RECENT DEVELOPMENTS IN S.A. EMPLOYMENT LAW

Clarification regarding the statutory requirements around the provision of security when brining an application for review the review of an arbitration award, as provided for in terms of section 145 of the Labour Relations Act, Act 66 of 1995 ( the LRA ). The relevant provisions of section 145 of the LRA read as follows: ‘(1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award. (3) The Labour Court may stay the enforcement of the award pending its decision. (7) The institution of review proceedings does not suspend the operation of an arbitration award unless the applicant furnishes security to the satisfaction of the court in accordance with sub section (8). (8) Unless the Labour Court directs otherwise, the security furnished as contemplated in subsection (7) must – (a) in the case of an order of reinstatement or re-employment, be equivalent t...

In Nel v Oudtshoorn Municipality & another (2013) 34 ILJ 1737 (SCA) at paras 8 and 10, the Supreme Court of Appeal ( SCA ) held that: ‘… In Jackson v Fisher's Foils Ltd [1944] 1 All ER 421 Humpreys J quoted with approval the following dictum in Dixon (William) Ltd v Patterson 1943 SC (J) 78 as to the meaning of 'reinstatement': “The natural and primary meaning of "to reinstate" as applied to a man who has been dismissed (ex hypothesi without justification) is to replace him in the position from which he was dismissed, and so to restore the status quo ante the dismissal”… From the provisions of the LRA and the cases I have cited it is clear that by reinstating a dismissed employee the employer does not purport to conclude a fresh contract of employment. The employer merely restores the position to what it was before the dismissal...’ Further, and in Myers v National Commissioner of the SA Police Service & another (2014) 35 ILJ 1340 (LC) at para 14, the ...

Section 191(12) of the Labour Relations Act, Act 66 of 1995 (LRA) stipulates that: ‘An employee who is dismissed by reason of the employer's operational requirements may elect to refer the dispute either to arbitration or to the Labour Court if- (a) the employer followed a consultation procedure that applied to that employee only, irrespective of whether that procedure complied with section 189; (b) the employer‘s operational requirements lead to the dismissal of that employee only; or (c) the employer employs less than ten employees, irrespective of the number of employees who are dismissed’ In as far as the election contained in section 191(12) of the LRA is concerned the LAC in Bracks NO and Another v Rand Water & another (Rand Water) (2010) 31 ILJ 897 (LAC) at para 9, in relation to the before-amendment section 191(12) explained that: ‘S 191(12) does not expressly pronounce upon the jurisdiction of the CCMA. What the section provides is that when a single employee disput...

The dual p urpose of civil contempt proceedings Prior, to Secretary of the Judicial Commission of Inquiry into Allegations of Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State v Zuma & others 2021 (5) SA 327 (CC) (Zuma) , the substratum of case law which dealt with civil contempt orders, made it clear that a court cannot be approached in civil contempt proceedings where solely a punitive order is sought. As such a court would in the normal course grant a coercive order, i.e. an order compelling compliance failing which a punitive order would be imposed. The Constitutional Court ( CC ) in Zuma , in both the majority and minority judgments gave effect to these principals. The majority judgment however provided for a specific exception to these principals, i.e. where it is a foregone conclusion that a coercive order would yield no reward. This principal should in itself precludes the court a quo from handing down a purely punit...

The Labour Appeal Court (LAC) in Western Platinum Refinery Ltd v Hlebela (2015) 36 ILJ 2280 (LAC)  at para 20 held that:   '. . . an appropriate way to discipline an employee who has actual knowledge of the wrongdoing of others or who has actual knowledge of information which the employee subjectively knows is relevant to unlawful conduct against the employer’s interests would be to charge that employee with a material breach of the duty of good faith, particularising the knowledge allegedly possessed and alleging a culpable non-disclosure.' The LAC thus made it clear that an employee's duty of good faith arises once he obtains knowledge and not only when the employer perform an inquiry.  The duty further extends to the employee's own misconduct. The LAC however stressed that a duty of good faith is not something which can arise through the employee's negligence.  An employee can thus not be held liable where he should reasonably have known about misc...