по Marius Scheepers 1 года назад
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PA3/20
Ruselo v Sutherland Transport and Others (PA3/20) [2022] ZALAC 1; [2022] 4 BLLR 347 (LAC) (18 January 2022)
[33] Therefore, the citation of an employer in proceedings in those forums by its tradename, or a name, or names it also uses for its business, is not incorrect or fatal. The employer would be bound by an award made in that name.
[29] In terms of Rule 14 of the High Court Rules, it is permissible to cite a firm, partnership or association by its tradename. Even though that Rule does not specifically refer to a trust, the High Court has since held, in essence, that the provisions of Rule 14 also apply to a trust which conducts its business under a tradename, or a name other than that by which it is otherwise known [Cupido v Kings Lodge Hotel 1999 (4) SA 257 (E) at 265B-H.]
[31] Simply using the trusts name and not, at least expressly, citing the actual trustees of the trust, is also not fatal, since it is accepted that reference to the trust in litigation may be understood as a reference to the trustees for the time being of the trust, whomever they might be[4].[32] While there is no specific rule applicable to proceedings in the CCMA or Bargaining Councils similar to Rule 14 (High Court), and Rule 20 (Labour Court) there is no reason why the position in those forums should be any different. Proceedings there are required to be simple, streamlined and not complicated by legal formality and procedure. Further, it is more likely that an employee, even if assisted by a Union, may be more familiar with the name generally used by his employer, rather than with the technical name, or true nature of the employer entity.
[40] Even though the Labour Court could not correct the award, it did not have to, because on the facts, properly determined as assessed, there was nothing to correct. In addition to making the award an order of court by virtue of its power to grant the alternative relief, it merely had to declare that the award was binding on the trust, through its trustees for the time being, and that the court order was enforceable against them in their capacities as such and executable against the assets of the trust.
JR 586/18
PAUL BERNARD JOSEPH vs KILLARNEY ENGINEERING (Andrew Mentis)
[16] The lack of jurisdiction emanates from the fact that no notice was given to the liquidator before continuing with the proceedings. Furthermore, nocondonation was sought and granted as contemplated in section 359(2)(b) of the Companies Act. The effect of this is that the current proceedings are considered to be abandoned.
Section 359(2)(a) of the 1973 Act provides that within four weeks after the appointment of the liquidator give the liquidator not less than three weeks notice in writing before continuing or commencing the proceedings.
[18] There is also another difficulty presented by the liquidation and subsequent deregistration of a company. Once such a company is deregistered, it is deprived of its legal existence. Deregistration puts an end to the existence of a company. Its corporate personality ends in the same way that a natural person ceases to exist on death. Once there has been deregistration there is obviously no purpose in a corporate post-mortem and no one would have the[19] I must mention that I am not aware of its current status and as such will not pronounce on this aspect.[20] In the premises, the current application falls to be dismissed for lack of jurisdiction. This is due to the applicants failure to comply with the provisions of section 359(2) of the Companies Act as read with item 9 of Schedule 5 of the new Companies Act.
CA12/19
Wilson v Prinsloo; In re: Prinsloo v Expidor 163 CC t/a The League of Gentleman and Another (CA12/19) [2021] ZALAC 10 (31 May 2021)
[18] From these dicta, it is clear that, absent the application of s 65 of the Close Corporation Act, the respondent bore the onus to show that Expidor had been run by the appellant on the basis of fraud or that there was some other dishonest or improper purpose in the manner in which its affairs were conducted: in particular, with the intent or purpose of avoiding a legal obligation. [19] In the founding affidavit there is simply no evidence offered to make such a finding. No more than a series of unsubstantiated conclusions are contained in the respondents affidavit including:Wilson at all times and for a number of years assumed personal responsibility for the persistent losses and liabilities
[16] In Cape Pacific Limited v Lubner Controlling Investments (Pty) Ltd and others [1995] ZASCA 53; 1995 (4) SA 790 (A) 203, Smalberger JA citing dicta from Dadoo Ltd and others v Krugersdorp Municipal Council 1920 AD 530 to the effect that, given particular circumstances a court might disregard corporate personality. The decision is based on having regard to the substance rather than the form of things Thus Smalberger JA said:
Whatever the position, it is probably fair to say that a court has no general discretion simply to disregard a companys separate legal personality whenever it considers it just to do so. (at para 29)
J2127/19
Joe Singh Group of Companies v Commission for Conciliation, Mediation and Arbitration and Others (J2127/19) [2019] ZALCJHB 299 (1 November 2019)
[5] In opposing the application, the first consideration is that Krugel raised a preliminary point to the effect that the founding affidavit and the application as a whole was defective on account of the affidavit not being in compliance with the provisions of the Regulations issued in terms of Section 10 of the Justices of Peace and Commissioner of Oaths Act.[Act 16 of 1963] The basis of this objection was that the deponent did not sign the affidavit before the Commissioner of Oaths. Annexure K1 to the answering affidavit, which is exactly the same page as with the application before the Court, illustrates that the last page of the founding affidavit was not signed and dated by the deponent, whilst a Commissioner of Oaths had signed, dated and affixed his/her stamp. The founding affidavit filed with the Court however is signed but not dated by the deponent, even though it is commissioned.
