Latest Cases

DRS DIETRICH, VOIGT & MIA v BENNET CM N.O (LAC). Summary: Review of an arbitration award - Employee dismissed for falsifying his overtime claim forms. The CCMA - finding that the employee was not guilty of dishonest conduct but negligent - substituting the sanction of dismissal with an award of retrospective reinstatement and a 12-months written warning for negligence. On review to the Labour Court- finding that the award was not susceptible to review and fell within the band of reasonable decision-makers. Consequently- finding no basis to upset the commissioner’s assessment of the fairness of the disciplinary sanction meted out to the employee.

THE DEPARTMENT OF EDUCATION v JOHN KEARNS N.O. (LAC). Summary: Review of the decision of a presiding officer â€" principle restated that a government department as an employer has the right to review unreasonable, irrational or procedurally unfair conduct by presiding officers exercising delegated authority. â€" such decision administrative action and the employer having the right to seek administrative law review; Labour Court empowers under section 158(1)(h) of the LRA to hear and determine the review â€" presiding officer setting aside charges against employee â€" Labour Court dismissing review on the basis that employer failed to set out a cause of action in its affidavit by relying specifically on PAJA

WALLENIUS WILHELMSEN LOGISTICS VEHICLE SERVICES v NUM (LAC). Summary: Collective agreement regulating negotiation and level of bargaining â€" union demanding an additional R40.00 for transport per day for its members â€" employer obtaining a rule nisi retraining the union intended strike- rule nisi discharged on the return date on the basis that the bargaining council constitutional prohibitions on plant level bargaining had no application while there was no enforceable collective agreement in operation. Held that bargaining council constitution remained (and remains) extant despite the expiry of the 2013 agreement. Clause 11 of the MIBCO constitution makes it abundantly clear that proposals and bargaining in respect of the amendment of any existing agreement, the introduction of a new agreement or any matter of mutual interest are to be negotiated at MIBCO level and not at plant level; and clause 12 prohibits strike action unless and until the dispute about a matter of mutual interest has been dealt with at central level…The prohibition on plant level bargaining is directed at uniformity and orderly substantive outcomes. The attempt by NUMSA to introduce two-tier bargaining sought to alter substantive wage rates at plant level in respect of a single employer. That is a matter of mutual interest reserved by the MIBCO Constitution for centralised bargaining. NUMSA’s failure to do that meant that the strike was prohibited in terms of section 65(1)(a) of the LRA. NUMSA was bound by a collective agreement (the MIBCO constitution) that prohibited a strike in respect of a demand for increased wages at plant level. The Labour Court accordingly erred in not confirming the rule nisi. Appeal upheld.

SOLIDARITY OBO Scholtz m v Gijima Holdings (Pty) Ltd. Summary: Claim for unlawful deduction â€" the employer and the employee concluding an Employee Loyalty Incentive Scheme Agreement (the ELISA) in terms of which the employee would remain in the employ of the employer for a period of 12 months following the payment of a retention bonus â€" employer notifying the employee of the termination of the ELISA â€" employee urging the employer to pay the bonus- the employer complying with the request by effecting payment of the bonusâ€" thereafter the employee resigning â€" the employer deducting the retention bonus paid to employee-

FIDELITY SECURITY SERVICE (PTY) LTD v SOCRAWU OBO KNOXWELL NENGWEKHULU & 1 OTHER (LC). Summary: 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.



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Latest Cases

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.

Latest Article



The legal position on pre-suspension hearings has changed

For many years, we have advised employers who are about to suspend an employee on full remuneration to provide such employee with an opportunity to make representations on their proposed suspension. The Constitutional Court has on 19 February 2019 handed down judgment in the matter of Long v South African Breweries (Pty) Ltd and Others [2018] ZACC 7 finding that when an employer suspends an employee, there is no requirement to have a hearing prior to the suspension. Put differently, the legal position on pre-suspension hearings has now changed.

Background facts

Mr Long was employed by South African Breweries (Pty) Ltd (SAB) as its district manager for the Border District. One of his core responsibilities related to management of a fleet of company vehicles. In May 2013, one of these vehicles was involved in a fatal accident. It was subsequently discovered that the vehicle was not roadworthy and unlicensed. After an investigation by SAB, it was discovered that numerous vehicles, which Mr Long was responsible for, were not roadworthy and unlicensed. After a disciplinary hearing, Mr Long was dismissed for misconduct on the basis of dereliction of duties, gross negligence and brining the company name into disrepute. At the start of the investigation, Mr Long was suspended from work until his dismissal.

Mr Long subsequently instituted separate referrals to the Commission for Conciliation, Mediation and Arbitration (CCMA) - one relating to his suspension (prior to dismissal) and the other relating to dismissal.

On the suspension referral, the CCMA found that this constituted an unfair labour practice as Mr Long had not been given a hearing prior to suspension and that the suspension was unreasonably long. Mr Long was awarded compensation amounting to two months of his remuneration.

Pre-suspension hearings

One of the central questions before the Constitutional Court was whether an employer is required to hold a hearing before suspending an employee. The purpose of the hearing would be to allow the employee to make representations to ultimately convince an employer not suspend the employee.

