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  • Latest News Blog

    Flying high at work

    In September 2018 the Constitutional Court ruled that the private cultivation, possession and consumption of cannabis is legal. This ruling lead to great uncertainty from...

    by VDMA Attorneys

    Specific forms of misconduct in the workplace and the necessity for a disciplinary code

    Section 118 of the Labour Relations Act 66 of 1995 (LRA) stipulates that a dismissal must be for a fair reason and effected in accordance...

    by Abrahams & Gross

    Global employment and labour law update

    Welcome to the second edition of our quarterly Global Employment Law Update. Working with lawyers from our international team, we have identified key trends in employment law to provide you with a country by-country overview of significant developments across…

    Provided By Eversheds Sutherland

    Who may apply for a patent? The applicant vs the inventor

    Every once in a while, a new technology, an old problem and a big idea turn into an innovation. Dean Kamen Such an innovation may cause the inventor to obtain a patent towards the protection thereof, and a granted patent is a highly lucrative commercial tool

    Provided By KISCH IP

    by Mathoto Masetla

    No work on public holidays A gift from the Labour Appeal Court

    In terms of the Basic Conditions of Employment Act, 75 of 1997 (BCEA), all employees are entitled to a minimum number of days leave per...

    by Bradley Davies

    The race card: Not the joker in the pack

    In the matter of Legal Aid South Africa v Mayisela and Others LAC (CA9/17) [2019] ZALAC [Delivered 5 February 2019), the Labour Appeal Court (LAC),...

    by Michael Yeates

    Taking your high from home to workâ€Å" Considering the impact of cannabis on the workplace

    Since the Constitutional Court declared the private use of cannabis legal in the matter of Minister of Justice and Constitutional Development and Others v Prince...

    by Nadine Mather and Amy Gerson

    Dont be a sell-out, but working during strike action could be a bonus

    Most employers are familiar with the principle of no work, no pay in the context of strike action, but what about the concept of work,...

    by Lauren Salt

    Differentiation doesnt always equal discrimination: Defences against unfair discrimination claims

    Section 6(1) of the Employment Equity Act, No 55 of 1998 (EEA) states that no person may unfairly discriminate against an employee, either directly or...

    by Hugo Pienaar

    Employment Rights â€Å" Third edition

    About this publication: Employment Rights forms one volume of a quartet by the author, which together covers the entire field of labour law as it has...

    by Juta

    #Metoo in the workplace: How to prevent and address sexual harassment

    Introduction Awareness of sexual harassment in the workplace has become particularly pronounced over recent years due to rising awareness on social media platforms following the #METOO...

    by Jacques van Wyk

    Dead men tell no talesâ€Å" But can they be reinstated?

    It is trite in employment law that reinstatement is the primary remedy for unfair dismissal under the Labour Relations Act 66 of 1995 as amended...

    by Neil Coetzer and Jessica Fox

    Disciplinary enquiries: Procedure, rights and obligations of employer and employees

    Disciplinary action occurs when a rule or standard of conduct in the working environment has been breached and cannot be remedied by any other means....

    by Wesley Scheepers

    SARS Interpretation Note 17: When will an employer be liable for employees’ tax in respect of an independent contractor?

    The South African Revenue Service (SARS) has published an updated Interpretation Note 17 (Interpretation Note) on how to determine whether a person is an independent...

    by Jerome Brink and Aadil Patel

    Emoluments attachment orders

    An Emoluments Attachment Order (EAO) is a debt collection process in which a court order stipulates the terms whereby the judgment creditor can attach or...

    by Abrahams & Gross

    Intention is everything: The role of intent in employee discipline for dishonesty and/or fraud

    Employers tend to charge employees who have received financial gain from misconduct with dishonesty or fraud even in cases where the benefit can be attributed...

    by Thabang Rapuleng and Tamsanqa Mila

    Poverty wages â€â€Å" Exceptions and uncertainties concerning the NMWA

    With the arrival of 2019, we saw the National Minimum Wage Act No. 9 of 2018 (NMWA) come into effect, which has not pleased those...

    by VDMA Attorneys

    Unfinished business: What to do when construction halts due to a contractors liquidation

    The past year has been challenging for South Africas construction industry, with some of the countrys best-known construction companies facing business rescue or liquidation. The...

    by Diana Burger

    Suspending your employee. The long and short of it.

