre-amendment version of s 187 (1) (c) was invoked in a number of dismissal disputes concerning individual employees[2], the question that arises consequent on the amendment and the clear statement of its purpose is whether an individual employee may claim the protection afforded by the section.[3][19] It would seem to me from the wording of the amended s 187 (1) (c) and the explication of its purpose in the Explanatory Memorandum that the application of the section is limited to the collective sphere. The Explanatory Memorandum makes clear that the purpose of the amended s 187 (1) (c) is to protect the integrity of the collective bargaining process. It precludes the use of dismissal as a legitimate instrument of coercion in the collective bargaining process.[4] That process, by definition, contemplates concerted action and the participation of more than one employee.[5] For the section to find application therefore, there must have been an employer demand made of two or more employees, they must have refused to accept that demand and they must have been dismissed in consequence of that refusal.[6] The conclusion that s 187 (1) (c) is not intended to apply in individual dismissal disputes is fortified by the wording of the provision itself the reference is to a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer (own emphasis). The use of the plural makes clear that the extent of the prohibition against dismissal applies only where an employer seeks to extract a concession by employees to demands made in a collective context.[20] In the present instance, the respondent does not dispute that there was an employment relationship between the parties, or that it demanded that the applicant sell his shares in Strawberry Bush on the terms set out in the proposed service agreement of 9 July 2018. Even if I accept the applicants contention that the demand is one that concerns a matter of mutual interest (because it is inextricably bound to the employment relationship between the parties, and in particular, an agreement to regulate the applicants continued employment by the respondent)[7] the reason for dismissal is not one contemplated by s 189 (1) (c) since the present dispute does not concern the integrity of collective bargaining, nor does it concern more than one employee. Section 187(1)(d) of the LRA provides that a dismissal is automatically unfair if the reason for the dismissal is that the employee took action, or indicated an intention to take action, against the employer by (i) exercising any right conferred by this Act or (ii) participating in any proceedings in terms of this Act. JA61/2018 DBT Technologies (Pty) Ltd v Garnevska (JA61/2018) [2020] ZALAC 26; [2020] 9 BLLR 881 (LAC); (2020) 41 ILJ 2078 (LAC) (18 May 2020) lodged a formal grievance in terms of the appellants grievance procedure wherein she alleged that she was assaulted by Mailen towards the end of the meeting The appellant then charged the respondent with various counts of misconduct. Following a disciplinary enquiry chaired by a member of the Bar, the respondent was found to have committed gross misconduct for having falsely accused Mailen of assault [10] The Labour Court found that the evidence established a causal nexus between the respondent exercising her rights to institute a grievance and her dismissal. It in effect found that the sine qua non and the proximate or predominant cause of the dismissal was the lodging of the grievance rather than the alleged dishonest or false accusation against Mailen. It accordingly concluded that the respondent's dismissal was automatically unfair as contemplated in section 187(1)(d) of the LRA and ordered the appellant to pay compensation equivalent to nine months remuneration within 30 days and made no order as to costs. The test for determining the true reason is that laid down in SA Chemical Workers Union v Afrox Ltd.[(1999) ILJ 1718 (LAC) See also Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC) para 26 et seq.] The court must determine factual causation by asking whether the dismissal would have occurred if the employee had not taken action against the employer. If the answer is yes, then the dismissal is not automatically unfair. If the answer is no that does not immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether the taking of action against the employer was the main, dominant, proximate or most likely cause of the dismissal. [16] A grievance complaining about a fellow employees conduct, filed in terms of a contractually agreed grievance procedure at first glance does not constitute taking action against an employer, nor ordinarily, does it involve the exercise of any right conferred by the LRA or the participation in any proceeding in terms of the LRA. The LRA does not expressly confer rights upon employees to file grievances. Nor does it establish a mechanism or proceeding for the resolution of grievances filed by employees. The only reference to the processing of grievances in the LRA is found in section 115(3)(b) of the LRA which provides that the CCMA may provide employees, employers and their bargaining agents with advice or training relating to preventing and resolving disputes and employees grievances. Hence, the only right that the LRA confers in relation to employee grievances is the right to approach the CCMA for training. [19] As said, the filing of a grievance about the behaviour of another employee does not amount to taking action against the employer. It is a request by an employee for action to be taken to resolve an internal problem. Nor does it involve the direct exercise of a statutory right against the employer. Section 187(1)(d) of the LRA is not concerned with the filing of a grievance. It is directed rather at situations such as an employee exercising a right to refer a dispute to the CCMA or another governmental agency concerning the employers conduct. A request by an employee to discipline another employee for alleged misconduct does not fall within the ambit of conduct targeted by the provision. dismissal was as a result of the lodging of the grievance with respect to his injury on duty claim. JS 70/2018 James v Namcon Logistics (Pty) Ltd (JS 70/2018) [2020] ZALCJHB 189; (2020) 41 ILJ 2845 (LC) (10 September 2020) [106] I disagree with both parties, read in whole, DBT (DBT Technologies (Pty) Ltd v Mariela GarnevskaJA 61/2018 handed on 18 May 2020. ) does not close the door on a party, simply because they had not lodged a grievance. In considering the characterisation of provisions in section 187(1)(b) of the LRA, the Court found that to an extent that the filing of a grievance about the behaviour of another employee does not amount to taking action against the employer, the employee in that matter had not taken action or intended to take action against the employer. In clarifying the legal principles concerned, the Court stated as follows: As said, the filing of a grievance about the behaviour of another employee does not amount to taking action against the employer. It is a request by an employee for action to be taken to resolve an internal problem. Nor does it involve the direct exercise of a statutory right against the employer. Section 187(1)(d) of the LRA is not concerned with the filing of a grievance. It is directed rather at situations such as an employee exercising a right to refer a dispute to the CCMA or another governmental agency concerning the employers conduct. A request by an employee to discipline another employee for alleged misconduct does not fall within the ambit of conduct targeted by the provision. My emphasis The dismissal of the applicant by the respondent is automatically unfair. dismissal is automatically unfair because it is linked to his grievance JS 522/19 Mkokeli v Bloemberg (JS 522/19) [2021] ZALCJHB 47; (2021) 42 ILJ 1224 (LC) (25 March 2021) [15] This dispute is about the proximate reason for the dismissal of Mkokeli. Aveng...2003 (1) SA 11 (SCA). [30] Determining the reason or the principal reason for a dismissal is a question of fact. As such it is a matter of either direct evidence or of inference from the primary facts established by evidence. The reason for dismissal consists of a set of facts, which operated on the mind of the employer when dismissing an employee. They are within the employers knowledge. The employer knows better than anyone else in the world why it dismissed an employee. [30]...The test for determining the true reason for the dismissal was laid down in Afrox and it is to first determine the factual causation by asking whether the dismissal would have occurred if Mkokeli had not referred an unfair labour practice dispute. If the answer is yes, then the dismissal is not automatically unfair. If the answer is no, that does not immediately render the dismissal automatically unfair, the next issue is one of legal causation, namely whether such refusal was the main, dominant, proximate or most likely cause of the dismissal.[13] [32] The conclusion this Court reaches is that Mkokeli was dismissed for misconduct and the question whether dismissal for that reason is fair or not, is a question falling outside the jurisdiction of this Court. reason for the dismissal is that of having taken an action against the employer by referring a dispute JS 222/19 Hadebe v Media, Information and Communication Brand South Afr (JS 222/19) [2023] ZALCJHB 153 (23 May 2023) The Court’s role is to determine using the causation test, the real, true and proximate reason for the dismissal. If the real reason for the dismissal is that of having taken an action against the employer by referring a dispute, then by law, the dismissal is automatically unfair. However, if the dismissal is for reasons related to conduct, it being a fair reason for dismissal, the dismissal is potentially fair. This Court lacks jurisdiction over dismissal disputes predicated on conduct. [17] Of cardinal importance is that the alleged dismissible offences arose before the exercise of the right of referral. Thus on application of the causation test[4], even if Hadebe did not refer a dispute she was already a candidate for dismissal and the reason for her candidature is that she had made herself guilty of dismissible offences. On application of factual causation, Hadebe would have been dismissed even if she exercised her right of referral. s 187 (1) (c) and retrenchments JA 130/22 National Union of Food Beverage Wine Spirits andAllied Workers v Coca Cola Beverages South Africa (Pty) Ltd (JA 130/22) [2024] ZALAC 26 (27 May 2024) National Union of Metalworkers of SA & others v Aveng Trident Steel (A division of Aveng Africa (Pty) Ltd) & another[2020] ZACC 23; (2021) 42 ILJ 67 (CC) (Aveng Trident).[2020] ZACC 23; (2021) 42 ILJ 67 (CC) (Aveng Trident). [67] A careful analysis of the wording of the section, alongside the explanatory memorandum, demonstrates that the interpretation contended for by NUMSA is incongruous with the section. What that contention boils down to is that an employer considering operational requirements may never resort to retrenchments without contravening the section. This, in my view, would undermine an employer’s right to fair labour practices as entrenched in s 23 (1) of the Constitution, since it would take away its right to resort to retrenchments where operational requirements render them necessary. [30] Put another way, it is not an automatically unfair dismissal for an employer to dismiss an employee who refuses to accept an offer of alternative employment made in the context of a retrenchment process, where the reason for dismissal is the employer’s operational requirements. As the Constitutional Court observed,[8] it does not necessarily follow that, simply because a proposed change to terms and conditions of employment is refused by an employee and a dismissal ensues thereafter, the reason for dismissal is the refusal to accept the proposed change. [31] The sole enquiry under s 187 (1) (c) therefore is into the reason for dismissal and specifically, whether the reason for dismissal was a refusal by the employee to accept a demand made by the employer concerning terms and conditions of employment. On the approach endorsed in the first judgment in the Constitutional Court, the factual and legal causes of the dismissal ought to be determined by asking first whether the dismissal would have occurred had the employees not refused the demand (a ‘but for’ test), and secondly, whether the refusal was the main, dominant or proximate cause of the dismissal.[9] "[32] The application of these principles assumes that a proper factual foundation for the application of s 187 (1) (c) has been laid. An employee claiming to have been dismissed for a reason that is automatically unfair is required to adduce some evidence to establish at least on a prima facie basis that a reason for dismissal that is automatically unfair is the main for dismissal. In Kroukam v SA Airlink (Pty) Ltd[ [2005] ZALAC 5; [2005] 12 BLLR 1172 (LAC) at para 28.] Davis AJA said: ‘In my view, s 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in s 187 for constituting an automatically unfair dismissal.’" automatically unfair within the meaning of section 187(1)(d) and 187(1)(f)[1] of the Labour Relations Act[2] (LRA), and further constituted unfair discrimination in terms of section 6(1) of the Employment Equity Act[3] (EEA). She seeks compensation under section 193(1)(c) of the LRA, and under section 50(2)(a) and 50(2)(b) of the EEA. JS334/2021 Mahomed v Specti Vision Trading CC (JS334/2021) [2024] ZALCJHB 506 (17 December 2024) 32] As a starting point, there can be no dispute that an allegation of sexual harassment is inherently serious[5]. In the Code[6], sexual harassment is defined as ‘unwelcome conduct of a sexual nature that violates the rights of an employee, considering all the factors such as; whether the harassment is on the prohibited grounds of sex and /or gender and/or sexual orientation; whether the sexual conduct was unwelcome; the nature and extent of the sexual conduct; and the impact of the sexual conduct on the employee’. There can further be no doubt that where proven, the consequences of such conduct are dire for both the alleged ‘victim’ and the alleged ‘harasser’. The consequences are even more dire for an employer where it is found that it failed to take any action to address or prevent the conduct from occurring again. [33] It was correctly submitted on behalf of the applicant that for the purposes of liability, the steps of a section 60 of the EEA claim are that; an allegation of a contravention at workplace must have been made and secondly, that it must have been reported immediately. In this case, and regarding the first and second steps, the Court accepts that after the alleged incident on 5 November 2020, the applicant had sent an email to HR, and informed Kahn and Harilal about it. [34] The third step under section 60 of the EEA is whether the alleged contravention was proven. It needs to be said from the onset that there are worrying features of the applicant’s evidence which in my view created doubt as to the credibility, reliability and probabilities of her versions. Against this observation, there can be no doubt that the applicant had on the day of the alleged incident, greeted Mashabela and Masuku in clearly demeaning, belittling and derogatory terms. As to how anyone at the workplace can refer to grown men as ‘boys’, babies, or ‘girls’ is beyond me [43] The fourth and final step relates to whether the applicant had proven that the respondent failed to take the necessary steps. Against the improbabilities of the applicant’s version that she was sexually harassed or assaulted, ordinarily, it would not even be necessary to demonstrate whether the respondent took any steps against the alleged harassers. The Court however appreciates that any form of complaint at the workplace that may constitute or be construed as sexual harassment, deserves the urgent attention of the employer. This is so in that under Item 8 of the Code, the employer is obliged in terms of Section 60 of the EEA to inter alia, to take proactive and remedial steps to prevent all forms of harassment in the workplace. The employer is also obliged to have an attitude of zero-tolerance towards harassment and create and maintain a working environment in which the dignity of employees is respected. [44] In Mokoena and Another v Garden Art (Pty) Ltd and Another[[2007] ZALC 90; [2008] 5 BLLR 428 (LC); (2008) 29 ILJ 1196 (LC)], it was held that the employer became liable in terms of section 60 of the EEA, where the alleged harassment was brought to its attention, and that it however failed to take proper steps to prevent such harassment in the future. The Court further held that where the employer had reacted to employee’s report of sexual harassment by issuing a written warning, and where no further incidents had occurred, the employer was not liable in damages to the employees. [50] It was correctly pointed out on behalf of the respondent in reference to Mokoena and another v Garden Art Ltd and another[8], that an objective assessment must be made of all of the steps taken by the respondent as a whole, to ascertain if they were reasonable to the extent of avoiding liability accruing under section 60 of the EEA. "[78] It is trite that employees cannot use the provisions of section 187(1) of the LRA as a shield against disciplinary processes related to misconduct against them. The Court has made its conclusions regarding the alleged sexual harassment claim and the issue is whether despite the merits of the referral, there was cause to dismiss the applicant. " 1. The applicant’s claims are dismissed. (i) exercising any right conferred by the LRA; and (ii) participating in any proceedings in terms of the LRA. JA47/2023 Nutrichem (Pty) Ltd v Southern African Clothing and Textile Workers Union and Another (JA47/2023) [2025] ZALAC 13 (26 February 2025) [34] Section 187(1)(d) provides that a dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is that the employee took action, or indicated an intention to take action, against the employer by (i) exercising any right conferred by the LRA; and (ii) participating in any proceedings in terms of the LRA. [36] The appellant pleaded that the reason for the dismissal was not the aggressive and unacceptable letter but was due entirely to the respondent’s operational requirements. [66] There were no selection criteria discussed, let alone, agreed upon. No fair or objective criteria was applied. The ineluctable conclusion is that union membership was the only criteria. These factors rendered the dismissals substantively unfair. This finding is of no moment because of my finding that the workers were automatically unfairly dismissed. any other arbitrary ground JR2354/18 Nkosi and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2354/18) [2025] ZALCJHB 123 (25 March 2025) [16] In Naidoo and others v Parliament of the Republic of SA[3] (Naidoo), the Labour Appeal Court dealt with the proper interpretation of sections 6(1), 6(4) and 11 of the Employment Equity Act. The Court observed that the issue was whether the “narrow” or “broad” interpretation of the words “any other arbitrary ground” in section 6(1) of the Employment Equity Act should prevail. The “narrow” interpretation required that the words “any other arbitrary ground” be limited to a ground that is analogous to the grounds that are specifically listed in section 6(1) of the Employment Equity Act, whilst the “broad” interpretation required the words “any other arbitrary ground” to be a stand-alone ground that did not have to be analogous to the specifically listed grounds in section 6(1) of the Employment Equity Act. The Court held that the need to link the grounds that are not specifically listed in section 6(1) of the Employment Equity Act to the specifically listed grounds was the foundation of the line of authority that supports the “narrow” interpretation of the words “any other arbitrary ground”. "17] The Labour Appeal Court held that section 6(1) of the Employment Equity Act was not a catch-all phrase: ‘[24] … The thesis advanced was that the phrase “any other arbitrary ground” had to be saved from redundancy. Thus, it must be understood to add something distinctive to the listed grounds. This thesis assumed the addition of a fresh class of grounds that is amorphous and is knowable simply by the external manifestation of capriciousness. Its broad scope was argued to be desirable. [25] This is a radical idea. It would make s 6(1) a font of a remedy for grievances with virtually no limits. But the EEA is not intended to be a catch all or a panacea. Indeed, the EEA is the instrument of s 9 of the Constitution and therefore its mission is to give teeth to that constitutional guarantee within the scope of the terms expressed in that section. Section 9 is not an all-encompassing injunction, rather its purpose is to give recognition to the value of our humanity and provide a remedy for aggression against us on the grounds of our intimate attributes, whether inherent or adopted. In other words, section 9 has a specific and concrete focus, intelligible within the context of the historical experience of South Africa’s legacy of oppression. The writers, Garbers and Le Roux, rightly caution against being seduced by the idea that anti-discrimination law can be weaponised to solve all labour market ills. Other vicissitudes of life find remedies elsewhere, not least of all in the panoply of protections in Labour Legislation.’ (own emphasis)[4]" "18] The Labour Appeal Court held that the term “any other arbitrary ground” was not meant to be a self-standing ground: ‘[26] The insertion of the word ‘other’ supports the conclusion that the phrase “any other arbitrary ground” was not meant to be a self-standing ground, but rather one that referred back to the specified grounds, so that a ground of a similar kind would fall within the scope of section 6.’" [19] The Labour Appeal Court upheld the narrow compass interpretation of the phrase “any other arbitrary ground”, thus rejecting the broad interpretation of that phrase. Grievance lodged against director JS562/22 Mqikela v Pristo Response Trading (JS562/22) [2025] ZALCJHB 243 (18 June 2025) Alleged unfair treatment and victimization – Non-payment of bonuses and salary adjustments – Failure to address grievance – Unfair labour practice dispute referred to CCMA – Informed of possible retrenchment within 24 hours of referral – Referral of unfair labour practice dispute is main cause of dismissal – Operational requirements defence was a fabrication – Dismissal declared automatically unfair The plaintiff complained about alleged unfair treatment including victimisation, abusive behaviour, favouritism which includes increasing other employees’ salaries except hers, short payment of annual bonuses to the employees who in turn raised complains to her, being sidelined from human resources duties and meetings and the defendant’s alleged failure to pay her “bonus, salary adjustment and incentive bonus”. [10] On 31 January 2022, the plaintiff declared an unfair labour practice dispute and referred it to the Commission for Conciliation, Mediation and Arbitration (CCMA). She recorded that the dispute arose when she enquired about a salary increase and an incentive bonus, and sought that the defendant pay her the increase from 2020 and the incentive bonus per the agreement. "21] The plaintiff has approached this Court claiming automatically unfair dismissal because she was dismissed for exercising her right in terms of section 187(1)(d) of the LRA. This section provides that: ‘(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is – … (d) that the employee took action, or indicated an intention to take action, against the employer by – (i) exercising any right conferred by this Act; or (ii) participating in any proceedings in terms of this Act;’" [22] The right referred to by the plaintiff in this case is her referral of an unfair labour practice dispute to the CCMA, not the grievance[2]. In the present case, there can be no doubt that whilst the plaintiff lodged a grievance in terms of the defendant’s grievance procedure and/or the contract of employment, she also went further and referred a dispute to the CCMA in terms of section 186(2) of the LRA. Therefore, by referring this dispute, the plaintiff exercised her LRA right, which brings the claim squarely within section 187(1)(d). It is irrelevant whether her unfair labour practice dispute has prospects or not, as long as the dispute or claim is not frivolous or vexatious or the referral was not made mala fide. 26] Therefore, based on the test as formulated in Afrox, explicated in Baxter and endorsed in Aveng, the question is whether the plaintiff’s dismissal would have occurred if she had not referred the unfair labour practice dispute to the CCMA. If the dismissal would have occurred, the plaintiff’s claim should fail. If not, the next question is whether the referral of the unfair labour practice dispute was the main, dominant, proximate or most likely cause for the dismissal. If the latter question is answered in the positive, the plaintiff’s claim should succeed. 