See S v Munn 1973 (3) 734 (NC) at 737H; S v Msibi 1974 (4) 821 (T); Lohrman v Vaal Ontwikkelingsmaatskappy 1979 ALL SA 416 (T) at 423
[7] The procedure for the attestation of oaths is set out in the regulations which are of delegated legislation. The regulations are directory only, and it has also been held that where an affidavit has not been properly attested, it may still be valid provided there has been substantial compliance with the formalities in such a way as to give effect to the purpose of the legislation. In the end, a Court has a discretion to refuse or to receive an affidavit attested otherwise than in accordance with the regulations
The issue however is that to the extent that is necessary, it can be accepted that the corrected affidavit is in substantial compliance with the provisions of the regulations.
JS 201/17
Moloney and Others v 3D Design Close Corporation t/a Muga Design (In Liquidation) and Others (JS 201/17) [2019] ZALCJHB 55 (15 March 2019)
[7] There are no specific guidelines as to when a court would pierce the veil as each case would depend on a close analysis of its facts[2]. It is however accepted that there is no general discretion enjoyed by the courts to disregard the separate juristic personality of a legal entity, and that in the same vein, the piercing of the corporate veil is an exceptional procedure, which will be invoked in circumstances where there is fraud or other improper conduct in the establishment, or the use of the company/entities, or the conduct of its affairs
Amlin (SA) Pty Ltd v Van Kooij 2008 (2) 558 (C); Airport Cold Storage [Pty] Ltd v Ebrahim and Others [2007] ZAWCHC 25; 2008 (2) SA 303 [C]; The Shipping Cooperation of India Ltd v Evdoman Corporation and Another [1993] ZASCA 167; 1994 (1) SA 550 [A] at 566C-F; Bargaining Council for the Furniture Manufacturing Industry, Kwazulu- Natal v UKD Marketing CC and Others 5 [2013] 2 BLLR 119 (LAC); (2013) 34 ILJ 96 (LAC) at para 21, where it was held that;
It is now possible to examine appellants argument about lifting the corporate veil. In Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd, Smalberger JA noted that: [o]ver the years it has come to be accepted that fraud, dishonesty or improper conduct could provide grounds for piercing the corporate veil. At 803 G He warned that it is undoubtedly a salutary principle that our Courts should not likely disregard a companys separate personality but should strive to give effect to and uphold it. To do otherwise would negate and undermine the policy and principles that underpin the concept of separate corporate personality and the legal consequences that attached to it. At 803 H The learned judge of appeal then went on to say that, where fraud dishonesty or other improper conduct was to be found, then further considerations would influence the overall assessment as to whether the corporate veil should be pierced. In this connection, the court would proceed to examine the substance rather than the form of the adopted structure in order to determine whether there has been a misuse of corporate personality which would justify it being disregarded. Smalberger JA then noted that fraud or improper conduct was not the only basis by which the corporate veil could be lifted. Citing Gower (The Principles of Modern Company Law (5ed at 133)) at 804 C it also seems clear that a company can be a facade even though it was not originally incorporated with any deceptive intentions; what counts is whether it has been used as a facade at the time of the relevant transactions.
[8] When the veil of incorporation is pierced, the protective covering of the limited liability presented by the company structure is stripped, which may result in its shareholders or directors being held personally liable. The primary purpose of piercing the corporate veil would simply be to prevent the abuse of the corporate personality by directors and shareholders of the company.