    The Constitutional Court in Long v South African Breweries (Pty) Ltd and Others [2018] ZACC 7, recently held that ËÅ"there is no requirement for an...

    by Irshaad Savant

    Equal pay: Comparison dos and donts

    A brief explanation of the role of comparators in equal pay claims. An equal pay claim generally ensures that two people doing equal work are paid...

    by Hugo Pienaar

    Latest Cases Blog

    VODACOM (PTY) LTD v NATIONAL ASSOCIATION OF SOUTH AFRICAN WORKERS (NASA) (LC) Non-employers may approach the Labour Court for interdictory relief against unregistered trade unions

    21st CENTURY LIFE (PTY) LTD v GLADYS NOMBEWU (LAC). Summary: Dismissal based on operational requirements " employee indicating that she preferred not to be demoted and acquiesced to being retrenched in order to pursue her own business interests " employer construing such acquiescence as resignation and releasing employee from duties prior to the termination of employees employment - court finding that the documentary discussion between parties not evincing a resignation but rather a dismissal " court finding that compensation ordered by Labour Court not appropriate as no consequence arose because of the termination of the employment " court substituting compensation order " appeal partially upheld.

    SOLIDARITY OBO DR BJE VAN TONDER v ARMAMENTS CORPORATION OF SOUTHAFRICA (SOC) LIMITED (LAC). Summary: Constructive dismissal " employee resigning after filing a grievance in respect of the performance contract outputs and the appointment of staff and referred dispute to the CCMA he review standard is correctness not reasonableness - as the issue is one going to jurisdiction " applicant must show that the decision was objectively wrong. If found that there was no dismissal, CCMA not having jurisdiction - principle related to constructive dismissal restated " Held that employment must objectively have been rendered intolerable in the sense that no reasonable employee could be expected to put up with the conduct of the employer. Further that the employee must subjectively have found the conduct to be intolerable. Evidence proving that employee prematurely resigned prior to exhausting grievance procedures " court finding that there was a tense and awkward clash over authority but that these issues did not objectively attained the level of intolerability - the problem then became one of compatibility at senior management level which in common to any workplace - Labour Court correct in its conclusion that there was no dismissal in terms of section 186 of the LRA and that the CCMA accordingly lacked jurisdiction. Appeal dismissed.

    HOTBAKE SYSTEMS (PTY) LTD t/a THE RICH PRODUCT CORPORATION OF SOUTH AFRICA v CCMA (LAC). Summary: Review of arbitration award " employee dismissed for poor time keeping, extending his breaks and frequently visiting the change room " commissioner finding that the dismissal was unfair and ordering reinstatement. On review " employer contending that the CCMA lacked jurisdiction to hear the matter as the employee alleged that his dismissal related to his participation in union activities" further that commissioner erred in declaring a witness hostile. The Labour Court" finding no basis to set aside the award on the strength of the evidence that the employee had purportedly being targeted for dismissal due to participation in union activities. The Court - rejecting the argument that dispute fell outside the jurisdiction of the CCMA. Further held- that even if it were to find that the commissioner erred in her approach to declare a witness hostile, the irregularity would not be of a magnitude that vitiated the outcome of the arbitration.

    NUMSA OBO E MASANA v GILI PIPE IRRIGATION (PTY) LTD (LAC). Summary: Rescission application . Labour Court dismissing rescission application by employee. Labour Court holding the view that award prescribed and no prospects of success in rescission application . principles relating to prescription restated . Metrobus and Piemans Pantry decisions in Constitutional Court applied - On the facts, prescription had not run its full term; employees right of action had not prescribed . premise upon which application dismissed by Labour court incorrect - Appeal upheld and matter remitted to the Labour Court for consideration of the merits of the rescission application.

    GOLDGRO (PTY) LTD v CAROLINE MCEVOY (LAC). Summary: Alleged Protected disclosure . employee contending that her retrenchment was due to the disclosure she made concerning certain irregularities to the board of which she is a member - the employee caused her attorney to send a letter (the PD letter) to the board concerning: (1) the integrity of the facility for coins held in safekeeping, (2) the integrity of the appellants stance on dealing with lessors to whom turnover rentals were owed, and (3) the merits of an application to place the appellant into business rescue.

    GENET MINERAL PROCESSING (PTY) LTD v CCMA (LAC). Summary: Review of arbitration award . employee dismissed for negligently allowing blockage to occur thereby interrupting production at the plant which caused financial loss to the employer . There was a confusion about the dates when the blockage occurred . the wrong dates initially alleged - commissioner finding that no misconduct committed on the dates initially alleged and that dismissal unfair

    TRANSPORT AND ALLIED WORKERS UNION OF SOUTH AFRICA v ALGOA BUS COMPANY (PTY) LIMITED (LAC). Summary: Condonation for the late filing of the notice of appeal and reinstatement of appeal . union contending that financial constraints limited its ability to brief counsel who will accept its payment condition . court held that an explanation based on the lack of funds will not automatically result in the granting of condonation and that explanation for the delay wholly unsatisfactory as union not providing financial statement proving its financial distress. Application for the reinstatement of the appeal dismissed and matter struck from the roll.