37] Dismissing an employee for exercising her legal right using a disguised reason amounts to a misrepresentation of the true reason for the dismissal. The employer knows that the true reason is against the law and/or unsustainable and unfair and deliberately manufactures another reason to dismiss the employee Unfair discrimination (see also automatically unfair dismissal) Arbitrary treatment or differentiation between employees not the proceedings were stayed and the dispute was referred to arbitration under the auspices of the CCMA. JS623/07 Chizunza v MTN (Pty) Ltd & Others Arbitrary treatment or differentiation between employees not Other case law cited Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC). JS623/07 Chizunza v MTN (Pty) Ltd & Others Court found employees non-disclosure of pregnancy at a time of application of employment was most likely cause of dismissal dismissal automatically unfair JS844/07 Swart v Greenmachine Horticultural Services (A division of Sterikleen (Pty) Ltd) Onus is listed ground and to establish discrimination and proving was unfair JR2421/04 Matjhabeng Municipality v Mothupi NO and Others HIV Interview health not stated Inhirent job requirements not shown JS 178/09 Allpass v Mooikloof Estates (Pty) Ltd sexual superior (Minett) had spoken to her in a manner which she found sexually objectionable employer had no control over circumstances which could have made conditions intolerable for the employee, and as such the critical circumstances were not of the employers making. Employer had to be culpably responsible JR184/07 Daymon Worldwide SA Inc v CCMA & Others sexual Other case law cited Murray v Minister of Defense [2008] 6 BLLR 513 (SCA), the conduct of the employer must have lacked reasonable and proper cause. JR184/07 Daymon Worldwide SA Inc v CCMA & Others Belief Employees strong convictions against extra marital affairs 187(1)(f) JS278/07 Zabala v Gold Reef City Casino Belief Other case law cited Harksen v Lane & Others 1998 (1) SA 300 (CC) in which the test JS278/07 Zabala v Gold Reef City Casino Unfair discrimination claim failure to promote If black candidates deemed unsuitable, unfair not to have appointed employee JS455/07 Solidarity obo Barnard v South African Police Services As to factual causation, the test As to factual causation, the test was whether the employee would have been dismissed but for his participation in, in this instance, MADAM. Once this was answered in the positive, the second question was whether such participation was the main or dominant, or proximate or most likely, cause of the dismissal (legal causation). C627/07 Jansen v The Minister of Correctional Services of the Republic of South Africa alleged discrimination based on retirement age non-existence of the policy regarding retirement JS600/07 Attonio Lino Menteiro Cosme v Polisak (Pty) Ltd Race discrimination Employment own policy correctly, in that the policy itself stipulated that merit had to be considered in appointments when ratio targets had already been met. JA36/08 University of South Africa v Reynhardt Race discrimination; test Other case law cited Harksen v Lane NO 1997 (4) SA 1 (CC). JA36/08 University of South Africa v Reynhardt Race discrimination; test Other case law cited Minister of Finance and another v Van Heerden 2004 (6) SA 121 (CC), The CC had held that equality was a foundational principle, but remedial measures were needed for its achievement. JA36/08 University of South Africa v Reynhardt Automatically unfair dismissal transsexual damages JS296/09 Ehlers v Bohler Uddeholm Africa (Pty) Ltd Pregnancy Employer responsible to give her access to landlord's workplace D582/08 Memela and Another v Ekhamanzi Springs (Pty) Ltd basis of race affirmative action targets reached Black owner white candidate preferred, discrimination JS 1061/02 Reynhardt v University of South Africa Harassment No liability established in terms 60 of EEA JS700/05 Potgieter v National Commissioner of the South African Police Service & Another Harassment Other case law cited Mokoena & Another v Garden Art Ltd & Another [2008] 5 BLLR 428 (LC) 60 of EEA JS700/05 Potgieter v National Commissioner of the South African Police Service & Another Unfair discrimination dispute; applicant failing to disclose gender reassignment; evidential burden raised possibility that automatic unfair dismissal had taken place JS02/07 Atkins v Datacentrix (Pty) Ltd National and Regional demgrafics had to be taken into account, Discrimination not protected ito section 6(2) EEA C 368/2012 Solidarity v Department of Correctional Services SEXUAL HARASSMENT CA 14/2014 CAMPBELL SCIENTIFIC AFRICA (PTY) LTD Far from not being serious Mr Simmers capitalised on Ms Markides isolation in Botswana to make the unwelcome advances that he did. The fact that his conduct was not physical, that it occurred during the course of one incident and was not persisted with thereafter, did not negate the fact that it constituted sexual harassment and in this regard the Labour Court erred in treating the conduct as simply an unreciprocated sexual advance in which Mr Simmers was only trying his luck SA Broadcasting Corporation Ltd v Grogan NO and Another,[13] Steenkamp AJ (as he then was) observed that sexual harassment by older men in positions of power has become a scourge in the workplace. In Gaga v Anglo Platinum Ltd and Others,[14] this Court noted similarly that the rule against sexual harassment targets, amongst other things, reprehensible expressions of misplaced authority by superiors towards their subordinate SEXUAL HARASSMENT JR855/2012 Doctors Dietrich Voigt Mia trading as Pathcare v Roopa N.O. and Others (JR855/2012) [2016] ZALCJHB 37 (25 January 2016) that he suggested that they should go to the toilet together and, ultimately, when she rejected his advances, he left. Commissioner failed to take cognisance of a pattern of behaviour on the part of the employee where evidence was given of conduct similar to that which the employee was accused of Retirememt age JS710/13 Harris v Ocean Traders International (Pty) Ltd (JS710/13) [2016] ZALCJHB 63 (23 February 2016) It seems rather improbable that the company would have effectively covered all employees for a period of five years beyond the normal retirement age as a matter of course, if most of them were due to retire five years earlier at 60. In my view, the balance of probabilities favour the version that when the applicant was employed, the understanding between him and the respondent was that he would retire at age 65. sixteen months remuneration would be just and equitable compensation. Demotion JR2498/13 Pretorius v G4S Secure Solutions (SA) (Pty) Ltd and Others (JR2498/13) [2015] ZALCJHB 414 (24 November 2015) The commissioner simply accepted the employers prerogative to redeploy the employee at the insistence of Rand Refinery, without considering whether it amounted to a demotion. In so doing, he misconceived the nature of the enquiry Cf Nxele v Chief Deputy Commissioner, Corporate Services, Department of Correctional Services [2008] 12 BLLR 1179 (LAC) para [88] (per Zondo JP); SAPS v Salukazana [2010] 7 BLLR 764 (LC); (2010) 31 ILJ 2465 (LC). insistence of a client, invalid JR2498/13 Pretorius v G4S Secure Solutions (SA) (Pty) Ltd and Others (JR2498/13) [2015] ZALCJHB 414 (24 November 2015) commissioner simply accepted the employers prerogative to redeploy the employee at the insistence of Rand Refinery, without considering whether it amounted to a demotion. In so doing, he misconceived the nature of the enquiry. Mahlamu v CCMA (2011) 32 ILJ 1122 (LC) paras [22] [25]. See also SATAWU obo Dube v Fidelity Supercare Cleaning Services Group (Pty) Ltd [2015] ZALCJHB 129. contracting out of the right not to be unfairly dismissed is not permitted by the Act Disability: mentally able to work, but not facially acceptable JS787/14 Smith v Kit kat Group (Pty) Ltd (JS787/14) [2016] ZALCJHB 362; [2016] 12 BLLR 1239 (LC); (2017) 38 ILJ 483 (LC) (23 September 2016) [70]In all of the above circumstances, the discrimination by the respondent against the applicant would resort comfortably within the realm of what can be described to be unfair discrimination...Awarded: a total period of 30(thirty) months, the applicant is awarded R1 540 199.40 in damages and compensation. Standard Bank of SA v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 1239 (LC). The search for accommodation is a multi-party enquiry. Although the principal responsibility for conducting the enquiry rests with the employer, at the very least the employer must confer with the disabled employee, her trade union or workplace representative. To the extent that the employer needs information that it does not have, such as medical reports, it must also consult with medical or other experts and possibly other employees. Disregarding medical advice to accommodate an employee is discrimination. The process should be interactive, a dialogue, an investigation of alternatives conducted with a give and take attitude. Outright refusal to accommodate shows a degree of inflexibility contrary to the spirit and purpose of the duty to accommodate. Unjustifiable hardship means '[m]ore than mere negligible effort'. Just as the notion of reasonable accommodation imports a proportionality test, so too does the concept of unjustifiable hardship. Some hardship is envisaged. A minor interference or inconvenience does not come close to meeting the threshold but a substantial interference with the rights of others does. Retirement age JS219/15 Bank v Finkelstein t/a Finkelstein and Associates (JS219/15) [2016] ZALCJHB 428 (26 October 2016) [40] In short, and in casu, the terms and conditions of employment specifically applicable to the applicant made no provision for a retirement age. Unilaterally introducing a retirement age in such circumstances would amount to a unilateral change in employment conditions, which is not permitted. The applicant was clear in her evidence that she did not want to retire and could still properly discharge her duties. She certainly, even in 2014, never acquiesced to the application of a specified retirement age to her. If the respondent wanted to change the situation with regard to the retirement age applicable to the applicant, as Finkelstein had in mind in 2014, it needed to negotiate with the applicant to try and secure an agreement.[33] Rubin Sportswear v SA Clothing and Textile Workers Union and Others (2004) 25 ILJ 1671 (LAC) at para 24. retirement age JS171/2014 Lyall v City of Johannesburg (JS171/2014) [2017] ZALCJHB 461 (22 November 2017) [40] The respondent through evidence established that at the time of the retirement of the applicant the respondent had a normal retirement age in place....[58] The applicant has not pleaded any such case. I have already indicated that an employer is at liberty unilaterally to introduce a retirement age and to act in accordance with the retirement age. Of course, the employer cannot make such a retirement age retrospective or apply it in breach of an agreement with an employee. The applicant has not shown any agreement to the contrary. There is no substance in this submission...[44] The applicant was unable to testify as to the date when the parties entered into this agreement. He relied upon events that "built upon themselves" and culminated in an "agreement". sexual harassment: section 60 of the EEA JA105/2015 Liberty Group Limited v M (JA105/2015) [2017] ZALAC 19; (2017) 38 ILJ 1318 (LAC); [2017] 10 BLLR 991 (LAC) (7 March 2017) made unwarranted comments to her, touched her body, massaged her shoulders and stood too close to her. She asked him to stop but he did not...2. The appellant pays to the respondent the sum of R250 000 as damages. See Cooper, C Harassment on the Basis of Sex and Gender: A Form of Unfair Discrimination 2002 ILJ (23) at 1. [32] In treating harassment as a form of unfair discrimination in s 6(3),[4] the EEA recognises that such conduct poses a barrier to the achievement of substantive equality in the workplace by creating an arbitrary barrier to the full and equal enjoyment of an employees rights, violating that persons dignity and limiting their right to equality at work.[5] Matambuye v MEC for Education and Others [2015] ZALCJHB 455 at para 22. the Labour Court noted that it was not required to decide whether s 60 (2) refers to steps the employer must take immediately following a report of harassment and whether subsection (4) refers to reasonable steps that the employer must take in advance to eliminate and prevent acts of unfair discrimination. Biggar v City of Johannesburg, Emergency Management Services [2011] 6 BLLR 577 (LC). the Court found that the employer had failed to take all necessary steps to eliminate racial abuse perpetrated by its employees and to have failed to do everything reasonably practicable to prevent continued harassment. This followed sustained racial harassment of the applicant and his family by co-employees in residential premises provided by the employer. Potgieter v National Commissioner of the SA Police Service and Another (Potgieter ) (2009) 30 ILJ 1322 (LC) at para 46. the requirements for employer liability to arise under the EEA where the complaint raised is one of sexual harassment. These are that:(i) The sexual harassment conduct complained of was committed by another employee.(ii) It was sexual harassment constituting unfair discrimination.(iii) The sexual harassment took place at the workplace.(iv) The alleged sexual harassment was immediately brought to the attention of the employer.(v) The employer was aware of the incident of sexual harassment.(vi) The employer failed to consult all relevant parties, or take the necessary steps to eliminate the conduct will otherwise comply with the provisions of the EEA.(vii) The employer failed to take all reasonable and practical measures to ensure that employees did not act in contravention of the EEA. differentiation on geographical grounds and that it was unfair CA10/2016 Minister of Correctional Services and Others v Duma (CA10/2016) [2017] ZALAC 78 (23 June 2017) [14] It follows therefore that, in this case, respondent was required to show that the conduct complained of clearly amounted to a differentiation on geographical grounds and that it was unfair, on the basis of principles set out in the dictum in Hoffmann, supra; hence the practice was not rational and impaired her dignity. Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd and Others (1998) ILJ 285 (LC) and SA Airways (Pty) Ltd v Janse van Vuuren and Another (2014) 35 ILJ 2774 (LAC) at para 41 discrimination is unfair if it is reprehensible in terms of the societys prevailing norms. Whether society will tolerate the discrimination depends on what the object is of the discrimination and the means used to achieve it. The object must be legitimate and the means proportional and rational Hoffmann v SA Airways (Hoffmann) 2001 (1) SA 1 (CC). At the heart of the prohibition of unfair discrimination is the recognition that under our Constitution all human beings, regardless of their position in society, must be accorded equal dignity. That dignity is impaired when a person is unfairly discriminated against. The determining factor regarding the unfairness of the discrimination is its impact on the person discriminated against. Relevant consideration in this regard include the position of the victim of the discrimination in society, the purpose sought to be achieved by the discrimination, the extent to which the rights or interest of the victim of the discrimination have been affected and whether the discrimination has impaired the human dignity of the victim. Louw v Golden Arrow Bus Services (Pty) Ltd (2000) 21 ILJ 188 (LC). Discrimination on a particular ground means that the ground is the reason for the disparate treatment complained of. The mere existence of disparate treatment of people, for example, different races is not discrimination on the ground of race unless the difference in race is the reason for the disparate treatment. Put differently, for the applicant to prove that the difference in salaries constitutes direct discrimination, he must prove that his salary is less than Mr Benekes salary because of his race. disability in terms of section 187(1)(f) of the LRA JA104/2015 Pharmaco Distribution (Pty) Ltd v W (JA104/2015) [2017] ZALAC 48; (2017) 38 ILJ 2496 (LAC) (4 July 2017) evidence reveals that employer had discriminated against the employee because of her bipolar disorder. "unfairness" JR350/16 Letsogo v Department of Economy and Enterprise Development and Others (JR350/16) [2018] ZALCJHB 48 (9 January 2018) Apollo Tyres SA (Pty) Ltd v CCMA and Others (DA1/11) [2013] ZALAC 3; [2013] 5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (21 February 2013). Du Toit et al: The Labour Relations Act of 1995; 2nd edition at page 443. ... unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended. Harksen v Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC) at para 54 a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of section 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.b) Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:(i) Firstly, does the differentiation amount to discrimination? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.(ii) If the differentiation amounts to discrimination, does it amount to unfair discrimination? If it has been found to have been on a specified ground, then the unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of section 8(2).(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (section 33 of the interim Constitution). social origin or citizenship JS533/16 Khumalo v University of Johannesburg (JS533/16) [2018] ZALCJHB 31 (6 February 2018) valid workvisa/permanent residence of this country to the extent that she was not a South African citizen, and further to the extent that the provisions of clause 10 of the offer of employment had not been complied with, the University was therefore within its rights to invoke the provisions of clause 15 of the offer of employment. Section 11 of the Employment Equity Act. In terms of section 11 of the Employment Equity Act (The EEA), the burden of proof is placed on the employer in every case where unfair discrimination based on the Equity Act is alleged, to establish that the discrimination did not take place or where it did, it was fair differentiation JS744/16 South African Municipal Workers Union and Others v Pikitup Johannesburg (Soc) Ltd (JS744/16) [2017] ZALCJHB 183 (7 February 2017) [6] The relevant legal principles are clear a mere differentiation does not necessarily constitute an act of discrimination. Discrimination occurs when the differentiation has as its basis one of the specified listed grounds referred to in s6, all an unspecified or analogies ground, or an arbitrary ground, referred to in the section. The pleading in a claim such as the present and must necessarily establish the differentiation and the basis on which the claim is made, in other words, a link between the differentiation and a specified an unspecified ground. Where reliance is placed on the latter, it is not sufficient to contend that the policy or practice complained of is arbitrary. The case must necessarily be made is analogous to a specified ground and based upon or shares a common trend with a specified ground and in particular, that it exhibits attributes or characteristics which have the potential to impair the fundamental dignity of the applicants as human beings Ntai v South African Breweries Ltd [2001] 2 BLLR 186 (LC). See also Mangena v Fila South Africa (Pty) Ltd [2009] 12 BLLR 1224 (LC) ground of discrimination JS454/16 Mhlanga v Synergy Global Consulting (Pty) Ltd and Another (JS454/16) [2017] ZALCJHB 113 (31 March 2017) [44]I have already addressed the fact that this is a right provided and enforced by sections 5 and 9 of the LRA respectively. Furthermore, the applicant does not identify an arbitrary ground of the type mentioned in section 6(1) of the EEA as the ground of discrimination. In this regard, I appreciate that the applicant appears to believe that any perceived unfair treatment can be classed as an act of discrimination. However, even harassment under s 6(3) of the EEA is only unfair discrimination if it is on one or more of the grounds listed in s 6(1). the reason for his dismissal was that he was HIV positive or for incapacity JS778/1 N v Sky Services (Pty) Ltd (JS778/15) [2018] ZALCJHB 278; [2019] 5 BLLR 504 (LC) (21 August 2018) [51] In the current case, the applicants case is that he was dismissed because he was HIV positive. His allegation was based on the assumption that his colleague, Mr John Ramotsaletsi, informed the respondents management of his HIV status. Although the applicant submitted proof that he was HIV positive, he could not show that the respondent was aware of his HIV status. IMATU v City of Cape Town [2005] 11 BLLR 1084 (LC). 80. The approach to unfair discrimination to be followed by our courts has been spelt out in Harksen v Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC). Although the Harksen decision concerned a claim under section 9 of the Constitution (the equality clause), there is no reason why the same or a similar approach should not be followed under the EEA. 81. The Harksen approach contains a specific methodology for determining discrimination cases. The first enquiry is whether the provision differentiates between people or categories of people. If so, does the differentiation bear a rational connection to a legitimate governmental purpose? If it does not, then there is a violation of the guarantee of equality. Even if it does bear a rational connection, it might nevertheless amount to discrimination. The second leg of the enquiry asks whether the differentiation amounts to unfair discrimination. This requires a two jurisdiction Wardlaw v Supreme Moulding (Pty) Limited [2007] 6 BLLR 487 (LAC). [23] The significance of sec 191(5)(a) and (b) seems to be this. What is contemplated by the scheme of the Act is that, if the employee has alleged a certain reason as the reason for dismissal and that reason is one that falls within sec 191(5)(b) and the Court does not at any stage think that that reason is not the reason for dismissal, the Court proceeds to adjudicate the dispute and delivers a judgement. Where as a reason for dismissal, the employee has alleged a reason that falls within sec 191(5)(b), the Court provisionally assumes jurisdiction but, if the Court later takes the view or it later becomes apparent to the court that the reason for dismissal is one that falls under sec 191(5)(a), it then declines jurisdiction and follows the sec 158(2)(a) or (b) route. alleging discrimination based on pregnancy (CCMA appeal in terms of s 10(8) of the Employment Equity Act) J698/15 Impala Platinum Ltd v Jonase and Others (J698/15) [2018] ZALCJHB 276 (24 August 2018) Lewis v Media 24 Ltd (2010) 31 ILJ 2416 (LC) paras 36-37. The concept of discrimination is made up of three issues: differential treatment; the listed or analogous grounds; and the basis of, or reason for, the treatment. Once a difference in treatment is based on a listed ground, the difference in treatment becomes discrimination for the purposes of section 9 of the Constitution and section 6 of the EEA.The first issue concerns the difference in treatment. There must be a difference in treatment in which the employee is less favourably treated than others. In some instances, this may require a comparison between the victim and a comparator the so-called similarly situated employee. In other instances, it may be evident that the employee is treated differently from others precisely because of the targeted nature of the treatment, for example sexual harassment or trade union victimisation. had misdirected itself by upholding a case not advanced by the employee CCMA pay differentiation based on race J2680/16 Sasol Chemical Operations (Pty) Ltd v CCMA and Others (J2680/16) [2018] ZALCJHB 433; [2019] 1 BLLR 91 (LC); (2019) 40 ILJ 436 (LC) (29 August 2018) [29] The employee simply failed to present evidence which is sufficient to raise a credible possibility that unfair discrimination based on race had taken place. The Commissioners finding to the contrary is based on the wrong premise and is not connected to the evidence before him. It cannot stand on appeal. Rustenburg Platinum Mine v SAEWA obo Bester and Others (2018) 39 ILJ 1503 (CC); 2018 (8) BCLR 951 (CC); [2018] 8 BLLR 735 (CC) par [46] [47]. [30] If the employer cannot find them suitable alternative employment, the maternity policy kicks in. In this case, there were no suitable alternative positions available for the complainants. And in those circumstances, there was no further duty on the employer to create non-existent positions for them. The employer acted lawfully, rationally and in accordance with its own policy. social origin JS1032/12 Maraba and Others v Tshwane University of Technology (JS1032/12) [2019] ZALCJHB 209 (23 August 2019) [32] It must be emphasized that the applicants are alleging unfair discriminatory grounds which are specified, as contained in section 6 (1) of the EEA as they contend that they were being discriminated against based on their social origin because Ms Kloppers was from a well-resourced institution, the then Pretoria Technikon as they are from previously less disadvantaged institutions which formed the respondent. Further, the applicants are explicitly concerned with the particular position, which is of a Professional Nurse. As stated above, the minute unfair discrimination is alleged based on a specified ground and the employer who is being accused of discrimination has the onus to proof that either no discrimination took place, and/ or such discrimination is justified. [29] Langa CJ, writing for the majority, in City Council of Pretoria v Walker [1998] ZACC 1; 1998 (2) SA 363; 1998 (3) BCLR 257 held that:"This Court has consistently held that differentiation on one of the specified grounds referred to in section 8(2) gives rise to a presumption of unfair discrimination. The presumption which flows from section 8(4) applies to all differentiation on such grounds".