JR1975/2012
Holand v Du Toit t/a Bee Consult and Another (JR1975/2012) [2016] ZALCJHB 516 (15 December 2016)
Section 20 (9) of the Companies Ac
Ex Parte Gore NO and Others 18127/2012) [2013] ZAWCHC 21; [2013] 2 All SA 437 (WCC) (13 February 2013)
seven principles (at paras 159-164): 1. Ownership and control of a company are not of themselves sufficient to justify piercing the veil; 2. The court cannot pierce the veil, even when no unconnected third party is involved, merely because it is perceived that to do so is necessary in the interests of justice; 3. The corporate veil can only be pierced when there is some impropriety; 4. The companys involvement in an impropriety will not by itself justify a piercing of its veil: [furthermore] the impropriety must be linked to use of the company structure to avoid or conceal liability; 5. It follows. that if the court is to pierce the veil, it is necessary to show both control of the company by the wrongdoer and impropriety in the sense of a misuse of the company as a device or faade to conceal wrongdoing; 6. A company can be a faade for such purposes even though not incorporated with deceptive intent, the relevant question being whether it is being used as a faade at the time of the relevant transaction(s). 7. And the court will pierce the veil only as far as is necessary to provide a remedy for the particular wrong which those controlling the company have done. In other words, the fact that the court pierces the veil for one purpose does not mean that it will necessarily be pierced for all purposes.
Knew debt was owning, or where it was reckless, sale completed with fraudulent purpose, abuse of corporate personality, causual link
JA29/2020
Ekhuruleni Metropolitan Municipality v Mandosela and Others (JA29/2020) [2021] ZALAC 14; [2021] 10 BLLR 994 (LAC); (2021) 42 ILJ 2168 (LAC) (2 July 2021)
[33] In dealing with the question whether Hlaniki was a TES, the arbitrator found as follows;The deeming clause embodied insection198A (3) (.) of the LRA can obviously only apply when there is a tripartite relationship between the workers, a temporary employment services provider, a client. The internship contract which was concluded between, on the one hand Hlaniki and the Gauteng Enterprise Propeller, and on the other hand the applicants, did not create a tripartite relationship. The applicants were employed by Hlaniki and the GEP, not by the Municipality.
JR1754/18
Mandonsela and Others v South African Local Government Bargaining Council and Others (JR1754/18) [2020] ZALCJHB 45 (13 February 2020)
Proctor and Gamble Manufacturing SA (Pty) Ltd and Another v Mokadi and Others (JR895/16) [2018] ZALCJHB 80 (2 February 2018).
What is a temporary employment service?[34] In terms of section 198 of the LRA, a temporary employment service is defined as follows:''(1) In this section, temporary employment services means any person who, for reward, procures for or provides to a client other persons -(a) who perform work for the client; and(b) who are remunerated by the temporary employment service.''
[35] In the case of Proctor and Gamble Manufacturing SA (Pty) Ltd and Another v Mokadi and Others[7] (Proctor and Gamble) this Court held in respect of temporary employment services:''[16] In terms of section 198A (3) an employee performing a temporary service is the employee of the temporary employment services provider. However, an employee not performing such temporary service for the client is deemed to be an employee of the client, and the client is deemed to be his employer. Such an employee is subject to the provisions of section 198B, employed on an indefinite basis by the client.[17] In order for an arbitrator to determine whether the temporary service employees are to be deemed employees (in terms of section 198A(3)), the relationship between the parties must be one of a client and temporary employment service provider.''
[36] In Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others[8] (''Assign Services'') the Constitutional Court stated as follows:''[73] In evaluating these arguments, it is necessary first to consider the triangular nature of the TES/client/placed employee relationship. The triangular relationship exists to split the functions of the employer between the TES and the client for a fee. However, the functions for which the TES is responsible seldom relate to the actual work of the employee. Their primary responsibilities are to pay and manage the human resources component of employment, while the day-to-day management, work allocations and performance assessment in most circumstances are conducted by the client only. The client is also responsible for the employees working conditions because employees are placed on the clients premises. Importantly, the client also has the power to discontinue the employees services. In a sense, the TES is merely the third party that delivers the employee to the client. The employee does not contribute to the business of the TES except as a commodity. And, on a practical level, the contract between a TES and a placed worker seldom constitutes an employment contract.[74] In LAD Brokers, the Labour Appeal Court held that the common law does not necessarily regard the TES as the employer of the placed workers. In truth, a TES can operate without concluding contracts of employment with the workers it places. All that is required for the TES to constitute a statutory employer in terms of section 198 of the LRA is that it places workers with clients for a fee and remunerates those workers. Of course, this is less onerous than the test for establishing conventional employment either at common law or in terms of the relevant definitions. It is therefore incorrect to contend that a TES is usually in an employment relationship with workers it places with clients.''
