Labour Law decided in the South African Courts (Highlights and updated 1997 to May 2015)

Unfair Labour Practice:

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demotion was when something to which the employee was entitled was withdrawn and that this could include status as well as a condition of employment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 endeavor 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 commissioner’s awards had been highly limited. In essence, the function of the court would be to affirm commissioner’s 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

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