[5][30] Moseneke DCJ, in South African Police Service v Solidarity obo Barnard[6], reiterated that:"remedial measures must be implemented in a way that advances the position of people who have suffered discrimination."[31] The Constitutional Court[7] ,by Langa DP writing for the majority, in an unfair discrimination dispute signposted thus,"Courts should however always be astutely to distinguish between genuine attempts to promote and protect equality on the other hand action is calculated to protect pockets of privilege enterprise which amounts to the perpetuation of inequality and this advantage to others on the other handAndThe inclusion of both direct and indirect discrimination within the ambit of the prohibition imposed by section 8 (2) evinces a concern for the consequences rather than the form of conduct."[8] [34] If one were to accept, as argued by the respondent, that the decision to uncap salaries of those who were earning more should be classified as "exceptional circumstances" and that it was for the benefits "for all", this triggers a question of whether those who were earning more "are those people who have suffered discrimination". The answer to this question is no. Therefore, the action that was taken by both the unions and the respondent, which was implemented by the latter, cannot be classified as a justifiable ground of discrimination. Under those circumstances, the respondent unfairly discriminated against the applicants based on remuneration as a result of their social origin because their former institutions were previously based in the historically disadvantaged institutions which were under- resourced, as the respondent failed to present a justifiable ground for its conduct. The respondent's action amounts to "perpetuation of inequality and this advantage to others on the other hand". However, I conclude that discrimination based on race is not founded under the circumstances and the facts of this case. mental impairment and persistently ignored his grievances. JA5/18 Rapoo v Rustenburg Local Municipality (JA5/18) [2020] ZALAC 5; [2020] 6 BLLR 533 (LAC) (20 February 2020 [13]...The appellant has on several occasions produced medical reports saying that he was unfit. The municipality clearly had a problem with his continued absences. However, the municipality has failed to move him to a different unit to report under a different manager for at least six months while he continued his therapy. Clearly the municipality has failed to comply with Code of Good Practices on the Employment of People with Disabilities under the EEA, the Constitution of the Republic of South Africa, International and foreign law as well as best practices.There is no doubt in my mind that the Municipality avoided to deal with the [appellants] mental impairment and persistently ignored his grievances. The approach adopted by the Municipality in dealing with the [appellants] disability, was it itself, a discriminatory practice. I therefore find that the Municipality discriminated against the [appellant]. Arbitrary grounds: A fair reading of these averments reveals that the critical allegation is that a group of persons have been given preferential treatment based on their affinity with Van der Spuy who is a fan of the SAPS: in a word, this is nepotism. CA4/2019 Naidoo and Others v Parliament of the Republic of South Africa (CA4/2019) [2020] ZALAC 38; (2020) 41 (ILJ) 1931 (LAC); [2020] 10 BLLR 1009 (LAC) (7 May 2020) [27] Accordingly, the decision by the Prinsloo J in the Court a quo to apply the narrow compass interpretation of the phrase any other arbitrary ground in section 6(1) is endorsed by this Court. Nepotism, in any case, cannot be countenanced, even more so in the case of Parliament. However this court is required to determine this dispute in terms of the EEA and nepotism is not a necessary affront to human dignity, in neither the sense contemplated by section 9 of the Constitution, nor in section 6 (1) of the EEA. To be neglected because of nepotism implies no characteristic of a person so victimised nor does it invoke any pejorative perspective of such person, whether inherent or adopted. Nepotism differs from, for example racism, where the bearer of authority or of power rejects X because of Xs race and prefers Y because of Ys race. If what Van der Spuy has done is indeed to prefer his chums to the appellants; ie behaved nepotistically, that conduct, however wrongful, is not unfair discrimination within the purview of section 6(1). [20] In the Court a quo, Prinsloo J followed the approach in Harksen v Lane NO and as illustrated in Ndudula v Metrorail. Accordingly, it was held that:[31] . I am inclined to follow, in fact I am bound to follow Pioneer Foods[5] and Metrorail, where the narrow interpretation was accepted. In Metrorail it was effectively held that an arbitrary ground is nothing more and nothing less than a ground analogous to a listed ground, as contemplated in Harksen. The crux of the test for unfair discrimination is the impairment of human dignity or an adverse effect in a comparable, similar manner and not the classification of the ground as listed or unlisted. The distinction between listed and unlisted grounds affects only the burden of proof. Differentiation on both a listed and analogous ground amounts to unfair discrimination only if the differentiation has indeed affected human dignity or has had an adverse effect with a similar serious consequence. Inhirent requirements of the job: Unfair discrimination based on disability CA01/201 City of Cape Town v South African Municipal Workers Unions obo Damons (CA01/2019) [2020] ZALAC 9; (2020) 41 (ILJ) 1893 (LAC); [2020] 9 BLLR 875 (LAC) (18 May 2020) South African Airways (Pty) Ltd v GJJVV [2014] 8 BLLR 748 (LAC) at para 54 The contention on behalf of the appellant that the age of a pilot was an inherent requirement of the work of a pilot was not convincing at all. It is so that if the appellant had established as a fact that there first respondent had been discriminated against on the basis of his age, because age was an inherent requirement of the job of a pilot it might well have discharged its onus, because in terms of s 6 (2) (b) of the EEA it is not unfair discrimination to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job. However, in this case, there was no evidence by the appellant that age was an inherent requirement of the job of a pilot. (my emphasis) [18] These provisions indicate that a disabled employee cannot be discriminated against other employees who do the same work and, to that specific extent that the doctrine of reasonable accommodation applies. A policy must be designed to reduce the impact of the impairment of the persons capacity to fill the essential functions of the job. But in this case, it is not possible for Damons to perform the essential requirements of an active firefighter nor could it possibly be in the public interest to have firefighters who are not capable of dealing with the outbreak of fires which, in the area of jurisdiction of the appellant, are notoriously frequent. 60 of the Employment Equity Act 55 of 1998 (EEA) for discrimination (indirect racial discrimination) perpetrated by a customer against the employee on the grounds of the latters race. CA15/18 Samka v Shoprite Checkers (Pty) Ltd and Others (CA15/18) [2020] ZALAC 11; 2020) 41 (ILJ) 1945 (LAC); [2020] 9 BLLR 916 (LAC) (18 May 2020) Mokoena and another v Garden Art (Pty) Ltd and another [2007] ZALC 90; [2008] 5 BLLR 428 (LC) at para 40 1. The conduct must be by an employee of the employer. 2. The conduct must constitute unfair discrimination. 3. The conduct must take place while at work. 4. The alleged conduct must immediately be brought to the attention of the employer. 5. The employer must be aware of the conduct. 6. There must be a failure by the employer to consult all relevant parties, or to take the necessary steps to eliminate the conduct or otherwise to comply with the EEA, and 7. The employer must show that it did all that was reasonably practicable to ensure that the employee would not act in contravention of the EEA. harassment, victimisation and bullying must relate to one of the listed or other arbitrary grounds CA15/18 Samka v Shoprite Checkers (Pty) Ltd and Others (CA15/18) [2020] ZALAC 11; 2020) 41 (ILJ) 1945 (LAC); [2020] 9 BLLR 916 (LAC) (18 May 2020) 18] Appellant lodged a cross-appeal against this decision. Before the court a quo, appellants counsel argued that the third respondent ought to have found that the first respondent was liable for unfair discrimination on the ground of bullying, harassment and victimisation on the basis that it had been sufficiently proved by the evidence presented by appellant.[19] It appears that the finding that these actions were not based on race was not challenged. Thus the court a quo found that the appellant had not shown that the harassment was based on a listed or other arbitrary ground. Hence she had not shown the presence of unfair discrimination as defined in the EEA. [22] Section 11 of the EEA makes it clear an allegation of that harassment must be coupled to conduct based on a discriminatory ground. This section reads thus:(1) If unfair discrimination is alleged on a ground listed in s 6(1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination (a) did not take place as alleged; or(b) is rational and not unfair; or is otherwise justifiable.(2) If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that (a) the conduct complained of is not rational;(b) the conduct complained of amounts to discrimination; and(c) the discrimination is unfair. [23] There is a burden placed upon the appellant to show, on a balance of probabilities, that the conduct alleged by her was not rational, that it amounts to discrimination and that the discriminatory practice was unfair. An allegation of harassment, even if indeed it can be shown to exist on its own and of itself, cannot and does not meet the requirements as set out in s 6(3) read together with s 11 of the EEA. More is required before an employer such as the first respondent can be held liable in terms of the EEA, where, as in the case brought by appellant, that is based on an arbitrary ground. So much is clear from the wording of s 11(2) of the EEA. [26] In summary, no evidence which the appellant was able to produce discharged the onus that she had been harassed on an arbitrary ground which would bring the first respondents conduct within the scope of the EEA. Furthermore, there was evidence, which was not challenged, that efforts had been made on a number of occasions by management of first respondent to ensure that behaviour of which the appellant complained was dealt with and that the perpetrators were suitably rebuked. This was not a case where management adopted a passive stance to the complaints lodged by appellant. whether differentiation amounts to unfair discrimination requires a two-stage analysis JA117/2018 Mahlangu v Samancor Chrome Ltd (Eastern Chrome Mines) (JA117/2018) [2020] ZALAC 14; [2020] 8 BLLR 749 (LAC); (2020) 41 (ILJ) 1910 (LAC) (18 May 2020) Harksen v Lane NO & others [1997] ZACC 12; 1997 (11) BCLR 1489 (CC); 1998 (1) SA 300 (CC) para 53. (i) Firstly, does the differentiation amount to discrimination? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.(ii) If the differentiation amounts to discrimination, does it amount to unfair discrimination? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. [23] It is apparent from the facts that in its treatment of the appellant, the respondent differentiated between the appellant and other employees. This differentiation arose on the basis of her pregnancy for a second occasion in a three-year cycle. The respondent failed to show that the discrimination was rational and not unfair or was otherwise justifiable. In the circumstances, the conclusion is inescapable that the respondents decision in refusing to place the appellant into alternative employment with effect from 4 June 2014, prior to her unpaid maternity leave scheduled to commence on 29 November 2014, constituted an act of unfair discrimination. age JA 86/18 BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa and Another (JA 86/18) [2020] ZALAC 22; (2020) 41 (ILJ) 1877 (LAC) ; [2020] 11 BLLR 1079 (LAC) (18 May 2020) employees retirement age changed from 65 to 60---Whether employee consented to change ---Employees conduct and unchallenged evidence leading to finding that he did not consent to the change--- evidence indicating that employee never received the election form to indicate whether to retire at age 65 or 60 ---BMW (SA) (Pty) Ltd v NUMSA and Another (2019) 40 ILJ 305 (LAC) distinguished --- Dismissal automatically unfair- on account of age discrimination. [49] Mr Deppe contends that his dismissal was automatically unfair in terms of section 187(1)(f)[7] of the LRA as the reason for the dismissal is that BMW unfairly discriminated against him on the grounds of his age by forcing him to retire at 60 years of age, when his agreed retirement age was 65. [54] The provisions of section 187(2)(b) of the LRA relating to the normal retirement age only apply to the case where there is no agreed retirement age between the employer and the employee. In this case, Mr Deppe was dismissed before reaching his contractually agreed age of retirement which was 65. Therefore, the provisions of section 187(2)(b) of the LRA relating to the question of a normal retirement age have no application.[9] Depression: misconduct or incapacity: most immediate, proximate, decisive or substantial cause of the dismissal CA3/2019 Legal Aid South Africa v Jansen (CA3/2019) [2020] ZALAC 37; (2020) 41 ILJ 2580 (LAC); [2020] 11 BLLR 1103 (LAC) (21 July 2020) [2] Section 187(1)(f) of the LRA provides that a dismissal will be automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee, directly or indirectly, inter alia on grounds of disability and/or an analogous arbitrary ground. Section 6 of the EEA includes a similar prohibition. The respondent maintains that the dominant reason for his dismissal was the fact that he was suffering depression. [41] In the first instance, depression must be looked at as a form of ill health. As such, an incapacitating depression may be a legitimate reason for terminating the employment relationship, provided it is done fairly in accordance with a process akin to that envisaged in Items 10 and 11 of the Code of Good Practice: Dismissal.[8] If an employee is temporarily unable to work for a sustained period due to depression, the employer must investigate and consider alternatives short of dismissal before resorting to dismissal. If the depression is likely to impair performance permanently, the employer must attempt first to reasonably accommodate the employees disability. Dismissal of a depressed employee for incapacity without due regard and application of these principles will be substantively and/or procedurally unfair. [42] Depression may also play a role in an employees misconduct. It is not beyond possibility that depression might, in certain circumstance negate an employees capacity for wrongdoing. An employee may not be liable for misconduct on account of severe depression impacting on his state of mind (cognitive ability) and his will (conative ability) to the extent that he is unable to appreciate the wrongfulness of his conduct and/or is unable to conduct himself in accordance with an appreciation of wrongfulness. Should the evidence support such a conclusion, dismissal for misconduct would be inappropriate and substantively unfair, and the employer would need to approach the difficulty from an incapacity or operational requirements perspective. Alternatively, where the evidence shows that the cognitive and conative capacities of an employee have not been negated by depression, and he is able to appreciate the wrongfulness of his conduct and act accordingly, his culpability or blameworthiness may be diminished by reason of the depression. In which case, the employees depression must be taken into account in determining an appropriate sanction. A failure to properly take account of depression before dismissal for misconduct could possibly result in substantive unfairness. [43] Conative ability is a question of fact and an employee denying conative ability, as the respondent in effect does, bears an evidentiary burden to prove the factual basis of the defence. To hold otherwise would unduly undermine the managerial prerogative of discipline where misconduct is committed by employees suffering all manner of mental difficulties such as depression, anxiety, alcoholism, grief and the like. As explained, the fact that an employee was depressed, anxious, grieving or drunk at the time of the misconduct (but not entirely incapacitated thereby) is most appropriately viewed as a potential mitigating factor diminishing culpability that may render dismissal for misconduct inappropriate or may require an incapacity investigation before dismissal. That much is trite. [46] Accepting thus that the respondent was depressed and had been suffering from depression since 2011, he nonetheless remained reasonably functional and able to carry out his duties throughout most of that period. He was not wholly incapacitated. Moreover, the appellants policy was merely to require employees compelled to take sick leave to advise the appellant of the fact that they would not be reporting for duty. [48] It may well be that but for his depression factually (conditio sine qua non) the respondent might not have committed some of the misconduct; but, still, he has not presented a credible possibility that the dominant or proximate cause of the dismissal was his depression. The mere fact that his depression was a contributing factual cause is not sufficient ground upon which to find that there was an adequate causal link between the respondents depression and his dismissal so as to conclude that depression was the reason for it. The criteria of legal causation, it must be said, are based upon normative value judgments. The overriding consideration in the determination of legal causation is what is fair and just in the given circumstances. One must ask what was the most immediate, proximate, decisive or substantial cause of the dismissal. What most immediately brought about the dismissal? The proximate reason for the respondents dismissal was his four instances of misconduct. It was not his depression, which at best was a contributing or subsidiary causative factor. age JS 740/18 NUMSA obo King and Others v BMW South Africa (Pty) Ltd (JS 740/18; JS 410/17; JS 177/17) [2020] ZALCJHB 115 (11 March 2020) Rockliffe v Mincom (Pty) Ltd[(2007) 28 ILJ 2041 (LC).]. The Court concluded thus: -Clearly the letter says the basis for termination is age. On the face of it unless justified it is automatically unfair (s 187(1) (f)). In my view there is evidence to raise a credible possibility that an automatically unfair dismissal has taken place. [22] For an employer to avoid the consequences of the presumed unfair discrimination, such an employer must show either one of two things, namely; (a) the dismissed employee had reached the normal retirement age or (b) the employer and the employee agreed on a particular age and that age was reached. Cash Paymaster Services (Pty) Ltd[(2006) 27 ILJ 281 (LAC).]:[25] The retirement age dispensation provided for in s 187(2)(b) of the Act is one that works on the basis that, if there is an agreed age between an employer and an employee, that is the retirement age that governs the employees employment. This is the case even when there is a different normal retirement age for employees employed in the capacity in which the employee concerned is employed. The provision relating to the normal retirement age only applies to the case where there is no agreed retirement age between the employer and the employee. [23]...With regard to the instance of onus, the dismissed employees bore the onus to show that age 65 was the agreed age whilst the respondent bore the onus to show that the agreed age was 60...[24] There is no dispute between the parties that when the dismissed employees commenced employment, the agreed age for retirement was 65 years. It is also common cause that during 1995, the retirement age was changed from 65 to 60. The dismissed employees contend that in effecting the change, the employer did not seek nor obtain their consent. It is indeed so that the dismissed employees did not expressly consent to the change Outomatical Unfiar dismissal and Unfir discrimination need to be referred to conciliation JS 740/18 NUMSA obo King and Others v BMW South Africa (Pty) Ltd (JS 740/18; JS 410/17; JS 177/17) [2020] ZALCJHB 115 (11 March 2020) [73] In terms of section 10 (1) of the EEA, disputes about an unfair dismissal are excluded in the chapter. Therefore, a referral of an unfair dismissal dispute does not include a referral of an unfair discrimination dispute. It is by now settled law that this Court lacks jurisdiction to entertain a dispute if same has not been referred to conciliation as required by the EEA. Accordingly, these claims ought to be dismissed for want of jurisdiction. work of the two was work of equal value. JS741/17 Moloko v Tshwane Economic Development Agency (JS741/17) [2020] ZALCJHB 237 (22 October 2020) [18] The next aspect up for consideration is whether the difference in remuneration was rational as contemplated in section 11(2) of the Employment Equity Act. The evidence of Mafela is that it was not rational because there was no basis for it. The only explanation is that they were remunerated on the basis of some percentage based on what they earned from their previous employer. As to what informed the percentage, it is unclear. This piece of evidence is largely hearsay and no one was called to testify in support of such claim. To demonstrate that this explanation cannot hold, a similar complaint by the Executive Managers was attended to without any difficulties. Besides, the fact that it is irrational was long recognized by Mafela and Liebenberg who recommended that his salary be adjusted. In the memorandum dated 7 February 2017 addressed to Magaledi, his only concern was effect on the figures (budget) that will be caused by the adjustment. He desired a calculation in rands and cents which is a prudent thing to do. At no stage did he demonstrate his disapproval based on any factor whatsoever. All the other senior executives to whom the copy was circulated, answered in the positive for an adjustment. differentiation: race irt promotoon of white persons JS803/17 Police and Prisons Rights Union and Others v Minister of Police and Another (JS803/17) [2021] ZALCJHB 41 (1 March 2021) [21] In my view, the applicants compliant does not meet the test in Harksen[11] which clearly states that if differentiation is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. Stated otherwise, the test for unfair discrimination is the impairment of human dignity or an adverse effect in a comparable, similar manner and not the classification of the ground as listed or unlisted.[12] [18] The pivotal enquiry in this regard is the scope of construction phrase any other arbitrary ground in section 6(1) of the EEA. The applicants contend that this phrase must be accorded a wide interpretation on the strength of the dictum in Chitsinde v Sol Plaatje University [[2018] 10 BLLR 1012 (LC) at para 31.] which seemingly endorsed the obiter in Kadiaka v Amalgamated Beverage Industries,[(1999) 20 ILJ 373 (LC)] where the Court endorsed the view that the 2013 EEA amendments introduced a self-standing ground of arbitrariness which meant capriciousness. This approach was rejected for a narrow construction in Pioneer Foods (Pty) Ltd v Workers[(2016) 37 ILJ 2872 (LC).] and Ndudula and Others v Metrorail Prasa (Western Cape).