[37] The Labour Court in Mandla v LAD Brokers (Pty) Ltd[9] correctly pointed out that a contract between an employee and a temporary employment service creates a unique and sui generis tripartite relationship in which the employee renders personal services not to the employer but to the employer's client. Even though a client can influence certain employment decisions in such a temporary employment service's arrangement, the parties, by section 198, may structure their relationship ''in this way even if the principal purpose is to make the labour broker (and not its client) the person who is responsible for managing employees and ensuring compliance with the various statutes that regulate employment rights.''[10]
[38] The service level agreement concluded between the Third Respondent and the Fourth Respondent, following a tender process, appointed the Fourth Respondent as the project management company to manage the Lungile Mtshali Poverty Alleviation Project on behalf of the Third Respondent for the period 11 December 2015 until 11 December 2018. A reading of this agreement shows that the Fourth Respondent is not operating as a temporary employment service, but as a project manager. The Fourth Respondent's core business as agreed upon by the Applicants is not the provision of labour. If this is not the Fourth Respondent core business, it cannot be regarded as a Temporary Employment Service Provider
[40] The Applicants submit that the Third Respondent is the client, despite the Third Respondent not being a party to the agreement concluded between the Fourth Respondent and the Applicants. The Applicants therefore submit that a commercial or contractual relationship between the employer and the client is unnecessary for a temporary employment service to be found to exist. I cannot agree with this submission. There is no basis for this Court to disregard the express wording of an agreement or to ignore the practical application of the argument.
J1391/19
National Union of Mineworkers v Bidvest Protea Coin (Pty) Ltd and Others (J1391/19) [2019] ZALCJHB 161 (28 June 2019)
Lebowa Platinum Mines Ltd v Hill (1998) 19 ILJ 1112 (LAC)
There can be no doubt that the Labour Courts conclusions in Nape, that an agreement between a labour broker and the client, which provided the client with the power to remove the employee from its premises for any reason whatsoever, was against public policy and an unlawful breach of the employees right to fair labour practices in terms of the LRA, were correct. That approach is in line with that in Lebowa Platinum Mines Ltd v Hill[16], which set out the principles which an employer should follow when faced with a demand for the dismissal or removal of an employee by a client.
JR136/16
Chep South Africa vs CCMA
JA96/15
NUMSA v Assign Services and Others (JA96/15) [2017] ZALAC 44; (2017) 38 ILJ 1978 (LAC); [2017] 10 BLLR 1008 (LAC) (10 July 2017)
whether the labour broker remains the employer of the workers placed with a client notwithstanding the triggering of section 198A(3)(b)(i) court called upon to decide whether the triggering of section 198A(3)(b)(i) giving rise to either a dual or sole employment relationship.
The purpose of these protections in the context of s198A is to ensure that the deemed employees are fully integrated into the enterprise as employees of the client. The sole employer interpretation does not ban the TES. Its purpose is to restrict the TES to genuine temporary employment. The TES remains the employer of the placed employee until the employee is deemed the employee of the client. The plain language of s198A(3)(b) of the LRA, interpreted in context unambiguously supports the sole employer interpretation and is in line with the purpose of the amendment, the primary object of the LRA and protects the rights of placed workers. The Labour Court misdirected itself in its interpretation of s198A(3)(b) of the LRA. Appeal upheld. Labour Courts judgment set aside.
[37] In order to ascertain who the employer of the placed worker in that position for the purposes of the LRA is, one is enjoined to resort to the provisions of s198A (3)(b). Such a worker is therefore deemed to be the employee of the client and the client deemed to be the employer of the worker. Furthermore, a worker in this situation is, subject to the provisions of s198B, employed by the client of the TES on an indefinite basis.