The Labour Court found that an employer is not obliged to grant an employee the opportunity to a hearing prior to precautionary suspension. In order to ensure fairness, the suspension must be linked to a pending investigation and ultimately should be used by an employer as a measure to protect the integrity of that investigation. If the employee is suspended on full remuneration, this will mitigate any prejudice suffered by the employee. The Labour Court therefore held that the suspension of Mr Long did not amount to an unfair labour practice.

Ultimately, the Constitutional Court agreed with the Labour Court on this question. Where the employer suspends an employee as a precautionary measure, such an employee is not entitled to a pre-suspension hearing. In order to assess the fairness of a suspension, two considerations should be borne in mind:

  Fairness

  • Is there a fair reason for the suspension of the employee?

 

  Prejudice

  • Will the suspension prejudice the employee concerned?

The Constitutional Court upheld the decision of the Labour Court. The fact that Mr Long did not receive a pre-suspension hearing did not amount to an unfair labour practice. The suspension was also held to be fair in that it was used to protect the integrity of the investigation. Mr Long was also suspended on full remuneration and, despite the length of the suspension, this mitigated any prejudice suffered by him

Workplace policies

Importantly, this judgment does not mean that suspension can be used as a form of discipline (i.e. suspension without pay or for unreasonably long periods of time). Employers are still required to ensure that investigations into alleged misconduct by employees are completed within a reasonable period of time.

Employers who currently provide for pre-suspension hearings in their workplace policies should consider amending such policies to align them with this judgment.


 



LRA Amendments 2018

Labour Relations Amendments May 2018 BCEA Amendment Bill 2017;

  • BCEA Memorandom of Objects;

  • Employment Services Act 2014;

  • Labour Relations Amendment Bill 2017;

  • LRA Memorandom of Objects;

  • National Minimum Wage Bill;

  • Impact Assessment.

    Click here to download the zipped files.">


  • Legislation Update

    New Minimum Wages: Wholesale & Retail, and Farm and Forestry Worker Sectors  

    New Minimum Wages: Wholesale and Retail Sector: 01 February 2018 to 31 January 2019

    Please follow the link to download the new minimum wages

    New Minimum Wages: Farm and Forestry workers Sectors: 01 March 2018 to 28 February 2019

    Please follow the link to download the new minimum wages



    Domestic Workers

    Domestic Workers Wage Increase

    The Minister of Labour, on 15 December 2017, gazetted new minimum wage rates for the Domestic Worker Sector effective from 1 January 2018.

    To view the amended wage schedules click here.

    Hospitality Sector

    Hospitality sector minimum wage for 2017/2018 by Lloyd Ramutloa -- last modified 2017-07-03 13:11 3 July 2017 The minimum wage for South Africa's vulnerable sector of hospitality has been revised upward with effect from 01 July 2017.

    The new Hospitality Sectoral Determination which governs minimum wage rate in the sector will be effective until 30 June 2018.

    The minimum rate for employers with 10 or less employees will be a monthly wage of R3 193.12 (2016/2017: R2 959.35); a weekly rate of R736.92 (2016/2017: R689.97); and an hourly rate of R16.36 (2016/2017: R15.17).

    The new wages for employers with more than 10 employees will be a minimum monthly rate of R3 559.10 (2016/2017: R3 298.52); a weekly rate of R821.34 (2016/2017: R761.25); and an hourly rate of R18.25 (2016/2017: R16.91).

    The latest increase was arrived at using the consumer price index of 6.4 percent plus 1.5 percent. The total increase is 7.9 percent.

    Minimum Wages Farm, Forestry 2017

    Wholesale & Retail Wage Increase

    COIDA

    Compensation for Occupational Injuries and Diseases Act 130 of 1993, as amended

    Amendment of Schedule 4 of Act 130 of 1993 :
    Manner of calculating compensation
    GN 448 39931/15-04-2016
    Annual increases in medical tariffs for medical services providers
    GenN 256/GG 39955/26-04-2016
    GenN 257/GG 39956/26-04-2016
    Increase in monthly pensions
    GN 447/GG 39931/15-04-2016
    Increase of maximum amount of earnings on which the assessment of an employer shall be calculated
    GN 449/GG 39931/15-04-2016
    Rules, Forms and Particulars
    GN 444/GG 39928/15-04-2016


    Earnings threshold

    I, Mildred Nelisiwe Oliphant, Minister of Labour, in terms of Section 6(3) of the Basic Conditions of Employment Act, No. 75 of 1997, (the Act), determine that all employees earning in excess of R205 433.30 (two hundred and five thousand, four hundred and thirtythree rand, thirty cents) per annum be excluded from sections 9, 10, 11, 12, 14, 15, 16, 17(2), 18(3) of the Act with effect from 1 July 2014.

    For the purposes of this notice:

    "Earnings" means the regular annual remuneration before deductions, i.e. income tax, pension, medical and similar payments but excluding similar payments (contributions) made by the employer in respect of the employee: Provided that subsistence and transport allowances received, achievement awards and payments for overtime worked shall not be regarded as remuneration for the purpose of this notice.

    MN OLIPHANT, MP

    MINISTER OF LABOUR

    STAATSKOERANT, 1 JULIE 2014 No. 37795 3

    This gazette is also available free online at www.gpwonline.co.za

    GOVERNMENT NOTICE