[(2017) 38 ILJ 2565 (LC); see also: Sethole v Dr Kenneth Kaunda District Municipality [2018] 1 BLLR 74 (LC) at paras 72, 84, and 85. ] [19] In Naidoo and Others v Parliament of the Republic of South Africa,[(2020) 41 (ILJ) 1931 (LAC); [2020] 10 BLLR 1009 (LAC) (Naidoo II)] the Labour Appeal Court settled this debate by endorsing a narrow construction and upheld the approach followed by the Court a quo, per Prinsloo J,[See Naidoo and Others v Parliament of the Republic of South Africa [2019] 3 BLLR 291 (LC); (2019) 40 ILJ 864 (LC) (Naidoo I) at para 31] in line with Harksen v Lane NO.[9] The LAC pertinently made the following observations: [19] In Naidoo and Others v Parliament of the Republic of South Africa,[7] the Labour Appeal Court settled this debate by endorsing a narrow construction and upheld the approach followed by the Court a quo, per Prinsloo J,[8] in line with Harksen v Lane NO.[1998 (1) SA 300 (CC).] The LAC pertinently made the following observations:Garbers and Le Roux offer a critique of the broad compass idea and, in great detail, eviscerate the thesis. It is unnecessary to address all of their reasoning to demonstrate a convincing rejection of the broad compass interpretation. The essential point is that the phrase to which meaning must be attributed is any other arbitrary ground and not the word arbitrary, free from its context and function. In this context the word arbitrary is not a synonym for the word capricious. The injunction in section 6(1) is to outlaw, not arbitrariness, but rather to outlaw unfair discrimination that is rooted in another arbitrary ground (the syntax of any other cannot be understood as otherwise than looking back at what has been stipulated in the text that precedes it). Capriciousness, by definition, is bereft of a rationale, but unfair discrimination on a ground must have a rationale, albeit one that is proscribed. The glue that holds the listed grounds together is the grundnorm of Human Dignity. The authors express this view, with which I agree:Discrimination is about infringement of dignity (or a comparably serious harm), about an identifiable and unacceptable ground and about the link directly or indirectly) between that ground and the differentiation. Should a ground not be listed, it should meet the well-established test for unlisted grounds: it must have the potential to impair the fundamental human dignity of a person (or have a comparably serious effect) and has to show a relationship with the listed grounds.[10] (Emphasis added) See Naidoo and Others v Parliament of the Republic of South Africa [2019] 3 BLLR 291 (LC); (2019) 40 ILJ 864 (LC) (Naidoo I) at para 31 I am inclined to follow, in fact I am bound to follow Pioneer Foods and Metrorail, where the narrow interpretation was accepted. In Metrorail it was effectively held that an arbitrary ground is nothing more and nothing less than a ground analogous to a listed ground, as contemplated in Harksen. The crux of the test for unfair discrimination is the impairment of human dignity or an adverse effect in a comparable, similar manner and not the classification of the ground as listed or unlisted. The distinction between listed and unlisted grounds affects only the burden of proof. Differentiation on both a listed and analogous ground amounts to unfair discrimination only if the differentiation has indeed affected human dignity or has had an adverse effect with a similar serious consequence. (emphasis added) Social origin JA110/201 Tshwane University of Technology v Maraba and Others (JA110/2019) [2021] ZALCJHB 56 (17 May 2021) Section 6(1) of the EEA expressly prohibits direct or indirect unfair discrimination against an employee on grounds which include social origin Social origin in international human rights treaties refers to a persons inherited social status, descent-based discrimination by birth and economic and social status.[3] Discrimination on this ground has been defined by the Committee of Experts of the International Labour Organisation (ILO) to include discrimination on the basis of class, caste or socio-occupational category.[4] [14] The test for unfair discrimination set out in Harksen v Lane NO and others[Harksen v Lane NO and Others [1997] ZACC 12; 1997 (11) BCLR 1489; 1998 (1) SA 300 (CC) at para 50.] applies equally to discrimination claims in labour law.[Mbana v Shepstone & Wylie [2015] ZACC 11; 2015 (6) BCLR 693 (CC); (2015) 36 ILJ 1805 (CC) at para 25.] The first step is to establish whether the appellants policy or practice differentiates between people. The second step entails establishing whether that differentiation amounts to discrimination. The third step involves determining whether the discrimination is unfair. If the discrimination is based on any of the listed grounds in section 9 of the Constitution, it is presumed to be unfair.[7] [15] Since the claim of unfair discrimination had been raised by the respondents, the burden of proof in terms of section 11 of the EEA was placed on the appellant, as employer, to show that the discrimination alleged did not take place or that it is justified. This is distinguishable from a claim of discrimination on an arbitrary ground, in which case, in terms of section 11(2), the burden is on the complainants to prove that the conduct complained of is not rational, that it amounts to discrimination and that the discrimination is unfair. There was therefore no evidence that the decision to uncap salaries was applied only to the previously advantaged campus of Pretoria or limited to particular occupations or job grades. [17] Whether there has been differentiation on a specified (or unspecified) ground is a question which must be answered objectively. The evidence placed before the Labour Court showed that the differential treatment that arose from the decision to uncap salaries was not attributable to the respondents social origin. As much was evident from the fact that employees such as Mr Basini, who although employed at a previously disadvantaged campus, enjoyed the benefit of a higher salary after the cap was removed from his salary, despite the geographical location at which he was employed. Sexual Harassment CCT 270/20 McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (CCT 270/20) [2021] ZACC 14 (17 June 2021) [1] Sexual harassment[1] is the most heinous misconduct that plagues a workplace.[2] Although prohibited under the labour laws of this country,[3] it persists. Its persistence and prevalence pose a barrier to the achievement of substantive equality in the workplace and is inimical to the constitutional dream of a society founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms . . . and non-sexism.[4] Not only is it demeaning to the victim,[5] but it undermines their dignity, integrity and self-worth, striking at the root of that persons being.[6] Writing in 1989, in its first reported case of sexual harassment, the erstwhile Industrial Court, sounding the alarm that sexual harassment cannot be tolerated, highlighted that [u]nwanted sexual advances in the employment sphere are not a rare occurrence and it is by no means uncommon.[7] [44]...In Gaga, the Court noted that the victim was placed in the invidious position of being compelled to balance her sexual dignity and integrity with her duty to respect her superior.[60] Indeed, many years ago, the erstwhile Industrial Court also drew attention to the dilemma facing junior employees subjected to sexual harassment. It said:[Sexual harassment] creates an intimidating, hostile and offensive work environment. . . . Inferiors who are subjected to sexual harassment by their superiors in the employment hierarchy are placed in an invidious position. How should they cope with the situation? It is difficult enough for a young girl to deal with advances from a man who is old enough to be her father. When she has to do so in an atmosphere where rejection of advances may lead to dismissal, lost promotions, inadequate pay rises . . . her position is unenviable. Fear of the consequences of complaining to higher authority . . . often compels the victim to suffer in silence.[61] on any other arbitrary ground PA10/2019 Mdunjeni-Ncula v MEC, Department of Health and Another (PA10/2019) [2021] ZALAC 29 (20 September 2021) [13] There has been a considerable debate in the Labour Court with regard to the phrase on any other arbitrary ground; in particular whether arbitrary grounds in s6(1) includes not only the prohibition of discrimination on a ground that undermines human dignity but any ground which has shown to be irrational. In Naidoo and others v Parliament of the Republic of South Africa [2019] 3 BLLR 291 (LC) Prinsloo J, after a careful analysis of the jurisprudence generated in the Labour Court on this question, (see in particular Pioneer Foods (Pty) Ltd v Workers Workers Against Regression & others (2016) 37 ILJ 2872 (LC)) held at para 31 the crux of the test for unfair discrimination is the impairment of human dignity and adverse affecting the comparable similar manner and not the classification of the ground as listed or unlisted. The distinction between listed and unlisted grounds effects only the burden of proof differentiation on both the listed an analogous ground amounts to unfair discrimination only of the differentiation has indeed affected human dignity or has had an adverse effect in a similar serious consequence.[14] It is significant that the EEA provides in terms of s 6(1) for a prohibition of unfair discrimination any other arbitrary grounds By comparison the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) also introduces a concept of analogous grounds which are defined in s 1 of PEPUDA as:(b) any other ground where discrimination based on that other ground (i) causes or perpetuates systemic disadvantages;(ii) undermines human dignity; or(iii) adversely affects the equal enjoyment of a persons rights and freedoms in a serious manner that is comparable to discrimination on one of the listed grounds.[15] It is therefore arguable that the phrase any other arbitrary grounds extends beyond the genus of the listed grounds set out in s 6 (1) of the EEA in that the use of other arbitrary grounds encompasses a broader scope than the specific provisions of analogous grounds in PEPUDA. However, in Harkson v Lane NO [1997] ZACC 12; 1998 (1) SA 300 (CC) at para 46 the Constitutional Court, albeit in the interpretation of the equality provision in terms of s8 of the Interim Constitution (Constitution of the Republic of South Africa Act 200 of 1993), said the following about meaning of discrimination: There will be discrimination on an unspecified ground if it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a comparably serious manner. Although Harkson was decided in terms of s 8 of the Interim Constitution, the courts approach clearly dictates adherence to the narrow approach to the meaning of other arbitrary grounds. It is however not necessary to decide this particular question in the present case. [47] These curious misdirections are particularly unfortunate because this matter relates to sexual harassment in the workplace, perpetrated by a senior medical practitioner who has remained unrepentant for his misconduct with apparent oblivion to the fact that his behaviour constitutes the marrow in the backbone of a culture of sexual harassment that plagues this countrys workplaces. Sexual harassment occurs at the intersection of gender and power, producing a potent stench of subordination, disempowerment and inequality that so seeps through the fabric of our society that it stains its core. Eradicating the scourge of sexual harassment will be a Sisyphean task if its perpetrators are compensated lavishly for their misconduct. pay differentiation JS925/19 Mogopodi v Departmental of Agriculture, Rural Development, Land and Environmental Affairs (JS925/19) [2022] ZALCJHB 52 (21 February 2022) [39].... In view of the two legged enquiry in Harksen, in my view, the differentiation in salary levels is not objectively based on attributes and characteristics that have the potential to impair the human dignity of Mr. Mogopodi and others in his position to affect them adversely in a comparably serious manner. [37] In Pioneer Food (Pty) Ltd v Workers Against Regression (WAR) and others[[2016] 9 BLLR 942 (LC).], this Court held that pay differentiation on the ground of length of service and new appointment does not constitute unfair discrimination as an arbitrary ground. Further, that where the pay difference is contained in a collective agreement, it is not unfair. The Court in Pioneer, the facts of which are on all fours with the present case, stated as follows:[56] Where a collective agreement stipulates different pay levels for employees with different periods of service with the employer concerned, this is not arbitrary differentiation nor is length of service (or being a new employee) an unlisted ground meeting the test just referred to.[57] Differentiation in respect of terms and conditions of employment on the basis of length of service with the employer concerned is, on the contrary, a classic example of a ground for differentiation which is rational and legitimate and, indeed, exceedingly common. That the lawgiver shares the view that this is rational and legitimate is apparent, inter alia, from:57.1 Regulation 7(1)(a) of the Employment Equity Regulations 2014, which includes length of service as one of the factors justifying differentiation in terms and conditions of employment;57.2 Section 198D(2)(a) of the LRA, which includes length of service as a justifiable reason for differential treatment;57.3 Clause 7.3.1 of the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value.[59] Moreover, length of service with the employer concerned as a factor affecting pay levels is not an other arbitrary ground, as contemplated in section 6(1) or in the test laid down by the Constitutional Court. Treating people differently in the workplace in accordance with their length of service with the employer does not impair their fundamental human dignity or affect them adversely in a comparably serious manner. The unlisted ground proffered by the union in its heads of argument did not qualify. That too should have been the end of its case.[61] But even on this broader interpretation, the differentiation between new entrants and longer serving employees is rational, sanctioned by collective agreement, and envisaged by the Code of Good Practice. [Emphasis added]. [27] In Harksen v Lane NO[1997 (11) BCLR 1489 (CC)] the Constitutional Court set out a two-pronged test to determine whether differentiation amounts to unfair discrimination where reliance is placed on the equality provision of the Constitution.[16] The Court stated as follows at paragraph [53]:(a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of section 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.(b) Does the differentiation amount to unfair discrimination? This requires a two stage analysis:(i) Firstly, does the differentiation amount to discrimination? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.(ii) If the differentiation amounts to discrimination, does it amount to unfair discrimination? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of section 8(2).(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (section 33 of the interim Constitution). [25] Item 4 of the Code of Good Practice on Equal Pay/Remuneration for Work of Equal Value[Published under GN in 448 in GG 38837 of 1 June 2015] provides as follows: arbitrary ground. JS 136/16 Police and Prison Civil Rights Unions and Others v National Commissioner of South African Police Service (JS 136/16) [2022] ZALCJHB 73 (22 March 2022) [15] The LAC discussed the applicable principles in matters of this nature, where the claim relates to any other arbitrary ground, in the matter of Naidoo & Others v Parliament of the Republic of SA (2020) 41 ILJ 1931 (LAC) at paras 14, 27, and 28, this matter has been succinctly put and applied by the same Court, in Minister of Justice & Correctional Services & Others v Ramaila & Others (2021) 42 ILJ 339 (LAC)[10], where that Court thus:This Court has recently in Naidoo & others v Parliament of the Republic of SA comprehensively dealt with the construction to be placed on the phrase any other arbitrary ground as set out in 6(1) of the EEA. The fundamental question before the Court in Naidoo was whether a narrow or a broad interpretation of the compass of the phrase any other arbitrary ground should prevail. The distinction suggested, on the one hand, that the compass is limited to a ground which is analogous to the listed grounds, and on the other, posited conduct required to be arbitrary, in the sense of being capricious. This Court, after a careful examination of the jurisprudence of the Constitutional Court decisions of this Court and the Labour Court and some academic writings, endorsed a narrow compass interpretation thereof. It held that the expression was not meant to be a self-standing ground, but rather one that referred back to the specified grounds, so that a ground of a similar kind would fall within the scope of s 6.[11] [21]...Tshwane University of Technology v Maraba & Others (2021) 42 ILJ 1707 (LAC) at paras 14 and 17. Considering the provisions of sections 6(4) and (1) of the EEA, which the Individual Applicants rely on, that arbitrary ground is not a stand-alone as espoused in the Naidoo and Ramaila supra, I am not satisfied that the Individual Applicants have presented a case in support of their claim, instead the SAPS through the affidavits qualifies rationale behind the payment of the Allowance and being supported by what they say is additional eligibility and relaxation requirements. As the LAC in the matter of Ramaila supra concluded thus: is not surprising that the impugned instruments brought about a considerable degree of despondency because it resulted in pay disparity between Mr Ramaila and his comparators. This notwithstanding, as this Court observed in Naidoo supra, not all wrongful conduct is justiciable under s 6(1) of the EEA because there is no self-standing ground of arbitrariness or capriciousness. In summary, whatever the possible adverse consequences caused by the pay progression system, these consequences did not constitute discrimination of a kind that could justify a claim in terms of s6 of the EEA. [22]...and that the intention of introducing the Allowance was to a recruit and keep the necessary scarce skills within the SAPS instead of them being lost to the private sector and other government departments. Consequently, it indicates that there was a justifiability as to why such was done; resultantly, the claim relating to unfair discrimination by the Individual Applicants cannot succeed. Arbitrary: using cannabis JS 633/20;JS926/20 Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd (JS 633/20;JS926/20) [2022] ZALCJHB 142 (1 June 2022) ifferentiation between the applicant and other employees [17] In the case of Harksen v Lane N O and others[[1997] ZACC 12; 1998 (1) SA 300 (CC) at para 46.] the CC set out the test for unfair discrimination under the Interim Constitution[9]. The principles established were captured in the EEA and, due to their importance, it is appropriate to refer to it in full:17.1 Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then theres a violation of s 8(1). Even if it does bear a rational connection, it might nevertheless amount to discrimination.17.2 Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:a) Firstly, does the differentiation amount to discrimination? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whatever, objectively, the ground is based on attributes and characteristics which have the potential to impair their fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.b) If the differentiation amounts to discrimination, does it amount to unfair discrimination? If it has been found to have been on a specified ground, then unfairness will be presumed. If on any unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the effect of the discrimination on the complainant and others in his or her situation.c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provisions can be justified and limited in terms of the limitations clause. [25] The case of Transnet Freight Rail v Transnet Bargaining Council and others[(2011) 32 ILJ 1766 (LC) at para 19.], endorsed the following statement of the learned author, J Grogan, on handling the disease of alcoholism in the workplace:In this regard Grogan states the following in Workplace Law:Employees may be dismissed if they consume alcohol or narcotic drugs to the point that they are rendered unfit to perform their duties. There may, however, be a thin dividing line between cases in which alcohol or drug abuse may properly be treated as misconduct, and those in which it should be treated as a form of incapacity. The Code of Good Practice: Dismissal specifically singles out alcoholism or drug abuse as a form of incapacity that may require counselling and rehabilitation (item 10(3)) ....It is clear, however, that in certain contexts being intoxicated on duty can be treated as a disciplinary offence....Special mention is made (in the Code of Good Conduct: Dismissal) of employees addicted to drugs or alcohol, in which cases the employer is enjoined to consider counselling and rehabilitation. The dividing line between addiction and mere drunkenness is sometimes blurred. An employee who reports for duty under the influence of alcohol or drugs may be charged with misconduct. Whether such an employee should be considered for counselling or rehabilitation depends on the facts of each case. These steps are generally considered unnecessary if employees deny that they are addicted to drugs or alcohol, or that they were under the influence at the time. Rehabilitative steps need not be undertaken at the employer's expense, unless provision is made for them in a medical aid scheme. [Own emphasis] [27] The General Safety Regulation 2A of the Occupational Health and Safety Act[GNR 1031 of 30 May 1986: General safety regulations.], requires that an employer may not allow any person who is or who appears to be under the influence of an intoxicating substance, to be allowed access to the workplace. Neither may an employer allow any person to have intoxicating substances in his or her possession in the workplace. Whilst the general and practical theory of intoxication can be defined as the negative behaviour and impaired physical effects caused by consumption of alcohol, drugs or substances, the legal theory on the other hand is different. Alcohol/drug intoxication is defined legally according to a person's blood alcohol/substance level which can only be determined through testing be it urine, breathalyser or blood samples. [31] The point is, the fact that one is not impaired to perform duties does not in itself absolve that employee from misconduct in terms of the employers policy. The Applicant tested positive for cannabis and continues to test positive as a result of her repeated and daily consumption of cannabis. She will undeniably continue to test positive. The Applicants performance had not been affected by her actions but the Respondents issue was not one of performance. As discussed above, the issue was more properly classified as one of misconduct and her performance is an irrelevant factor. It is pertinent to note that on the day in question, the Applicants performance was indeed affected by her actions, namely, she was unfit to render her services to the Respondent and was immediately instructed to leave the premises of the Respondent or had to be sent home. [35] The Applicant presented no proper medical evidence. As such, her evidence regarding her medical condition and how the use of cannabis can possibly serve to treat it or provide her with relief is unsubstantiated, and in essence, requires this Court to accept her word as layperson on such a complex medical issue, or even to speculate. This is not permissible. was perhaps some kind of differentiation [46] Even if it can be said that in applying the policy to the Applicant there was perhaps some kind of differentiation because of her purported pleaded medical condition, the Applicant will still fail in establishing discrimination. In this regard, the Court in Sethole and others v Dr Kenneth Kaunda District Municipality[20] the Court summarized the position as follows: only specific kinds of differentiation would be impermissible. This would be differentiation that is irrational, or arbitrary, or based on what the Court called a naked preference, or served no legitimate purpose. Differentiation that cannot be shown to fall within one of these categories would be permissible differentiation, the discrimination enquiry would be at an end there and then, and the discrimination claim must fail.As is clear from what I have discussed above, the conduct meted out to the Applicant by the Respondent was rational and served a legitimate purpose. There was no naked preference established. Hence there can be no discrimination. Retirement age JA68/2021 Motor Industry Staff Association and Another v Great South Autobody CC t/a Great South Panel Beaters (JA68/2021) [2022] ZALAC 103 (27 September 2022) Interpretation - section 187(2)(b) of the LRA: Properly construed it affords an employer the right to fairly dismiss an employee based on age, at any time after the employee has reached his or her agreed or normal retirement age. This right accrues to both the employee and the employer immediately after the employees retirement date and can be exercised at any time after this date. [16]...On a proper construction of section 187(2)(b) read in the context of the LRA, it is impermissible for an employer to invoke the defence in section 187(2)(b) where the real reason for the dismissal is based on operational requirements or misconduct or incapacity. For example, if the most proximate cause of the dismissal is proven to be one based on operational requirements and not age, as contemplated in section 187(2)(b), then it will be open to the Labour Court to, inter alia, order the employer to pay the employee severance pay. [26] The approach adopted by the Labour Court in Schweitzer v Waco Distributors (A Division of Voltex (Pty) Ltd)[14] to determine whether a dismissal in terms of section 187(2)(b) of the LRA is fair remains good law. There the Court held that for a dismissal in terms of section 187(2)(b) of the LRA to be fair, the following three conditions must be present: (a) the dismissal must be based on age; (b) the employer must have an agreed or normal retirement age for employees employed in the capacity of the employee concerned; and (c) the employee must have reached the normal or agreed retirement age.