[40] The protection against unfair dismissal and unfair discrimination in the context of s198A of the LRA should not be interpreted to support the contention that the deemed employees are employed by both the TES and client. The protection is a measure to ensure that these employees are not treated differently from the employees employed directly by the client. The purpose of these protections in the context of s198A is to ensure that the deemed employees are fully integrated into the enterprise as employees of the client. The protection provided for takes into account the fact that the contractual relationship between the client and the placed worker does not come about through a negotiated agreement or through the normal recruitment processes of the client. The employment relationship is created by a statutory deeming clause. Hence the placed workers become employed by the client for an indefinite period and on the same terms and condition to the employees of the client performing the same or similar work. The dual or parallel employer interpretation is therefore not consonant with the context of s198A and the purpose of the amendments.
JS815/16
Association for Mine Workers and Construction Union ("AMCU") and Others v Oil Separation Services Northern Province CC (JS815/16) [2017] ZALCJHB 3 (11 January 2017)
some seven months outside of the 90-day period
Saloojee & another v Minister of Community Development1965 (2) SA 135 (A) 141B-H. See also Silplat (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others [2008] ZALC 33; [2011] 8 BLLR 798 (LC) at paragraphs 54 to 58
Regal v African Superslate (Pty) Ltd 1962 (3) SA 18 (AD)
this court came to the conclusion that the delay was due entirely to neglect of the applicants attorney, and held that the attorneys neglect should not, in the circumstances of the case, debar the applicant, who was himself in no way to blame, from relief. I should point out, however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney. There is a limit beyond which a litigant cannot escape the results of his attorneys lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of this court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact this court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the rules of this court was due to neglect on the part of the attorney. The attorney, after all, is the representative the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a rule of court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are. A litigant, moreover, who knows, as the applicants did, that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand over the matter to his attorney and then wash his hands of it. If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney and expect to be exonerated of all blame; and if, as here, the explanation offered to this court is patently insufficient, he cannot be heard to claim that the insufficiency should be overlooked merely because he has left the matter entirely in the hands of his attorney. If he relies upon the ineptitude or remissness of his attorney, he should at least explain that none of it is to be imputed to himself. That has not been done in this case. In these circumstances I would find it difficult to justify condonation unless there are strong prospects of success.
JR 1110/13
Business Unity South Africa v Minister of Higher Education and Training and Others (JR 1110/13) [2015] ZALCJHB 285 (7 August 2015)
[44] A key factor to determine whether a party has a direct and substantial interest is whether any relief is claimed against it.[7] The Supreme Court of Appeal held in Gordon v Department of Health, KwaZulu-Natal[8] that 'there was no potential prejudice to the successful appointees as no relief was directed against them.'[9]
City of Johannesburg and Others v The South African Local Authorities Pension Fund and Others 20045/2014 [2015] ZASCA 4 (9 March 2015) (Not yet reported) at para 9.
Labour brokers could no longer hide behind the shield of commercial contracts to circumvent legislative protections against unfair dismissal. A contractual provision that provided for automatic termination of the employment contract and that shielded slavery with a mink coat was now prohibited and statutorily invalid.
When the amount was due upon a contract and the exact amount due was simply a matter for calculation from figures in books, the claim was a liquidated one. The appellants profit share claim therefore was a liquidated debt as it was capable of speedy and prompt ascertainment by means of a simple arithmetical calculation as soon as the audited financial statements became available.
Was never conciliated by the relevant forum, thus depriving the Court from Jurisdiction.
old contract not terminated
TES not employer
although his assignment was terminated, his employment was not.
No waiver when applied second round
Employee expressly asked to disclose
E/r not opportunity to make informed decision
no grievance hearing
The court held that s 200A created a rebuttable presumption of employment provided that any one or more of the factors listed in the section were present. Given that the right to fair labour practices was a fundamental right in terms of s 23 of the Constitution and that the LRA, which gave legislative discretion to that right, similarly provided fundamental rights accruing to all persons who fell within the ambit of the definition of 'employee', the waiver signed by the first respondent was of no force and effect. Employees could contract out of the statutory protections conferred by labour legislation only when that legislation permitted them to do so. It could not seriously be disputed that the first respondent was economically dependent on the applicant: although she was permitted to do other work she was not permitted to engage in the selling of property for any other agent. As all of the factors governing her employment met one or more of the criteria set out in s 200A, it had to be presumed therefore that she was an employee of the applicant and that the applicant was her employer.
