RECENT DEVELOPMENTS IN S.A. EMPLOYMENT LAW

In E Tradex (PTY) Ltd t/a Global Trade Solution v Finch & others (E Tradex) (2022) 43 ILJ 2727 (LAC) at paras 10 to 12, the Labour Appeal Court ( LAC ), clarified the effect of the Practice Manual in dealing with the archiving of files in the following terms: ‘The use of the term ‘archived’ is peculiar to the Labour Court Practice Manual. In the general civil courts, for example, the failure to prosecute an appeal timeously results in the appeal having lapsed. The effect of that is that the case shall not be dealt with by a court unless an application to reinstate the appeal is made. It is, in our view, plain that the archiving of a Labour Court case was intended to have the identical effect; indeed, clause 16.3 goes even further, to equate the consequence of an archiving of a case to be understood to mean the application is ‘dismissed’, albeit that a procedure exists to reinstate the case on good cause shown. It must therefore follow that the archived case acquires a peculiar st

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