[15] Pay differences JS28/2016 Mkhatshwa v Shanduka Coal (PTY) Ltd (JS28/2016) [2022] ZALCJHB 177 (6 July 2022) [24] It well accepted that that a bald claim that a distinction in remuneration constitutes an unfair discrimination is inadequatefor the onus to shift to the employer to prove that the discrimination was fair.[See: Mangena and others v Fila SA (Pty) Ltd and others [2009] 12 BLLR 1224 (LC) (Mangena) at para 7; South African Municipal Workers Union and another v Nelson Mandela Bay Municipality (SAMWU) [2016] 2 BLLR 202 (LC) at paras 25-26.] In South African Municipal Workers Union and another v Nelson Mandela Bay Municipality,[8] it was held that:In this case the disparate treatment would occur if it is established that the employer treated the complaining employee less favourably on the basis of sex or gender by placing her on a lower remuneration scale for performing the same or similar work as her male comparators. It was not controverted that the assistant directors in the Human Settlement Directorate are performing the same or similar work, some with added responsibilities. It was also not in dispute that there are salary disparities amongst these directors. What remains for the employee to demonstrate is that there is a causal nexus between the differentiation on the basis of her gender or sex and the treatment accorded to her in respect of the grading of her post and the concomitant remuneration. In other words, that being female was a sine qua non for the less remuneration she earned (Emphasis added)[25] By parity of reasoning, the applicant in the present case failed to demonstrate that his race was a sine qua non for being paid less than his white comparators. Retirement age C 148/18; JS 49/18; JS 67/18 JS 68/18; JS 338/18; JS 195/18 Solidarity obo Strydom & 5 Others v State Information Technology Agency SOC Ltd (C 148/18; JS 49/18; JS 67/18 JS 68/18; JS 338/18; JS 195/18) [2022] ZALCJHB 237 (12 August 2022) [4] Nonetheless, I must reiterate that it is inconceivable that the applicants hoped to successfully rely on both the normal retirement age and agreed retirement age as these notions that are mutually exclusive. As stated in Rubin Sportswear v SA Clothing and Textile Workers Union and Others,[(2004) 25 ILJ 1671 (LAC) at para 24; see also Bank v Finkelstein t/a Finkelstein and Associates (JS219/15) [2016] ZALCJHB 428 (26 October 2016) at para 25.] section 187(1)(b) creates two bases upon which an employer can justify the dismissal of an employee on grounds of retirement age; the one is an agreed retirement age and the other is normal retirement age.[Cash Paymaster Services (Pty) Ltd v Browne (2010) 31 ILJ 1325 (LC) at para 21.] name had been removed from the shortlist because of his speech impediment J2311/14 General Industries Workers Union of South Africa and Another v African Explosives Limited (J2311/14) [2022] ZALCJHB 234 (18 August 2022) [17] In all the circumstances, I am satisfied that due to the serious speech impediment, Mr Tshaya was not in a position to perform the essential requirements of the position of a Technologist, which is to communicate effectively with all stakeholders and particularly, the external stakeholders, who constitute suppliers and end users of the explosive products that are manufactured by AEL. Accordingly, the applicants failed to make out a case to sustain a claim of unfair discrimination in terms of section 6(1) of the EEA. Retirement age JA68/2021 Motor Industry Staff Association and Another v Great South Autobody CC t/a Great South Panel Beaters (JA68/2021) [2022] ZALAC 103 (27 September 2022) Interpretation - section 187(2)(b) of the LRA: Properly construed it affords an employer the right to fairly dismiss an employee based on age, at any time after the employee has reached his or her agreed or normal retirement age. This right accrues to both the employee and the employer immediately after the employees retirement date and can be exercised at any time after this date. [16]...On a proper construction of section 187(2)(b) read in the context of the LRA, it is impermissible for an employer to invoke the defence in section 187(2)(b) where the real reason for the dismissal is based on operational requirements or misconduct or incapacity. For example, if the most proximate cause of the dismissal is proven to be one based on operational requirements and not age, as contemplated in section 187(2)(b), then it will be open to the Labour Court to, inter alia, order the employer to pay the employee severance pay. [26] The approach adopted by the Labour Court in Schweitzer v Waco Distributors (A Division of Voltex (Pty) Ltd)[14] to determine whether a dismissal in terms of section 187(2)(b) of the LRA is fair remains good law. There the Court held that for a dismissal in terms of section 187(2)(b) of the LRA to be fair, the following three conditions must be present: (a) the dismissal must be based on age; (b) the employer must have an agreed or normal retirement age for employees employed in the capacity of the employee concerned; and (c) the employee must have reached the normal or agreed retirement age.[15] allegations of racial abuse suffered at the instance of her direct subordinates, and the alleged failure by the respondents to protect and defend her dignity. JS1030/17 Solidarity obo Oosthuizen v South African Police Service and Others (JS1030/17) [2023] ZALCJHB 4; [2023] 3 BLLR 258 (LC) (10 January 2023) [36] In the circumstances, it is absolutely clear that Col. Oosthuizen was racially harassed by WOs Tikoe and Mphana which was motivated by insubordination and animus. The respondents’ submission that Solidarity failed to prove that there was discrimination is untenable as the racial harassment complained of is based on a listed ground in terms of section 6(1) of the EEA. Furthermore, it is not their case that the overtly offensive conduct of WOs Tikoe and Mphana was fair. "[37] In SAMKA v Shoprite Checkers (Pty) Ltd and Others[6] the Labour Appeal Court (LAC) endorsed the following requirements for the application of section 60 of EEA set out in Mokoena and another v Garden Art (Pty) Ltd and another[7] : ‘40.1 The conduct must be by an employee of the employer. 40.2 The conduct must constitute unfair discrimination… 40.3 The conduct must take place while at work. 40.4 The alleged conduct must immediately be brought to the attention of the employer. 40.5 The employer must be aware of the conduct. 40.6 There must be a failure by the employer to consult all relevant parties, or to take the necessary steps to eliminate the conduct or otherwise to comply with the EEA, and 40.7 The employer must show that it did all that was reasonably practicable to ensure that the employee would not act in contravention of the EEA.’" "[38] It is worth mentioning that these requirements were recently codified in terms of the Code of Good Practice on the Prevention and Elimination of Harassment[8] which came into effect on 18 March 2022. Instructively, clause 10.3 provides that: ‘Failure to take adequate steps to eliminate harassment once an allegation of harassment by an employee has been submitted within a reasonable time, will render the employer vicariously liable for the conduct of the employee in terms of section 60 of the EEA. This is the case even if the harassment consists of a single incident.’" [52] In all the circumstances, I am satisfied that for a period of about a year, Col. Oosthuizen was disparaged and humiliated by the racial harassment that was perpetrated by the two WOs with impunity. SAPS is therefore vicariously liable for the actionable racial harassment. In my view, the compensation equivalent to R300 000 is just and equitable. Moreover, SAPS shall tender a written apology to Col. Oosthuizen for the indignity she had suffered. religion and belief JS1019/16 Sayiti v Sun International Management Limited (JS1019/16) [2023] ZALCJHB 104 (17 January 2023) a member of the Seventh-day Adventist Church. It is a practice of this religion that its followers strictly observe the Sabbath. "6. Prohibition of unfair discrimination (1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground. (2) It is not unfair discrimination to – (a) take affirmative action measures consistent with the purposes of this Act; or (b) distinguish, exclude or prefer any person on the basis of an inherent requirement of the job.’" [33] As quoted above, the EEA provides that distinguishing, excluding or preferring any person in the workplace on the basis of an inherent requirement of the job does not constitute unfair discrimination. "[35] The Court in TFD Network[] went on to state as follows in paragraphs [37] and [38]: ‘[37] The test for whether a requirement is inherent or inescapable in the performance of the job is essentially a proportionality enquiry. Considering the exceptional nature of the defence, the requirement must be strictly construed. A mere legitimate commercial rationale will not be enough. In general, the requirement must be rationally connected to the performance of the job. This means that the requirement should have been adopted in a genuine and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose and must be reasonably necessary to the accomplishment of that purpose." "[38] However, even if that is shown, the enquiry does not end there. In addition, the employer bears the burden of proving that it is impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty. In SA Clothing and Textile Workers Union and Others v Berg River Textiles – A Division of Seardel Group Trading Pty, [(2012) 33 ILJ 972 (LC) at para 38.6] the Labour Court correctly and succinctly put it as follows: “In particular, the employer must establish that it has taken reasonable steps to accommodate the employees’ religious convictions. Ultimately the principle of proportionality must be applied. Thus an employer may not insist on the employee obeying a workplace rule where that refusal would have little or no consequence to the business.”" "[38] It is common cause that Mr. Sayiti’s contract did not state that it was an inherent requirement of the job of Market Manager to work over weekends. It is also common cause that pursuant to his dismissal, the job description of the position of Market Manager contained weekend work as an inherent requirement. [39] Having raised the defence of an inherent requirement of the job, the respondent bears the onus to prove that the discrimination is fair, by demonstrating firstly, that weekend work is rationally connected to the performance of the job and secondly, that it is impossible to accommodate Mr. Sayiti without imposing undue hardship on its operations.[23]" [40]...The requirement of weekend work is not rationally connected to the performance of the job. In the premises, I do not find that weekend work is an inherent requirement of the job. The defence therefore fails on the first leg. There is therefore, no need to canvass the second leg, i.e. that it was impossible to reasonably accommodate Mr. Sayiti without causing undue hardship on the operations of the respondent. [43] There was no basis to bring Mr. Sayiti before an incapacity hearing for poor performance. There is simply no evidence of any poor performance. Mr. Sayiti was dismissed pursuant to the incapacity hearing and refusing to accept a lower position that still obliged him to work on weekends against his religious convictions. There is therefore a causal connection between his religious convictions and his dismissal. But for his religious convictions, Mr. Sayiti would not have been dismissed.[26] In the circumstances, the true reason for his dismissal is premised on his religious convictions and constitutes unfair discrimination on the basis of religion and belief. I have already mentioned that the respondent failed to prove that the discrimination was fair. In view of the afore-going, I find that the dismissal of Mr. Sayiti is automatically unfair. Discrimination – Pay – Racial grounds – Recruitment process included considering a candidate’s employment history, whether with the organisation or not, and the salary that the candidate was earning at the time – Applicants not establishing discrimination on grounds of race JS 618/19 SACCAWU obo Mabaso and Others v Masstores (Pty) Ltd t/a Makro (JS 618/19) [2023] ZALCJHB 49 (9 March 2023) [21] It is not enough for the Applicants to merely allege that the Comparator earned more because of race. Something more is required to prove discrimination. The unequal treatment must be based on attributes and characteristics attaching to a person before it can fall within the meaning of "discrimination". The Applicants did not establish discrimination on grounds of race. The Respondent proved that the Applicants were remunerated in terms of the relevant legal prescripts which justified their comparators’ higher salary. I cannot therefore find that there was discrimination. Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code) J1952/2017 La Foy v Department of Justice and Constitutional Development and Others (J1952/2017) [2023] ZALCJHB 127 (2 May 2023) "[12] The term harassment has not been afforded any technical meaning in the EEA. However, section 54 of the EEA avails discretionary powers to the Minister as advised by the Commission for Employment Equity (CEE) to issue any code of good practice. On 18 March 2022, the Minister exercising his discretionary powers issued a Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code)[4]. In terms of the Code, harassment is generally understood to be (a) unwanted conduct, which impairs dignity; (b) which creates a hostile or intimidating work environment for employees or has the effect of inducing submission by actual or threatened adverse consequences; and (c) is related to the listed or arbitrary grounds. In order for a hostile work environment to be present, the conduct related to arbitrary grounds, in this specific case, impacts on the dignity of an employee. " [13] That conduct ought to have a negative impact on the employee’s ability to work and or personal well-being. Such conduct may arise from peers or superiors. Harassment may be direct or indirect. It is indirect if it has the effect of undermining dignity. There are various types of harassment, and they include (i) ostracizing, boycotting, or excluding the employee from work or work-related activities; (ii) use of disciplinary or administrative sanctions without objective cause, explanation, or efforts to problem solving; (iii) demotion without justification; (iv) abuse, or selective use of, disciplinary proceedings; (v) pressurizing an employee to engage in illegal activities or not exercise legal rights; and (vi) pressurizing an employee to resign. [14] Counsel for the Department Mr. M Gwala SC appearing with Ms. M Lekoane placed heavy reliance on the decision of this Court per Acting Justice Kroon in Tshazibane v Montego Pet Nutrition and others (Montego).[5] Sadly, Montego is, in my view, distinguishable. It dealt with a review of an arbitration award. Additionally, it dealt with section 6 (1) of the EEA as opposed to section 6 (3). The views expressed by the erudite Acting Justice are applicable at the end of the trial as opposed to the stage of absolution from the instance. Mr. Gwala SC forcefully submitted that because La Foy does not rely on any of the specified grounds, she was required to tender evidence that demonstrates the attributes of or is analogous to the specified grounds. In his submission, La Foy did not, simply because on the question from the bench, La Foy testified that she does not know the reason why she was subjected to the conduct she laboriously testified about. "[15] To my mind, the fact that an employee does not know the reason for a particular conduct does not suggest that no recognizable ground of an arbitrary nature may be deciphered by a Court hearing a case of unfair discrimination predicated on arbitrary grounds. At this stage of the proceedings, it is not the task of this Court, in my view, to fully interpret the particular conduct against the barometer of arbitrariness. However, given the meaning of the word arbitrariness, anyone treated whimsically has reason to believe that his or her dignity is impaired. By way of an example, La Foy testified that as a DDG, she was made to report to her junior and she felt humiliated thereby. For the purposes of the present application, such testimony is enough to find that the conduct, unless justified, is pejorative. Comparably to be subjected to racial discrimination is conduct that impairs a dignity of a person. Equally, a pejorative treatment affects one’s dignity and it is humiliating in nature. " [16] To sum it up, in order for an employee to succeed, he or she must show any type of harassment as outlined above and also show that the said harassment happened for the listed or whimsical grounds. Most importantly, if reliance is placed on hostile work environment, an impairment of dignity must be demonstrated. Additionally, section 11 (2) of the EEA burdens an employee relying on arbitrary grounds to prove (a) that the conduct is not rational; (b) it amounts to discrimination, as in differentiation; and (c) that the differentiation is unfair. Having said that, this summed up test applies to success in the claim and is not an applicable test at this stage of the proceedings. Unfairness is not dependent on the say-so of a party, but it calls upon the Court to pass a value judgment based on the conspectus of the evidence placed before it. At this stage it is impossible for a Court to pass such a value judgment. However, La Foy had ad nauseam lamented unfairness in her testimony. If the trial were to be terminated at this stage this Court may find such unfairness[6] as testified to by La Foy, that being the applicable test. [17] La Foy testified at length and was equally cross-examined at length. For the purposes of the present application, her true evidence is that she has been subjected to (a) ostracizing in a form of not being capacitated. She asked for resources and same were not provided; (b) she has been excluded from work related activities – when she was excluded from international travels related to her branch; (c) she was subjected to selective discipline and to disciplinary and administrative sanctions without an objective cause – when she was placed on precautionary transfer, which had the effect of her functions been taken away (an equivalent of demotion) and when she was ‘bombarded’ with disciplinary steps. She, on countless occasions, testified that she felt humiliated and victimized by such conducts. On countless occasions she testified that she considered the conduct to be unfair to her. At the tail end of her testimony, the Court asked her as to what, in her mind, accounts for the actions she testified about and she retorted “I don’t know”. Reasonably considered this evidence at this stage of the proceedings suggests irrationality and erraticism. In a rather pronounced manner she testified that the Deputy Minister was improperly interfering with operational matters of the department, in a manner suggestive of abuse of power. When reasonably considered the above evidence relates to the elements of the claim launched by La Foy[7]. Sexual harassment: sections 60(1) and (2) of the EEA, a disciplinary action against the perpetrator constitutes an appropriate step to prevent re-occurrence of sexual harassment as required by section 60(2) of EEA. JS597/21 A.K v Right to Care NPC (JS597/21) [2023] ZALCJHB 182 (5 June 2023) "[28] In Liberty Group Ltd v M[(2017) 38 ILJ 1318 (LAC) at para 38.] (Liberty), the Labour Appeal Court (LAC) endorsed the requirements for employer liability in terms of section 60 where the discriminatory conduct complained of is one of sexual harassment outlined in Potgieter v National Commissioner of the SA Police Service and another[4] that: (i) The sexual harassment conduct complained of was committed by another employee. (ii) It was sexual harassment constituting unfair discrimination. (iii) The sexual harassment took place at the workplace. (iv) The alleged sexual harassment was immediately brought to the attention of the employer. (v) The employer was aware of the incident of sexual harassment. (vi) The employer failed to consult all relevant parties, or take the necessary steps to eliminate the conduct will otherwise comply with the provisions of the EEA. (vii) The employer failed to take all reasonable and practical measures to ensure that employees did not act in contravention of the EEA." [29] Notably, section 60 creates a statutory vicarious liability for employers for a conduct of an employee, while at work, that contravenes any provision of the EEA. Therefore, the issues for determination are three. First, whether the alleged sexual harassment had been immediately reported to the respondent. Second, upon being notified of the discriminatory conduct, the next enquiry turns on whether the respondent took necessary steps to eliminate the alleged discriminatory conduct in consultation with the relevant parties. Third, to escape vicarious liability, the respondent must show that it did all reasonably possible to create an environment that is free from sexual harassment. [35] It follows that when confronted with an allegation of sexual harassment, which is the most heinous misconduct that plagues a workplace[8], the context and merits of each case would have to be taken into consideration. I accept that the delay of 10 months in reporting the first incident is not insignificant. I, however, accept the applicant’s explanation that she thought Mr Molele would stop after she had confronted him and he apologised. The second incident was reported within two months from the date of the incident, which, in my view, is not unreasonable. [49] In all the circumstances, I am satisfied that the respondent did not contravene section 60 of the EEA. As such, the applicant’s claim stands to be dismissed. unfairly discriminated against him on the ground of a disability JS 602/19 Gugwini v National Consumer Commissioner (JS 602/19) [2023] ZALCJHB 175 (6 June 2023) [26] The letter of 31 October 2018 clearly set out the reasons for the termination of the Applicant’s services. It was in the main because the Applicant’s experience was not in line with the inherent requirements of the ICT position and because he could not discharge the duties of ICT manager successfully, given the specialised job and the organisational requirements and because of the Applicant’s refusal to consider alternative work at a lower position. [45] The Respondent pleaded that the Applicant’s dismissal was fair because the ability to read and to write was an inherent requirement of the position of senior researcher as well as that of ICT manager. Those were core responsibilities of the said positions and after being declared legally blind, the Applicant could not perform the key responsibilities required in the said positions. The Applicant was not fit to perform the core responsibilities of the position of senior researcher and ICT manager and he rejected another junior, but alternative position. The Respondent disputed discrimination against the Applicant. [76] This Court has empathy for the Applicant and his unfortunate plight, but in deciding the issues relating to discrimination and automatically unfair dismissal, the law must be applied dispassionately, with the focus on the relevant legal questions and the applicable principles. "[75] Before setting out the reasons why the Applicant’s case must fail, I have to emphasize that the approach followed, had been guided by the following dicta of the Constitutional Court in Adams Damon v City of Cape Town[[2022] 7 BLLR 585 (CC) at paras 109 – 110.] (Damon): ‘[109] … At the outset, it is necessary to caution against ad misericordiam (appeal to pity) reasoning that attempts to persuade solely by evoking legally irrelevant feelings of sympathy. In this case, that type of reasoning would have us fixate on the fact that the applicant sustained the injury that led to his permanent disability while at work. Yet, that fact is entirely irrelevant to the legal question that is dispositive of this appeal, namely: does the Policy discriminate unfairly against the applicant? [110] Although it is tempting to have regard to the circumstances surrounding the applicant’s injury, which are emotionally compelling, they are not logically connected to the central issue in the case, namely the alleged unfair discrimination brought about by the Policy’s inherent requirement for the job of senior firefighter. One understandably empathises with the applicant’s unfortunate plight and its cause, and of course, the law must be responsive to social realities. It does not exist in a vacuum. However, the law must also balance various interests, which may at times compete, and it must be applied dispassionately and in a sustainable fashion.’ " "[80] In Damon, the Constitutional Court dealt with a matter where the applicant was unable to fulfil the normal operational duties associated with the position he had occupied, due to his disability. There was no prospect that the applicant could be rehabilitated from his disability, as it was permanent in nature and he was unable to resume normal, operational duty in the future. The Constitutional Court held that[5]: ‘The genesis of section 6(2)(b) is Article 1(2) of Convention 111, which lays the basis for the defence of an inherent requirement not amounting to discrimination. The CRPD does not mention the concept of the inherent requirement of a job. An inherent requirement of the job is usually impervious – a complete defence – to a claim for unfair discrimination. Of course, the requirement must be genuine. Once a requirement is determined to be inherent, then as a matter of law, it is not unfair discrimination for an employer to insist on employees meeting the requirement. An employer who proves that a requirement is inherent is protected against a claim of discrimination and therefore cannot be compelled to waive or excuse an inherent requirement to accommodate a person with disability.’" "85] In Damon, the majority held that[6]: ‘[135] The principle that physical fitness is an inherent requirement for the post of senior firefighter plays a crucial role in this case. Inherent requirements of the job refer to elements of a job that are essential to its outcome and part of its core activities. In TDF Network Africa, in dealing with whether a requirement is inherent or inescapable in the performance of a job, it was held that – “the requirement must be rationally connected to the performance of the job. This means that the requirement should have been adopted in a genuine and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose and must be reasonably necessary to the accomplishment of that purpose.” … [140] The Code endorses the principle that “employers must reasonably accommodate the needs of persons with disabilities” and that “the aim of the accommodation is to reduce the impact of the impairment of the person’s capacity to fulfil the essential functions of the job”. The Code lists various forms of reasonable accommodations that are all aimed at enabling an employee with disabilities to do the job that they are employed to do. In other words, they are aimed at placing the employee with disabilities on an equal footing with employees without disabilities as far as the operational requirements and performance of the job are concerned. The obligation to reasonably accommodate thus applies if such reasonable accommodation will make it possible for the employee to fulfil the inherent requirements of the job. Accommodation beyond this would cease to be reasonable, because it would effectively require an employer to employ someone who cannot possibly perform the inherent requirements of the job. [141] In this case, it is common cause that the applicant cannot meet the inherent requirements of the job of a senior firefighter. It is also not contested that no amount of reasonable accommodation will enable the applicant to meet the inherent requirement of physical fitness for a senior firefighter. Section 6(2)(a) would not avail the applicant since, at most, it would require the respondent to reasonably accommodate him. In the present instance, once the respondent has successfully raised the defense that physical fitness is an inherent requirement of the post of a senior firefighter, the question of reasonable accommodation falls away. [142] If the first judgment’s understanding of section 6(2) were to prevail, employers would effectively be required to reasonably accommodate employees who cannot meet the inherent requirements of the job to which they seek appointment. Or worse, it would place an obligation on employers to create new positions in order to accommodate employees who did not meet the inherent requirements of a different job altogether. This is plainly incompatible with the very nature and purpose of reasonable accommodation, which is to enable an employee with disabilities to perform in accordance with the inherent requirements of the job. [143] In my view, the first judgment’s approach subverts the careful balance which the EEA strikes between, on the one hand, respecting the legitimate operational prerogatives and needs of employers, and, on the other hand, ensuring that employers take steps to ensure equitable access to the workplace...’" "Disability and incapacity [91] In Standard Bank of SA v Commission for Conciliation, Mediation and Arbitration and Others[7] (Standard Bank), the Court held that: ‘Disability is not synonymous with incapacity. Under Canadian law adjudicators may not find a person incapable unless they are satisfied that the needs of the person cannot be accommodated except with undue hardship. An employee is incapacitated if the employer cannot accommodate her or if she refuses an offer of reasonable accommodation. Dismissing an employee who is incapacitated in those circumstances is fair but dismissing an employee who is disabled but not incapacitated is unfair.’ [92] Put differently: the LRA recognises three grounds on which a termination of employment might be legitimate; namely the conduct of the employee, the capacity of the employee and the operational requirements of the employer’s business. Dismissing an employee who is incapacitated and who cannot perform his or her normal duties, whose prognoses are poor and whose working conditions cannot be adapted or alternative work is not available and who cannot be accommodated, is not unfair. Dismissing a disabled employee who is not incapacitated, is unfair, and if the main or dominant reason for dismissal is the employee’s disability as opposed to incapacity, such dismissal will be automatically unfair." "[94] What is an employer expected to do if an employee is incapacitated? This was considered in Standard Bank, and the Court held that the LRA guidelines for incapacity dismissal contemplate a four-stage enquiry before an employer effect a fair dismissal:[8] ‘[72] Stage one: The employer must enquire into whether or not the employee with a disability is able to perform her work. If the employee is able to work, that is end of the enquiry; the employer must restore her to her former position or one substantially similar to it. Where possible, the job should correspond to the employee's own choice and take account of her individual suitability for it. If the employee is unable to perform her work and her injuries are long term or permanent, then the next three stages follow. [73] Stage two: The employer must enquire into extent to which the employee is able to perform her work. This is a factual enquiry to establish the effect that her disability has on her performing her work. The employer may require medical or other expert advice to answer this question. [74] Stage three: The employer must enquire into the extent to which it can adapt the employee's work circumstances to accommodate the disability. If it is not possible to adapt the employee's work circumstances, the employer must enquire into the extent to which it can adapt the employee's duties. Adapting the employee's work circumstances takes preference over adapting the employee's duties because the employer should, as far as possible, reinstate the employee. [75] During this stage, the employer must consider alternatives short of dismissal. The employer has to take into account relevant factors including 'the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement' for the employee. [76] Stage four: If no adaptation is possible, the employer must enquire if any suitable work is available.’" [100] The Applicant’s complaint, that instead of trying to assist him in his position as senior researcher, the Respondent offered him alternative positions, has no merit. It was made clear in Standard Bank that if no adaptation is possible, the employer must enquire if any suitable work is available. [107] Thus: the Applicant has to produce sufficient evidence to raise a credible possibility that his dismissal amounted to differential treatment on the ground of his disability. If that possibility is established, the Respondent needs to produce sufficient evidence to rebut the possibility or to show a fair justification for the differential treatment. "[110] The Applicant bears the onus to show that he was indeed discriminated against for reasons relating to his disability and he has to show that his dismissal was causally connected to his disability. The Applicant has to discharge these evidentiary burdens. " "[111]...The question is this: would the dismissal have occurred if there was no disability? [112] In my view, the answer to this question is no. This however does not render the dismissal automatically unfair as the next issue to be considered is one of legal causation. The question is whether the Applicant’s disability was the main or dominant cause of his dismissal. The mere fact that the Applicant’s disability was a factual cause is not sufficient to find that there was an adequate causal link between the Applicant’s disability and his dismissal to conclude that his disability was the reason for it." [118] The Applicant has not produced adequate evidence to prove that the treatment accorded to him in any way differed from the treatment accorded to other employees or that the reason for his dismissal was his disability. Age: 'agreed' and 'normal' retirement age JR 2644/18 Valla v South African Broadcasting Corporation SOC Ltd and Another (JR 2644/18) [2023] ZALCJHB 232 (19 July 2023) Dismissal – Automatically unfair – Employee remained on fixed-term contract until expiry – Resolution had converted contract into permanency and amended the agreed retirement age from 60 to 63 – Termination of her employment was a dismissal – Dismissed was based solely on her age, which was not the agreed retirement age of 63, making her dismissal automatically unfair – Her dismissal constituted unfair discrimination on the ground of age in terms of section 6(1) of the Employment Equity Act 55 of 1998 – Labour Relations Act 66 of 1995, s 187(1)(f). "[51] In Arb Electrical Wholesalers (Pty) Ltd v Hibbert[[2015] 11 BLLR 1081 (LAC); [2015] ZALAC 34 at paras 17 – 18.] (Arb Electrical), the LAC found that if there is no agreed age, the termination of the employment contract could be automatically unfair. When determining what was meant by ‘agreed retirement age’, the Court in Bester v State Information Technology Agency (SOC) Ltd[6] (Bester) stated that, when you have an agreed retirement age, like any other contractual term, there must be a “meeting of the minds”. The Court further stated that it doesn't matter what the employee alleges was the retirement age, that is agreed or normal; the onus is not on them to prove the fairness or unfairness of their dismissal. The Court stated that: ‘…It is SITA which seeks to fend off a claim of automatically unfair dismissal and not Bester. Section 192 provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal and if the existence of the dismissal is established, the employer must prove that the dismissal is fair… Once he [Bester] established dismissal, which he did, in these proceedings he must rest and where necessary rebut whatever SITA presents as a justification for his dismissal.’[7]" [59] As the Court enunciated recently in Bester, only the normal retirement age must be considered if there is no agreed age. In the current matter, the Policy is a contractual term of the employment contract, making the retirement age an agreed age which was changed at the employer's behest through a resolution that Ms Valla accepted. Since the agreed age was 63, the only conclusion that can be arrived at is that Ms Valla was dismissed based solely on her age, which was not the agreed retirement age, thereby making her dismissal automatically unfair. Age: when the applicant was employed she had already passed the retirement age. JS 1040/20 Seokwane v Bidvest Prestige Cleaning Services (Pty) Ltd (JS 1040/20) [2023] ZALCJHB 313 (8 November 2023) [12] The applicant was employed on a 3-year eventuality contract from July 2019. She earned R4 860.40 monthly. She was dismissed unfairly based on her age on 31 June 2020 and received an amount equivalent to her remuneration for July and half of August 2020. She sought compensation. The respondent submitted that the applicant was employed because it allowed itself to be persuaded by VW to employ her. The respondent overlooked its policy and employed the applicant in order to please VW, its client. It had no regard of the impact of its conduct on the applicant, a vulnerable employee. When employing the applicant, the respondent was aware that her circumstances were different. It did nothing to warn her. It instead gave her the standard contract in terms of which she would be employed for a period of 3 years. The direct result of the respondent’s conduct was that the applicant was given a month’s notice of her retirement. The conduct is in conflict with fair retirement of employees which gives employees fair notice of retirement. The retirement age is either contained in the contract of employment or is known by employers and employees in the capacity the employee is employed in. The knowledge gives employees enough time to prepare for their retirement. The manner in which the respondent retired the applicant denied her opportunity. The applicant’s dismissal is not justified by section 187 (2) (b) of the LRA. It is just and equitable in all the circumstances of this case to award the applicant compensation equivalent to remuneration she would have earned over a period of 12 months at her rate of remuneration on dismissal. Exception to pleedings: “any other arbitrary ground” was not meant to be a self-standing ground, but rather one that referred back to the specified grounds...‘Discrimination is about infringement of dignity (or a comparably serious harm) about an identifiable and unacceptable ground and about the link directly or indirectly between that ground and the differentiation. JS 257/2022 Mkalipi v Minister of Labour and Employment NO and Another (JS 257/2022) [2023] ZALCJHB 251 (25 August 2023) [17] Discrimination, in all its multifacetedness, is intractably linked to our checkered past as a nation. Our anti-discrimination posture is rooted in our Constitution through which we resolved to take that posture which also led to the legislative framework that basically outlaws unfair discrimination in any shape or form. For these reasons, when the issue of discrimination in general and unfair discrimination in particular arises, we always go back to our Constitution which undergirds our legislative framework that regulates all issues of discrimination and outlaws unfair discrimination. "[18] The Constitutional Court had occasion to deal with the notoriously complicated and at times, nuanced issue of discrimination and the examination that must go into it. In Harksen [Harksen v Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC) at 324 – 325 para 54.], Goldstone J, writing for the majority, explained the enquiry that must go into the determination of an issue of discrimination. That was in the context of section 8 of the interim Constitution, the forerunner to the current Constitution. He said: “At the cost of repetition, it may be as well to tabulate the stages of enquiry which become necessary where an attack is made on a provision in reliance on s 8 of the interim Constitution. They are: (a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not, then there is a violation of s 8 (1). Even if it does bear a rational connection, it might nevertheless amount to discrimination. (b) Does the differentiation amount to unfair discrimination? This requires a two-stage analysis: (i) Firstly, does the differentiation amount to ‘discrimination’. If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. (ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, then unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of section 8 (2). (c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (s33 of the interim Constitution).”" "[19] It will be observed that the EEA was the legislation envisaged in section 9 (4) of the Constitution. In 2013 the EEA was amended to make provision for “any other arbitrary ground” at the end of the grounds original listed in section 6 (1) of the EEA. Recently the Labour Appeal Court had occasion to express itself on this amendment in Naidoo 2[Naidoo and Others v Parliament of the Republic of South Africa (2020) 41 ILJ 1931 (LAC); [2020] 10 BLLR 1009 (LAC) paras 25-26..]. It said: “In Chitside v Sol Plaatjie University [2018] 10 BLLR 1012 (LC), the issue was whether it was an act of unfair discrimination that only one candidate in a series of job interviews was required to write a test. The case failed on the facts. However, at [31] of that judgment, the Court endorsed the view that the 2013 amendments introduced a self-standing ground of arbitrariness and, as in Kadiaka, this meant capriciousness. As I understand the judgment these remarks were obiter. Regrettably that court paid very little attention to the jurisprudence of the Constitutional Court with regard to section 9 of the Constitution which is also the source of section 6 of the EEA which is predicated, as already noted, on the basis that the prohibited grounds are all designed to protect the dignity of an affected person. That is the starting point of any enquiry regarding discrimination. This conclusion is reinforced by the ‘words’ any other arbitrary ground. The insertion of the word ‘other’ supports the conclusion that the phrase “any other arbitrary ground” was not meant to be a self-standing ground, but rather one that referred back to the specified grounds, so that a ground of a similar kind would fall within the scope of section 6. None of these important considerations were taken into account by the Court. In addition, the Court, ostensibly, did not have the benefit of the views of Garbers and Le Roux to which I now turn in some detail. Garbers and Le Roux offer a critique of the broad compass idea and, in great detail, eviscerate the thesis. It is unnecessary to address all of their reasoning to demonstrate a convincing rejection of the broad compass interpretation. The essential point is that the phrase to which meaning must be attributed is “… any other arbitrary ground” and not the word “arbitrary”, free from its context and function. In this context the word “arbitrary” is not a synonym for the word “capricious”. The injunction in section 6 (1) is to outlaw, not “arbitrariness”, but rather to outlaw unfair discrimination that is rooted in “another” arbitrary ground (the syntax of “… any other …” cannot be understood as otherwise than looking back at what has been stipulated in the text that preceds it). Capriciousness, by definition, is bereft of a rationale, but unfair discrimination on a “ground” must have a rationale, albeit one that is proscribed. The glue that holds the listed grounds together is the grundnorm of Human Dignity. The authors express this view, with which I agree: ‘Discrimination is about infringement of dignity (or a comparably serious harm) about an identifiable and unacceptable ground and about the link directly or indirectly between that ground and the differentiation. Should a ground not be listed, it should meet the well-established test for unlisted grounds: it must have the potential to impair the fundamental human dignity of a person (or have a comparably serious effect) and has to show a relationship with the listed grounds.’”" [21] He points out that this reflects the assessment placed by their employer on the value brought by Mr Ndebele to the post of Chief Director. His remaining placed at a lower level and on a lower notch has the effect on how his colleagues and junior employees whom he manages might regard him. This, he submits, is not only arbitrary and an unjustifiable under-evaluation of the value he brings to his post but is in fact a continuing affront to his dignity as a human being as it impairs his fundamental human dignity in a comparably serious manner. This is because the value he brings to the post is viewed as being less than that of Mr Ndebele by their employer for no justifiable operational and employment reason. "[25] The debate about unfair discrimination on an unlisted ground which is considered to be what the additional ground of unfair discrimination ̶ unfair discrimination “on any other arbitrary ground”, has taken various forms and has been raging for a while now. I do not think that the dust has settled yet on that debate and in fact it does not look like it is about to settle anytime soon. This is hardly suprising regard being had to our nervousness, justifiably so, whenever two human beings are, for no apparent reason, treated differently and the harm that may do to human dignity. This is in part because in some ways when people complain of unfair discrimination, they are not always able to say that the unfair discrimination that they experience in the workplace for instance, is attributable to their race, colour or culture or any of the other listed grounds. Therefore, even to say that, as it has been said in some cases, unfair discrimination on an arbitrary ground must be on a ground similar to the listed grounds or one or some of them, does attract some degree of controversy in my respectful view. It therefore needs to be carefully assessed on the facts of that particular case. [26] This is because the listed grounds are tied to our past discriminatory history. To then say that unfair discrimination on an arbitrary ground must mean unfair discrimination on a ground analogous to the listed ones could unintentionally create a closed or exhaustive list of grounds of unfair discrimination on arbitrary grounds by confining unfair discrimination to something analogous or similar to one or some of the listed ones depending on whatever ones’ idea of that means. It seems to me that the legislature realized that unfair discrimination may not always be on any of the listed grounds hence adding the additional ground of unfair discrimination on any other arbitrary ground, thus opening up for a complainant to plead her or his case and lead evidence of the alleged unfair discrimination." "[27] In Naidoo 1[Naidoo and Others v Parliament of the Republic of South Africa [2019] 3 BLLR 291 (LC); (2019) 40 ILJ 864 (LC) para 30-31.] Prinsloo J had this to say: “In my view the correct approach is to accept the narrow interpretation and I say so for a number of reasons. Firstly, I am inclined to follow, in fact I am bound to follow Pioneer Foods and Metrorail, where the narrow interpretation was accepted. In Metrorail it was effectively held that an arbitrary ground is nothing more and nothing less than a ground analogous to a listed ground, as contemplated in Harksen. The crux of the test for unfair discrimination is the impairment of human dignity or an adverse effect in a comparable, similar manner and not the classification of the ground as listed or unlisted. The distinction between listed and unlisted grounds affects only the burden of proof. Differentiation on both a listed and analogous ground amounts to unfair discrimination