    PIKITUP JOHANNESBURG (SOC) LIMITED v NEIGHBOUR EDWARD MUTERO (LAC). Summary: Enforcing arbitration award in terms of s158(1)(c) of the LRA . Labour Court making award an order of court reinstating employee in former position or any available executive positions and payment of bonuses . employer contending that as the result of the restructuring employees former position downgraded to that of General Management .held that employee was employed in an executive position prior to his dismissal and at the time of his reinstatement there were three vacant executive positions. So even if, as a result of the restructuring of the executive post which employee had occupied before his dismissal, it became impossible for him to be reinstated into that post, he was entitled to be reinstated into any of the other three vacant executive positions. As regards the payment of the bonuses ordered by the Labour Court, court held that payment of bonuses is discretionary and based on performance. Appeal partially upheld.

    MACSTEEL TRADING WADEVILLE v FRANCOIS VAN DER MERWE N.O (LAC). Summary: Review of arbitration award . employer raising union undue delay in prosecuting the review application in its answering affidavit in the review application . Labour Court refusing to consider the undue delay because the employer had not filed a rule 11 application . court finding that by the time review was heard, the application had in effect lapsed and been archived in terms of Practice Manual of the Labour Court- as such the Labour Court had no jurisdiction and should have struck the matter from the roll or give the employer an opportunity to file a separate rule 11 application demonstrating why the matter should be dismissed or struck from the roll on the basis of undue delay. Appeal upheld with costs and Labour Courts judgment set aside.

    WORKERSLIFE DIRECT (PTY) LTD v E MALOKA (LAC). Summary: Specific performance . employee claiming payment of post-employment commissions in terms of a Group Scheme Broker (GBS) contract after resigning . employee contending that he had concluded both an admin contract and a GSB contract with employer and that was entitled both to the benefits of an administrative employee and to the post-termination commission . employer contending that only GSB employees entitled to post-termination and targets commission and disputed the authenticity of the GSB contract - court finding that employee was paid on terms identical to those provided for in the GSB contract and that employee GBS contract probably authentic . Labour Courts judgment upheld and appeal dismissed with costs.

    NKOMATI JOINT VENTURE v CCMA (LAC). Summary: Review of arbitration award . duty of commissioner to assist unrepresented litigants - employer contending that failure by the commissioner to lend a helping hand and to inform it that it was required to re-open its case and lead evidence in rebuttal of employees new version was a gross irregularity

    NATIONAL COMMISSIONER OF THE SOUTH AFRICANPOLICE SERVICE v POPCRU obo A. MEZICHEL (LAC). Summary: Review of the disciplinary sanction imposed by employers appeal authority . appeal authority reversing sanction of dismissal against employee . court finding that appeal authoritys decision irrational and unreasonable in light of the employees conduct.

    TELKOM SA LTD v THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION (LC). Summary: Jurisdiction of the CCMA to deal with an unfair labour practice dispute emanating from section 189 process. Section 186(2)(a) . failure to appoint the employee to a promotive position created consequent to restructuring and offered as an alternative to retrenchment. Interpretation of section 193(4) of the LRA . remedy of reinstatement and promotion of a retrenched employee.

    SIMON MARIPANE v GLENCORE OPERATIONS SOUTH AFRICA (PTY) LTD (LC). Summary: Review of arbitration award -employee dismissed for insubordination having refused to return to his work station after his tenure as a health and safety representative had allegedly ended as a result of the election of new leadership- in terms of an agreement concluded with the union, the employee was appointed as health and safety representative - subsequent to an election of the leaderships a letter the name of the elected official were sent to the employer- the employer construed the letter to mean that the employee was no longer its health and safety representative - employer instructed the employee to return to his position as Raw Material Operator- the employee refused to heed to the instruction and was consequently dismissed -

    NATIONAL UNION OF MINEWORKERS, BEN RAMOLEBO v CMA (LC). Summary: Review application -" circumstantial evidence-such evidence persuasive if inference sought to be drawn from evidence is consistent with all the proven facts and it is most plausible inference

    SALBC v MEHMOOD DAWOOD ALLY N.O. CITY OF JOHANNESBURG (LC). Summary: Bargaining council arbitration proceedings - Review of proceedings, decisions and awards of arbitrators-" Test for review - Review concerning issue of jurisdiction - Test of rationally and reasonableness does not apply - Issue considered de novo as to whether arbitrator right or wrong

    MAPULE MUSHAISANO SIBANYONI v TRANS-AFRICA PROJECTS (PTY) LTD (LC). Summary: A tale of two conflicting directives issued by Judges in Chambers. What then becomes the status of those directives? The history of the directives and the enforcement thereof considered. In applications of this nature prospects of success play a minimal or no role. As long as the explanation is adequate and acceptable, an applicant must be afforded her rights guaranteed in section 34 of the Constitution. Held (1) the application is re-enrolled. (2) There is no order as to costs.

    MINISTER OF HOME AFFAIRS LIMPOPO PROVINCE v NEHAWU obo MOJAPELO MM (LC). Summary: An in ordinate and unexplained delay in the prosecution of a review application justifies the dismissal of the application.