No control and supervision of their hours of work. Applicants were economically dependent on the work they received from the Department, this was in itself not sufficient.
held that they were not employees
The repetitive references in the contract to the nature of the relationship and the painstaking effort to define it, left no doubt that the intention of the parties was to establish relationships on a different footing to what had existed previously in their employment relationships.
dealings with the company through close corporations of which they were the principal member and employed their own employees to render the contractual services. Deducted PAYE from the amounts payable to the owner driver, it did so in pursuance of a responsibility imposed upon it by the income tax legislation.
Other caselaw cited
ABSA Bank Ltd v Fouche 2003 (1) SA 176 (SCA),
not the norm that one contracting party need tell the other all he knows about anything that may be material
JR2220/08
Fipaza v Eskom Holding Ltd & Others
not required by e/r to disclose previous dismissal
set aside
There was no evidence that he had been removed as such and the contention by the first respondent that no resolution had been taken to remove them from the board had to be accepted.
s 71 of the Companies Act 71 of 2008.
had a photocopy of his identity document and his birth certificate showing that he was a South African
Managing Director
Bothe Director and employee
everyone has the right to fair labour practices. The LAC held that the term everyone,
the same protection to dignity
the extent of supervision and control; whether the employee forms an integral part of the organization of the employer; and the extent to which the employee was economically dependent upon the employer.
Control and organization test
Dominant impression
sick leave and family responsibility leave. Salary advice state employee; 3 months notice on resignation
Municipal employee; All appointments under that section must be for a fixed term
The reality approach does not however mean that the contractual expression by the parties as contained in their agreement should be ignored. Thus the court in Lad Brokers (Pty) Ltd v Mandla (2001) 22 ILJ 1813 (LAC), held that in determining whether a relationship exists between the parties, the terms of the relevant contract should be scrutinised.
that there was no principle in company law precluding directors from appointing one another to an office of profit. Held that the mere appointment of a director as CEO did not constitute an invalid contract of employment.
the appointment could not be regarded as ultra vires and that the employment contract was valid
applicants had since passed away and the employer objected to any order being granted in their favour because their estates had not made formal application and were not properly represented. In the case of three individuals letters of authority i.t.o. s 18 of the Administration of Estates Act
grant the application for substitution made from the Bar
in truth and in reality it was one of employer and employee.
it was expected that she come clean with the tax authorities on matters pertaining to her remuneration and taxation
dominant impression test
the employee was entitled to claim his compensation award personally notwithstanding that he was an unrehabilitated insolvent
JR2395/19
O`Reilly v Commission for Conciliation, Mediation and Arbitration, Johannesburg and Others (JR2395/19) [2022] ZALCJHB 33 (28 February 2022)
[24]. It remained common cause that the employee did not lodge a grievance in this matter. She also did not approach a Court with competent jurisdiction with a claim of unlawful deductions.
[21]. In Gold One Limited,[Gold One Limited v Madalani and Others (2020) 41 ILJ 2832 (LC).] the Labour Court dealt with the requirement of intolerability by stating that intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employees tolerance to a breaking point.[Ibid, paragraph [46]][22]. This high threshold of intolerability applies to both employees and employers. In Booi,[Booi v Amathole District Municipality and Others (2022) 43 ILJ 91 (CC); [2022] 1 BLLR 1 (CC).] an employer who sought to avoid the reinstatement of an employee on grounds of the intolerability expressed in section 193(2)(b) of the Labour Relations Act 66 of 1995 (the LRA) was met with this response by the Constitutional Court:[40] It is accordingly no surprise that the language, context and purpose of section 193(2)(b) dictate that the bar of intolerability is a high one. The term intolerable implies a level of unbearability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour. This high threshold gives effect to the purpose of the reinstatement injunction in section 193(2), which is to protect substantively unfairly dismissed employees by restoring the employment contract and putting them in the position they would have been in but for the unfair dismissal. And, my approach to section 193(2)(b) is fortified by the jurisprudence of the Labour Appeal Court and the Labour Court, both of which have taken the view that the conclusion of intolerability should not easily be reached, and that the employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability.[ Ibid, paragraph [40].]
JR625/20
Shoprite Checkers (Pty) Ltd v Nkosi and Others (JR625/20) [2022] ZALCJHB 4 (7 February 2022)
[27] In Gold One Limited v Madalani and Others,[[2020] ZALCJHB 180; (2020) 41 ILJ 2832 (LC); [2021] 2 BLLR 198 (LC) at para 46.] this Court sanctioned a well-established principle that intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious, rude and uncompromising superior who may treat employees badly. Put otherwise, intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employees tolerance to a breaking point.