only if the differentiation has indeed affected human dignity or has had an adverse effect in a similar serious consequence.”" harassment: Code of Good Practice on Prevention and Elimination of Harassment in the Workplace J1952/2017 La Foy v Department of Justice and Constitutional Development and Others (J1952/2017) [2023] ZALCJHB 253 (8 September 2023) harassment as a form of unfair discrimination based on arbitrary grounds. The applicant failed to discharge her statutory onus. Unfair discrimination not established. Managerial functions and activities do not amount to workplace harassment. Decayed relationship with political heads incapable of amounting to harassment. Individual acts of harassment are not ongoing in nature. Each act or omission is subjected to the time frame provided for in the EEA. Failure to refer each act or omission to the statutory bodies for conciliation or mediation timeously impacts on the jurisdictional powers of the Labour Court. Where an act or omission amounts to an unfair labour practice as defined in the Labour Relations Act, the remedy lies in the LRA. The provisions of the LRA cannot be bypassed in order to build a case under the EEA. The inquiry into the alleged harassment conduct, although viewed from the perspective of the harassed employee, remains an objective one, regard being had to its impact on the dignitas of the persona. Held: (1) The claim for unfair discrimination is dismissed. Held: (2) There is no order as to costs. [17] As indicated at the dawn of this judgment, the key legal question in this dispute is whether La Foy was subjected to unfair discrimination that is prohibited on any arbitrary grounds. In order to answer that key question, this Court must consider whether the litany of complaints hoisted by La Foy constitutes harassment within the meaning of section 6 (3) of the EEA. Justice contends that La Foy failed to show that there was harassment within the meaning of the section. La Foy contends to the contrary. Once a finding is made that any of the alleged acts constitute harassment, the next question is whether that harassment amounts to unfair discrimination that is prohibited on the ground (arbitrary) pleaded by La Foy. Owing to the above permutation of the issues, the first issue to be tackled is to define what harassment means. [18] In section 6 (3) of the EEA, the legislature only informs us that harassment is a form of unfair discrimination. However, that form of unfair discrimination has not been afforded any particular meaning. In an instance where the legislature has not provided any technical meaning to a word, Courts often resort to the grammatical meaning of the word. The grammatical meaning of the word is aggressive pressure or intimidation. To harass means to trouble by repeated attacks. Given the wide grammatical meaning of the word, it became apparent that some legal definition of the term is required. Section 54 (1) (a) of the EEA empowers the Minister of Labour and Employment to issue any code of good practice intended to provide employers with information that may assist them in implementing the EEA. On or about 16 March 2022, the Minister published a Code of Good Practice on Prevention and Elimination of Harassment in the Workplace (Code)[6]. It was in this Code that an acknowledgement was made that the EEA does not define the term harassment. "In clause 4 of the Code, the following is stated: ‘4. WHAT IS HARASSMENT...4.6 Hostile work environment...The Code sets out the types of harassment." "[24] Given the grammatical meaning of the word harassment, it is relatively easy for an employee to deliberately avoid the useful and necessary distinction between the exercise of managerial powers and harassment. For example, a lethargic employee may consider certain work instructions to amount to harassment.[Maphanga v Department of Justice and Constitutional Development (Maphanga) [2023] ZALCJHB 69; [2023] 6 BLLR 530 (LC).] In Maphanga v Department of Justice and Constitutional Development[12], this Court had the following to say: ‘The purpose of the [EEA] is to eliminate unfair discrimination… In law harassment refers to a person acting in a manner that causes the complainant to fear harm. Harm refers to any mental, psychological, physical or economic harm. Based on this definition, it cannot be said that if a superior issues a work instruction, such superior is acting in such a manner that will cause the junior to fear harm. It follows that based on his own testimony Maphanga was not harassed. All what his superior did, as he should in a work environment, was to issue an instruction. The fact that Maphanga ebulliently held a view that the instruction was unlawful does not morph the instruction into a harassment.’ [Own emphasis]" "[25] Thus, in my view, care must be exercised when complaints of work-related harassment are considered by a Court or forum. A Court must be alive to the idiosyncrasies and over-sensitivities of individual employees. Courts and dispute resolution fora with commendable distinction dealt with similar situations in cases of alleged constructive dismissals. A similar approach as adopted in cases of constructive dismissal is warranted in matters of this nature, particularly where arbitrariness is alleged as a ground. A feeling of being demeaned and or humiliated is one that is subjective in nature. A feeling that a work environment is intimidating or hostile is bound to be a subjective one. It is for that reason that the objectivity of the conduct is viewed from the subjective perspective of an employee. 64 years ago, the erudite Schreiner AJ had the following to say in R v AMCA Services Ltd and another[1959 (4) SA 207 (A) at 212H-I] (AMCA): ‘The first test to consider is that which is generally regarded as the most important for the purpose of deciding whether a person is a servant at common law, namely, whether the employer (using that word in a colourless sense) has the right to control, not only the end to be achieved by the other’s labour and general lines to be followed, but the detailed manner in which the work is to be performed.’ [Own emphasis]" "[26] The sentiments expressed in AMCA received an imprimatur from my departed brother Webster J in Pretorius v Minister van Handel en Nywerheid[[2005] JOL 14393 (T).] (Pretorius). In this matter, Mr. Pretorius, a public servant approached the High Court to seek an interdict against the Director-General of the Department of Trade and Industry. He claimed that the Director General and officials in the department were harassing and victimizing him by subjecting him to investigations and questioning in respect of a grievance he lodged against the department. Amongst the complaints raised by Pretorius were (a) leave application was turned down; (b) protest against participation in the instructions to raid; (c) failure to hold a disciplinary enquiry within one month of suspension; (d) failure to disclose the name of an investigation official; (e) annual leave of five days was refused; and (f) he was subjected to criminal investigations. Having considered each of the complaints, the learned Webster J dismissed the application with costs. Before reaching his conclusion and having placed reliance on AMCA and Smit v Workmen’s Compensation Commissioner[15], Webster J stated the following: ‘It is clear from the above that the services of the applicant are subject to supervision, direction, control and interference by the respondent. The applicant has no right to the relief he seeks.’[16]" "[27] Strikingly similar to the Pretorius matter are some of the complaints raised by La Foy before me. I am in agreement with the sentiments expressed by Webster J. The Court of Appeal of the Kwazulu Natal Division sitting in Pietermaritzburg, in the matter of Mnyandu v Padayachi (Mnyandu)[[2016] ZAKZPHC 78; [2016] 4 All SA 110 (KZP).] had an occasion to consider the meaning of the word ‘harassment’ as employed in the PHA. In Mnyandu, the issue involved the sending of an email containing allegations which were not true. The Court of Appeal concluded that harassment must be repetitive, oppressive or overwhelmingly oppressive if it is a single act and must be unreasonable in nature. Moodley J, writing for the Appeal Court, reached the following findings, which felicitously resonate with this Court in the present matter: ‘In my view the conduct of the appellant in sending the email may have been unreasonable, as she allowed her emotions to cloud her perceptions, but I am not persuaded that her conduct was objectively oppressive or had the gravity to constitute harassment.’[18]" [29] In full agreement with Raulinga J, this Court takes a view that La Foy may have been offended; unhappy or saddened by the actions of the Department officials as testified to by her, however applying the objective test and also considering that the actions occurred in a work environment, it cannot be said that La Foy was harassed within the meaning of unfair discrimination contemplated in the EEA. [32] This Court shares the sentiments expressed in both Canadian cases. Objectively judged, the complaints raised by La Foy amount to unpleasant consequences of the exercise of management functions. Unpleasant as they may have been to La Foy, they do not cause any demonstrable harm for them to cumulatively amount to a harassment that amounts to an unfair discrimination. Having defined what harassment means, I now turn to the issue of onus. [33] In law, onus means the burden of proof which requires the accuser to prove the case against the accused. In casu, La Foy bore the burden to prove that Justice unfairly discriminated against her. For prohibition, La Foy places reliance on the ground of arbitrariness. Section 11 (2) of the EEA provides that if unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities that – (a) the conduct complained of is not rational; (b) the conduct complained of amounts to discrimination; and (c) the discrimination is unfair. Absent proof of any one of the above leads to the complainant failing in his or her claim. I must state, the burden placed on La Foy is undoubtedly an onerous and heavy one. As a point of departure, a behaviour is said to be irrational if it is not based on logical reasons or clear thinking. Differently put, it is conduct that is foolish, idiotic and downright stupid. It is a prima facie unreasonable conduct. As it shall later be demonstrated, the conducts complained of in casu are far from being foolish by a proverbial mile. This being the first hurdle to cross, it must follow that La Foy failed to discharge her statutory burden of proof. She could not prove on the preponderance of probabilities that any of the conducts complained of are foolish, idiotic or stupid. [34] Assuming for now, which assumption this Court is not necessarily making in the ultimate end, that La Foy managed to cross the first hurdle, she still has to show that the conduct amounts to discrimination. Discrimination is an act of making distinctions. It is an unjust or prejudicial treatment of different categories of people. Yet again the evidence tendered before this Court is far from demonstrating discrimination. As indicated above, La Foy simply suffered from unpleasant consequences of the exercise of management function. In my view, La Foy comes second best on this leg. She conceded during her testimony that the issue of incapacitation was not facing her or her branch only. "[35] A further putative assumption being made that the second hurdle is crossed, La Foy still has to show that the discrimination is unfair. It is accepted that the notion of fairness is elastic and incapable of a specific definition. However, as pointed out, an employer exercises control and interference at the workplace. Later in this judgment, this Court shall consider each of the complaints raised by La Foy. For now, this Court takes a firm view that no element of unfairness has been demonstrated in this trial. It suffices to mention that inasmuch as the relationship between La Foy and the DM decayed over a period of time, such does not imply unfairness. On the version of La Foy, as demonstrated by the referral documents, the dispute that this Court must adjudicate upon, arose on 24 April 2017. She referred that dispute for conciliation, as required by section 10 (2) of the EEA, on 9 May 2017. Howbeit, this Court benignantly received testimony about incidents that took place in 2016, shortly after La Foy assumed employment with Justice. These incidents would as a matter of fact have fallen outside the prescribed six months’ period. Nevertheless, on her own version, the dispute that was conciliated upon arose in April 2017. As an annexure to the referral form, La Foy vaguely listed acts complained of and deliberately failed to set out the dates of each incident. This Court must assume that such a palpable deliberate failure was aimed at bypassing the six-month legislated period. Had she disclosed the dates of each incident, she may have been compelled to show good cause as required by section 10 (3) of the EEA...[37...When one speaks of them one cannot say they are happening but one must say they happened. " "[41] Reverting to the definition of a cause of action, the prohibited grounds, in this instance, any arbitrary grounds, constitute a piece of evidence necessary to prove the cause of action – unfair discrimination. Put differently, in the absence of any of the grounds listed or unlisted differentiation lacks legal basis to constitute an actionable claim.[30] There can never be a legal claim of unfair discrimination if the grounds are not alleged to be any form of differentiation. Therefore, a ground on its own is not a separate and distinct cause of action. In this regard, the facta probanda is the unfair discrimination and the facta probantia is the alleged ground. " [47]... The Constitutional Court in Hoffman v SA Airways[[2000] ZACC 17; 2001 (1) SA 1 (CC).] concluded that the determining factor regarding the unfairness of discrimination is its impact on the person discriminated against. La Foy admitted that the limitations placed on the provision of resources were not aimed and directed at her as a person. [69] Key ingredients for legislation aimed at eliminating workplace harassment are the right to dignity, equality and fair labour practices. Thus, harassment must be an act that threatens all or one of these key ingredients. Managerial functions generally do not threaten dignity, equality and fair labour practices. Having considered the complaints of La Foy cumulatively and objectively as fully discussed earlier in this judgment, this Court fails to observe any harassment as legally defined. It is indeed so that the alleged conduct ought to be assessed objectively from the perspective of an employee who alleges harassment. The primary focus of the inquiry as to whether there has been harassment, is on the impact of the conduct on the employee. The employee in this instance should be a bonis pater familias (reasonable person). Where a hostile work environment is alleged, key is the impact on the dignity of an employee as a person. This Court has already acknowledged that allegations and counter-allegations between the DM and La Foy led to the perspicuous decay of the relationship between them. However, this indisputable decay does not, in my view, transmute into harassment. The DM gave his reasons why he no longer wished to work with La Foy. In the present proceedings, it is not the function of this Court to inquire into the reasons provided by the DM. There was no contractual relationship between the DM and La Foy at the relevant period. Put differently, La Foy could perform her contractual functions optimally without any relationship with the DM or his involvement. By all accounts, La Foy has failed to establish the existence of unfair discrimination and her claim falls to be dismissed. arbitrary ground JA86/22 Enever v Barloworld Equipment South Africa, A Division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] ZALAC 12; [2024] 6 BLLR 562 (LAC); (2024) 45 ILJ 1554 (LAC) (23 April 2024) "[30]...An arbitrary ground is not merely any ground that has not been listed. This Court has settled the debate on whether a wide or narrow interpretation should be given to the meaning of arbitrary ground. It endorsed the narrow interpretation as a measure of limiting every and any claim related to labour relations being raised as unfair discrimination, stating: ‘The essential point is that the phrase to which meaning must be attributed is “ … any other arbitrary ground” and not the word “arbitrary,” free from its context and function. In this context the word “arbitrary” is not a synonym for the word “capricious.” The injunction in section 6(1) is to outlaw, not “arbitrariness”, but rather to outlaw unfair discrimination that is rooted in “another” arbitrary ground (the syntax of “ … any other …” cannot be understood as otherwise than looking back at what has been stipulated in the text that precedes it). Capriciousness, by definition, is bereft of a rationale, but unfair discrimination on a “ground” must have a rationale, albeit one that is proscribed. The glue that holds the listed grounds together is the grundnorm of Human Dignity.’[Prince 2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC); 2019 (1) SACR 14 (CC).]" "[31] More recently in Tshazibane v Montego Pet Nutrition and Others,[2022] ZALCPE 19; (2022) 43 ILJ 2610 (LC); [2022] 12 BLLR 1151 (LC). ] the Labour Court having examined the relevant authorities, reached a similar conclusion, holding: ‘To summarise, where reliance is placed on an arbitrary ground a complainant in an unfair discrimination claim is required to establish that [they have] been the object of unequal treatment based on attributes and characteristics [they] either possess or with which [they are] associated and which have the potential to sully or diminish [their] intrinsic humanity and that of others in [their] situation. It is the impact on the complainant which is decisive.’[25] (Footnotes omitted.)" [32] The Appellant must thus show that the discrimination she alleges impacted her dignity in a manner comparable to how dignity is impacted when discrimination is on a listed ground. The Appellant submits that the discrimination she faced as a cannabis user seriously infringed on her dignity by violating her right to privacy and subjecting her to a humiliating process that portrayed her as a “junkie”. This is based on the common cause facts that when testing positive, the Appellant was not impaired in the performance of any of her duties. It is common cause that the appellant worked in an office and her job did not entail operating dangerous machinery. She was also not required to drive for the Respondent or perform any duty where impairment from cannabis would present a risk to her or others in the workplace. [52] I conclude that the Respondent’s policy is overbroad and infringes the Appellant’s right to privacy. I find that her treatment as someone who was “intoxicated” when in fact she was not, is unfair discrimination because it singles out cannabis users compared to alcohol users, for what they do at home, even in situations where their conduct carries no risk for the employer. Differentiation on a specified ground of discrimination: discriminated against on the basis of their prior status as fixed term contract employees. Sunset clause: [89] The differentiation with respect to the sunset employees is admitted. They were denied a wage increase for a period until their basic remuneration fitted into the approved salary band for the positions they occupied. It is undisputed that the Applicants who were subject to the operation of the sunset clause were treated differently from other permanent employees in that they did not receive the wage increases the other permanent employees received. J2055/2014 Lebelo and Others v City of Johannesburg Metropolitian Municipality (J2055/2014) [2024] ZALCJHB 23 (22 January 2024) [70] Differentiation per se does not constitute discrimination. Differentiation on a specified ground of discrimination is presumed to constitute unfair discrimination, which presumption is rebuttable. Given that an arbitrary ground is synonymous with an unlisted/unspecified ground, the test for whether discrimination is established is as set out in Harksen v Lane NO and others[2] (Harksen), namely, if there is differentiation based on an unspecified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings or to affect them adversely in a comparably serious manner.[3] [75] In short: it is not sufficient to simply allege differentiation or that the differentiation is arbitrary or that an employee’s dignity has been impaired. An applicant must allege a specific ground of discrimination, and must prove that the pleaded ground of discrimination is the basis for differentiation and that it is unfair. There is a distinction to be drawn between differentiation and discrimination and differentiation per se does not constitute discrimination on an arbitrary ground, which must be clearly identified and pleaded. "79] Irrational differentiation does not automatically constitute unfair discrimination, just as rational differentiation might nevertheless amount to discrimination. As was held in Harksen: ‘If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.’" [80] To succeed with their case, the Applicants must prove all three elements set out in section 11(2) of the EEA. "81] The applicable test is as per Harksen v Lane NO and others [1997] ZACC 12; 1998 (1) SA 300 (CC) at para 50. where it was held as follows: ‘(a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of s 8(1). Even If it does bear a rational connection, it might nevertheless amount to discrimination. (b) Does the differentiation amount to unfair discrimination? This requires a two-stage analysis: (i) Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. (ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation. If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of s 8(2). (c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (s 33 of the interim Constitution).’" "83] If differentiation is established, the second question is whether the differentiation bears a rational connection to a legitimate purpose, or put differently, whether the conduct complained of is rational. Even if it is rational, it might still amount to discrimination. [84] The last question is whether the conduct constitutes unfair discrimination. To determine whether the differentiation amounts to unfair discrimination, a two-stage analysis must be followed. The first stage is to determine whether the differentiation amounts to discrimination and if it does, the second stage is to determine whether the discrimination is unfair." "94] The Respondent’s case is that the application of the sunset clause was necessary, fair and rational. The sunset clause provided a mechanism to equalise the limited number of converted employees whose remuneration exceeded the maximum permissible remuneration for their level in order to bring them back within the agreed salary bands for the level they were on. [95] In my view, the sunset clause is rational as it bears a rational connection to a legitimate purpose, namely to serve as an equalisation process." victims of nepotism J2055/2014 Lebelo and Others v City of Johannesburg Metropolitian Municipality (J2055/2014) [2024] ZALCJHB 23 (22 January 2024) 30] Do these averments that the protection officers are the victims of nepotism meet the test in Harksen v Lane NO? in my view they do not. Nepotism, in any case, cannot be countenanced, even more so in the case of parliament. However this court is required to determine this dispute in terms of the EEA and nepotism is not a necessary affront to human dignity, in neither the sense contemplated by s 9 of the Constitution, nor in s 6(1) of the EEA. To be neglected because of nepotism implies no characteristic of a person so victimised nor does it invoke any pejorative perspective of such person, whether inherent or adopted. Nepotism differs from, for example racism, where the bearer of authority or of power rejects X because of X’s race and prefers Y because of Y’s race. If what Van der Spuy has done is indeed to prefer his chums to the appellants, ie behaved nepotistically, that conduct, however wrongful, is not unfair discrimination within the purview of s 6(1).’ [75] In short: it is not sufficient to simply allege differentiation or that the differentiation is arbitrary or that an employee’s dignity has been impaired. An applicant must allege a specific ground of discrimination, and must prove that the pleaded ground of discrimination is the basis for differentiation and that it is unfair. There is a distinction to be drawn between differentiation and discrimination and differentiation per se does not constitute discrimination on an arbitrary ground, which must be clearly identified and pleaded. Retirement age: what constitutes a normal retirement age JS550/17 Pedra v Wisium SA (Pty) Ltd (JS550/17) [2024] ZALCJHB 45 (26 January 2024) [41] The age of retirement for employees is not specified in our law. Employers are however, entitled to rely on a normal age of retirement which is often specified in the employer’s internal policies. The normal age of retirement may also be established with reference to the pension scheme that employers participate in. "[42] In Cash Paymaster Services (Pty) Ltd v Browne,[16] the Labour Appeal Court (LAC) stated as follows: ‘The retirements are dispensations provided for in section 187(2)(b) of the Act is one that works based on the basis that, if there is an agreed retirement age between an employer an employee, that is the retirement age that governs the employee’s employment. This is the case even when there is a different normal retirement age for employees employed in the capacity in which the employee concerned is employed. The provision relating to the normal retirement age only applies the case where there is no agreed retirement age between the employer and the employee.’(Own emphasis) " " [43] In Bos v Eon Consulting (Pty) Ltd,[17] this Court stated as follows with reference to the concepts of an agreed age of retirement and a normal age of retirement: ‘[37] As to these bases referred to, it has to be one or the other. It cannot be both. A normal retirement age can only apply where there is no agreed retirement age… [38] Turning firstly to an agreed retirement age, there can be no question of what an agreed retirement age means. In order for an agreed retirement age to exist, it has to be shown that the employer and the employee achieved consensus on the actual age of retirement of the employee and that this retirement age gives rise to the compulsory retirement of the employee from the employ of the employer at that age. This agreement need not be in writing, although this would be preferable. A retirement age stipulated in the employment contract of the employee would constitute such an agreed retirement age.’ [39] As to what constitutes a normal retirement age, the Court in Rubin Sportswear said: ‘… What is the normal retirement age depends upon the meaning to be accorded the word “normal” in section 187(2)(b). The word is not defined in the Act. It, accordingly, must be given its ordinary meaning. Chambers-Mcmillan’s SA Students Dictionary describes the word “norm” thus: “You say that something is the norm if it is what people normally or traditionally do”. It further says: “Norms are usual or accepted ways of behaving”. It describes the adjective “normal” as meaning “usual, typical or expected”. The word “normality” is described as “the state or condition in which things are as they usually are”. The New Shorter Oxford English Dictionary describes the word “norm” as meaning, among others “a standard, a type; what is expected or regarded as normal; customary behaviour, appearance”. As to the adjective “normal”, one meaning that the latter dictionary gives is “constituting or conforming to a standard; regular, usual, typical, ordinary, conventional”. After analysing a number of judgements the court concluded: “It seems to me that the word “normal” as used in section 187(2)(b) really means what it says. It means that which accords with the norm.” [40] A retirement age that accords with the norm, as contemplated by section 187(2)(b), can be established both internally in an employer, or externally in a particular industry if there is no norm in the employer itself. [42] When it comes to the norm in an employer, this must equally be established by evidence. This evidence would include evidence about a practice in the employer, when other employees may have retired, policy provisions of regulation, or pension/provident funds rules or annuity provisions… The easiest way of establishing a retirement age norm in an employer would of course be by way of a retirement policy. [43] It is not required that employees have to be consulted on, or that they have to agree to, the retirement age stipulated by the employer in the retirement policy. In principle, an employee is entitled to unilaterally fix, and then implement, a normal retirement age…’ [44] With the afore-going in mind, in the present case, the contract between Mr. Pedra and the respondent does not specify his agreed retirement age. What does exist, is a retirement policy and provident fund rules that specify the normal retirement age as 60 years for employees in the category that Mr. Pedra was employed. Therefore, the basis of the age of retirement that is involved is the normal age of retirement. It is not both. Our Courts have said it cannot be both. [45] The contract of employment refers to both the retirement policy as well as the pension fund and its rules, all applicable and binding on Mr. Pedra. [46] I find that the dismissal of Mr. Pedra occurred as he had reached the respondent’s normal age of retirement for persons employed in the capacity which he occupied. I find that the respondent followed its retirement policy and procedure to the letter in terms of terminating the employment contract of Mr. Pedra. [47] I find that unfair discrimination does not arise for the reasons that follow below. [48] Section 9 of the Constitution makes provision for the right to equality and the prohibition of unfair discrimination on the listed grounds in subsection (3) and reads as follows: ‘(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.’ (Own emphasis) [49] The Employment Equity Act[18] (EEA), is one of the pieces of national legislation that prevents and prohibits unfair discrimination in the workplace. [50] Sections 5 and 6 (1) and (2) of the EEA provide as follows: ‘5. Elimination of unfair discrimination. – Every employer must take steps to promote equal opportunity in the work-place by eliminating unfair discrimination in any employment policy or practice. 6. Prohibition of unfair discrimination. (1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground. (2) It is not unfair discrimination to – (a) take affirmative action measures consistent with the purposes of this Act; or (b) distinguish, exclude or prefer any person on the basis of an inherent requirement of the job.’ [51] In Lewis v Media24 Ltd,[19] the Court held as follows at paragraph 36: ‘The concept of discrimination is made up of three issues: differential treatment; the listed or analogous grounds; and the basis of, or the reason for, the treatment. Once a difference in treatment is based on a listed ground, the difference in treatment becomes discrimination for the purposes of s 9 of the Constitution and s 6 of the EEA.’ [52] In my view, Mr. Pedra has not established any differential treatment. Mr. Mpati is no comparator of Mr. Pedra. He is not employed in the same category or capacity as Mr. Pedra. Discrimination therefore does not arise and section 187(2)(b) of the LRA accordingly finds no application." Religion: minority judgement JA 13/23 Sun International Management Limited v Sayiti (JA 13/23) [2024] ZALAC 52 (21 October 2024) Employee not working Friday evenings and Saturdays – Obligation to engage in weekend work was reasonably connected to legitimate work-related purpose – Inherent requirement of the job – Company took measures reasonably to accommodate his religious beliefs – However, situation became intolerable – Incapacity inquiry – Dismissal substantively and procedurally fair – Labour Relations Act 66 of 1995, s 187(1)(f) – Employment Equity Act 55 of 1998, s 6. [1] One of the hallmarks of an enlightened egalitarian society is the right to freedom of religion.[1] However, respect for religious rights is not a confined absolute right; like other rights, freedom of religion exists in the context of other correspondingly important rights of others.[2] They coexist alongside statutory imperatives to eliminate unfair discrimination and to promote vibrant and diverse workplaces.[3] Religion: majority judgement JA 13/23 Sun International Management Limited v Sayiti (JA 13/23) [2024] ZALAC 52 (21 October 2024) [58] I have read the judgment prepared by my colleague Nkutha-Nkontwana JA (first judgment) in which she finds unassailable the Labour Court’s conclusion that the appellant failed to establish that it could not accommodate the respondent without imposing undue hardship on its business operations. Regrettably, I find myself unable to agree with that conclusion. [61]...The point is not without significance – s 6 (2) (b) of the EEA provides that it is not unfair discrimination to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job; s 187 (2)(b) of the LRA provides that a dismissal may be fair if the reason for dismissal is based on the inherent requirement of the particular job. The EEA thus provides a specific defence of the inherent requirements of a job as an element of a general fairness defence to a claim of unfair discrimination in any employment policy or practice; the focus of the LRA is on the reason for dismissal. If the reason is based on an inherent requirement of a job, the dismissal ‘may be fair’. [62]...The appellant thus conceded that ‘there was discrimination’, but contended that the discrimination was fair. What this concession entails is the appellant’s acceptance that by dismissing the respondent for incapacity, it discriminated against him on the grounds of his religious beliefs, but that his dismissal was nonetheless fair because the reason for dismissal was based on the weekend work requirement, that being an inherent requirement of the respondent’s job. "[63] What constitutes an inherent requirement of the job for the purposes of s 187 of the LRA (and indeed, s 6 of the EEA), has been the subject of a number of judgments by this Court. In TFD Network Africa (Pty) Ltd v Faris[33] (TFD Network) this Court stated: ‘The test for whether a requirement is inherent or inescapable in the performance of the job is essentially a proportionality enquiry. Considering the exceptional nature of the defence, the requirement must be strictly construed. A mere legitimate commercial rationale will not be enough. In general, the requirement must be rationally connected to the performance of the job. This means that the requirement should have been adopted in a genuine and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose and must be reasonably necessary to the accomplishment of that purpose.’" "[75] In sum, the appellant has established that it took such steps that were reasonably available to it in the circumstances to accommodate the respondent’s inability to engage in weekend work on account of his religious beliefs. The reason for the respondent’s dismissal was based on an inherent requirement of the particular job, and thus not automatically unfair The appeal stands to succeed. Neither party pursued the issue of costs, and no order for costs will be granted. " Section 6(4), introduced into the EEA, Clause 4, 5 and 6 of the Employment Equity Regulations : pay discrimination claim requires proof that the difference in pay between employees CA04/2023 Passenger Rail Agency of South Africa v Hoyo (CA04/2023) [2024] ZALAC 57 (6 November 2024) "[11] A pay discrimination claim requires proof that the difference in pay between employees who perform the same work or work of equal value is as a result of a specific listed ground for differentiation which is prohibited by law. Evidence of a comparator must take the form of at least one other employee who performs that same work or work of equal value. [11] A pay discrimination claim requires proof that the difference in pay between employees who perform the same work or work of equal value is as a result of a specific listed ground for differentiation which is prohibited by law. Evidence of a comparator must take the form of at least one other employee who performs that same work or work of equal value. [11] A pay discrimination claim requires proof that the difference in pay between employees who perform the same work or work of equal value is as a result of a specific listed ground for differentiation which is prohibited by law. Evidence of a comparator must take the form of at least one other employee who performs that same work or work of equal value. " [12] Applying section 11, this required of PRASA to prove that the alleged discrimination did not take place, was rational and not unfair, or was otherwise justifiable. [14] A further difficulty with Mr Hoyo’s claim concerned his reliance on his two subordinates as comparators to support his claim. This was when there was no evidence, or even a suggestion, that the work performed by the two subordinates was equal to or of equal value to that of Mr Hoyo. In Mdunjeni-Ncula v MEC, Department of Health and Another[[ 2021] ZALAC 29; (2021) 42 ILJ 2393 (LAC) at para 20.], this Court found that the comparators relied upon by the appellant did not provide the requisite evidence to show that any differentiation in salary between the appellant and any of the three comparators relied upon was based on discrimination sourced on the ground of gender or sex. Similarly in this matter, the comparators relied upon did not show that the pay differential which existed between Mr Hoyo and the two comparators raised by him constituted discrimination on the ground of race. [18]... The income differential between him and his subordinates did not relate to the same work or work that was interchangeable or sufficiently similar and it was not shown that any such pay differential amounted to discrimination on the grounds of race. It follows that no discrimination related to the entitlement to receive equal pay for equal work or work of equal value or on grounds of race was shown to exist and that in finding differently, the Labour Court erred. Manager using k-word to refer to applicant JS230/20 Mavundla v Frame Leisure Trading (Pty) Ltd (JS230/20) [2024] ZALCJHB 342; (2024) 45 ILJ 2756 (LC) (2 September 2024) Discrimination on grounds of race – Alleged failures in payroll process that led to losses for company – Emails showing that manager did not want to engage another black person and would prefer white woman – White woman then brought in – Manager using k-word to refer to applicant – Company unwilling to indulge applicant’s failings because she was black – Evidence showing that but for the applicant's race, she would not have been dismissed – Dismissal of applicant declared to be automatically unfair – Labour Relations Act 66 of 1995, s 187(1)(f). had failed to place a hold on salaries. It was decided that she should be charged with misconduct. "With regards to Slu….We need to look for a back-up but not a black again. I need someone that I can train in Industrial Relations, HR and payroll. Maybe a young graduate white female. I deliberately want to stay away from the liberal element with political agendas."..."Pretorius called her a “kaffir”. " [43]...Our courts have stated that: “”Racism is a plague and a cancer in our society which must be rooted out. The use by workers of racial insults in the workplace is anathema to sound industrial relations and a severe and degrading attack on the dignity of the employee in question”.[6] It is simply disgraceful that Frame took no action in the face of this disparaging and contemptuous conduct by Pretorius. "52.1 In South African Chemical Workers Union and others v Afrox Ltd[14] Froneman DJP (as he then was) held as follows: “[32] The enquiry into the reason for the dismissal is an objective one, where the employer's motive for the dismissal will merely be one of a number of factors to be considered. This issue (the reason for the dismissal) is essentially one of causation and I can see no reason why the usual twofold approach to causation, applied in other fields of law, should not also be utilized here (compare S v Mokgethi & others 1990 (1) SA 32 (A) at 39D41A; Minister of Police v Skosana 1977 (1) SA 31 (A) at 34). The first step is to determine factual causation: was participation or support, or intended participation or support, of the protected strike a sine qua non (or prerequisite) for the dismissal? Put another way, would the dismissal have occurred if there was no participation or support of the strike? If the answer is yes, then the dismissal was not automatically unfair. If the answer is no, that does not immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether such participation or conduct was the 'main' or 'dominant', or 'proximate', or 'most likely' cause of the dismissal. There are no hard and fast rules to determine the question of legal causation (compare S v Mokgethi at 40). I would respectfully venture to suggest that the most practical way of approaching the issue would be to determine what the most probable inference is that may be drawn from the established facts as a cause of the dismissal, in much the same way as the most probable or plausible inference is drawn from circumstantial evidence in civil cases. It is important to remember that at this stage the fairness of the dismissal is not yet an issue (see para [33] below). Only if this test of legal causation also shows that the most probable cause for the dismissal was only participation or support of the protected strike, can it be said that the dismissal was automatically unfair in terms of s 187(1)(a) . If that probable inference cannot be drawn at this stage, the enquiry proceeds a step further.” (Own emphasis) 52.2 In Kroukam v SA Airlink (Pty) Ltd[15] Davis AJA (as he then was) held: “In my view, s 187 imposes an evidential burden upon the employee to produce evidence which is sufficient to raise a credible possibility that an automatically unfair dismissal has taken place. It then behoves the employer to prove to the contrary, that is to produce evidence to show that the reason for the dismissal did not fall within the circumstance envisaged in s 187 for constituting an automatically unfair dismissal.” (Own emphasis)" " [66] Finally, even if the applicant was guilty of having performed her job in a negligent manner, that must be understood in context." 86.2 The respondent is ordered to pay the applicant compensation equivalent to 24 months wages, less any statutory deductions, appeal to the Labour Court in terms of section 10(8) of the Employment Equity Act,[1] as amended (the EEA): [9] The question as to whether the application of different multipliers (or no multiplier) to normal Sunday rates of pay in respect of different groups of employees constitutes discrimination against the employees for the purposes of the EEA, is at the core of this matter. (It is not the pay rates themselves which vary, but rather the multiplier that is applied to the relevant employees normal Sunday rate of pay to yield the relevant adjusted Sunday rate of pay when such adjustments are made.) [43] The question arises as to whether unfair discrimination claims in terms of the EEA can prescribe. J1529/2 SACCAWU v Lawson (J1529/22) [2024] ZALCJHB 448 (12 November 2024) "[47] In Barnett and Others v Minister of Land Affairs and Others[[2007] ZASCA 95; 2007 (11) BCLR 1214 (SCA) at para 20. [6] See also Lombo v African National Congress 2002 (5) SA 668 (SCA) at paras 26-27.] [2007] SCA 95 (RSA)[6], the Court stated as follows: ‘[20] In considering the special plea of prescription, the postulation is, of course, that the allegations underpinning the Government’s claim had in fact been established. Broadly stated, it must therefore be accepted for the prescription issue that the defendants’ occupation of their sites constitutes a contravention of both the Decree and the common law. Departing from this premise, the answer to the prescription defence is, in my view, to be found in the concept which has become well-recognised in the context of prescription, namely that of a continuous wrong. In accordance with this concept, a distinction is drawn between a single, completed wrongful act - with or without continuing injurious effects, such as a blow against the head - on one hand, and a continuous wrong in the course of being committed, on the other. While the former gives rise to a single debt, the approach with regard to a continuous wrong is essentially that it results in a series of debts arising from moment to moment, as long as the wrongful conduct endures (see eg Slomowitz v Vereeniging Town Council 1966 (3) SA 317 (A); Mbuyisa v Minister of Police, Transkei 1995 (2) SA 362 (T); Unilever Bestfoods Robertsons (Pty) Ltd v Soomar 2007 (2) SA 347 (SCA) para 15).’ [48] Accordingly, I am of the view that in respect of this issue, the Appellant must succeed." "[93] The recent Labour Appeal Court decision in AMCU (supra)[AMCU v Chamber of Mines South Africa and others Labour Appeal Court case number JA20/2023 heard on 20 February 2024, judgment delivered on 14 May 2024.] contains elements that are relevant to this matter - “The Labour Court correctly noted that the test set out in Harksen v Lane NO and others[19] applies in the determination of a discrimination claim under section 6(1) of the EEA; and that in order for the alleged grounds of arbitrary discrimination to qualify as such, these must, objectively, constitute grounds based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner to a listed ground. The unequal treatment alleged must therefore be based on attributes and characteristics attached to a person before it will fall within the meaning of discrimination. In Naidoo and others v Parliament of the Republic of South Africa[[2020] ZALAC 38; (2020) 41 ILJ 1931 (LAC)] this Court made it clear that an “arbitrary ground” must be analogous to a listed ground of discrimination in the sense that it has the potential to impair human dignity in a comparable manner or have a similar serious consequence. " [94] The entire scope and background to why different multipliers were applied in respect of work on Sudays has been exhaustively canvassed by PnP in this matter. I am unable to agree that PnP’s conduct in this regard shows that there are grounds based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings … I am in agreement with PnP in this regard. "[106] The system is designed in a manner that is of prejudice to female employees, directly and indirectly. Kronos, the Sunday roster system does not take into account the personal circumstances of the employees, their gender, whether they have minor or older children or what their childcare and social circumstances are. The Kronos system thus prejudices female employees in relation to the terms of the code of good practice on the regulation of working time. [107] In Employment Equity Law at 8.8.4[ Employment Equity Law, Klick and Others.] the following is noted – ‘When designating shift rosters, it is important that an employer should be sensitive to the impact on employees, their families and family life. Certain shifts may have disproportionate impact on woman, pregnant woman in particular, married employees and employees with family responsibilities.’ [108] Accordingly, PnP’s practice was discriminatory on the basis of gender." "[137] In order to illustrate this point, the Commissioner referred to Pioneer Foods[Pioneer Foods (Pty) Ltd v Workers Against Regression & others (2016) 37 ILJ 2872 (LC); [2016] 9 BLLR 942 (LC) at para 50.] where it was held that ‘Differential treatment is ubiquitous in modern life and in the workplace. The EEA does not regulate such differential treatment at all unless and until it is established that it is both “not rational” and constitutes “discrimination”. (To constitute “discrimination” the differentiation must take place on a listed ground or any “other arbitrary ground” as contemplated in s 6(1). The following seminal passage from the Constitution Court in Prinsloo v Van der Linde & another is directly applicable, notwithstanding the different statutory context: “If each and every differentiation made in terms of the law amounted to unequal treatment that had to be justified by resort to s 33, or else constituted discrimination which had to be shown not be unfair, the courts could be called upon to review the justifiability or fairness of just about the whole legislative programme and almost all executive conduct… The courts would be compelled to review the reasonableness or the fairness of every classification of rights, duties, privileges, immunities, benefits or disadvantages flowing from any law. Accordingly, it is necessary to identify the criteria that separate legitimate differentiation from differentiation that has crossed the border of constitutional impermissibility and is unequal or discriminatory “in the constitutional sense”.’" "Conclusion [154] The essence of discrimination in the context of employment equity, is the impact that discriminatory conduct has on the employees who are victims of it. As set out in numerous authorities, some of which are referred to above, it goes to the dignity of the employee, to the essence of who they are. [155] I am of the view that the facts of this matter do not meet the test of a requirement for a fundamental impact on human dignity." Incomplete

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