This principle was recently concretised by the Constitutional Court, albeit in a context of reinstatement, in Booi v Amathole District Municipality and Others,[(2022) 43 ILJ 91 (CC) at para 40.] where it was stated that:It is accordingly no surprise that the language, context and purpose of section 193(2)(b) dictate that the bar of intolerability is a high one. The term intolerable implies a level of unbearability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour. This high threshold gives effect to the purpose of the reinstatement injunction in section 193(2), which is to protect substantively unfairly dismissed employees by restoring the employment contract and putting them in the position they would have been in but for the unfair dismissal. 35 And, my approach to section 193(2)(b) is fortified by the jurisprudence of the Labour Appeal Court and the Labour Court, both of which have taken the view that the conclusion of intolerability should not easily be reached, and that the employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability. (Emphasis added)
[28] By parity of reasoning, intolerability should not be easily reached in a case of constructive dismissal. To clothe the Commissioner with the necessary jurisdiction, the employee must provide a substantial explanation that is buttressed by concrete evidence to prove the intolerability that led to his/her resignation. Mr Nkosi obviously failed to meet this threshold. It follows that the Commissioners finding that Mr Nkosi was dismissed is untenable.
Legal principles and application[12] It is well accepted that in a case of constructive dismissal, the enquiry turns on the jurisdiction of the CCMA. This principle was elucidated in Solid Doors (Pty) Ltd Commissioner Theron and Others,[4] where the Labour Appeal Court (LAC) held that:Having established what the requirements are for a constructive dismissal, it is necessary to make the observation at this stage of the judgment that the question whether the employee was constructively dismissed or not is a jurisdictional fact that - even on review - must be established objectively. That is so because if there was no constructive dismissal - the CCMA would not have the jurisdiction to arbitrate. A tribunal such as the CCMA cannot give itself jurisdiction by wrongly finding that a state of affairs necessary to give it jurisdiction exists when such state of affairs does not exist. Accordingly, the enquiry is not really whether the commissioner's finding that the employee was constructively dismissed was unjustifiable. The question in a case such as this one - even on review - is simply whether or not the employee was constructively dismissed. If I find that he was constructively dismissed, it will be necessary to consider other issues. However, if I find that he was not constructively dismissed, that will be the end of the matter and the commissioner's award will stand to be reviewed and set aside. (Emphasis added)[13] It follows, as stated in HC Heat Exchangers (Pty) Ltd v Araujo and Others,[5] that where the issue to be considered on review is about the jurisdiction of the CCMA or bargaining council, it is not about a reasonable outcome. What happens is that the Labour Court is entitled, if not obliged, to determine the issue of jurisdiction on its own accord In doing so, the Labour Court determines the issue de novo in order to decide whether the determination by the arbitrator is right or wrong.[14] In the same way, the test for constructive dismissal is trite and the pivotal dictum is that in Solid Doors,[6] where the LAC referred to the following prerequisites to prove a case of constructive dismissal:14.1. First, the employee must have terminated the contract of employment;14.2. Second, the reason for termination of the contract must be that continued employment has become intolerable for the employee; and14.3. Third, the employer must have been made continued employment intolerable.[15] Significantly, the LAC put emphasis on the fact that, if one of the above requirements is absent, constructive dismissal is not established. By way of example, there is no constructive dismissal if an employee terminates the contract of employment without the two other requirements present. There is also no constructive dismissal if the employee terminates the contract of employment because he cannot stand working in a particular workplace or for a certain company and that is not due to any conduct on the part of the employer.[7][16] In National Health Laboratory Service v Yona and Others,[8] the LAC defined the test for proving a constructive dismissal as an objective one. In essence, [t]he conduct of the employer toward the employee and the cumulative impact thereof must be such that, viewed objectively, the employee could not reasonably be expected to cope with. Resignation must have been a reasonable step for the employee to take in the circumstances.[9] It is of no consequence that the employee should have had no choice but to resign to avail himself to a claim of constructive dismissal; providing the resignation was a reasonable step to escape the intolerable working environment.[10]
JR 1585/19
Serrem v Commission for Conciliation, Mediation and Arbitration and Others (JR 1585/19) [2021] ZALCJHB 200 (29 July 2021)
[29] The term intolerable, implies a situation that is more than can be tolerated or endured; or insufferable. It is something which is simply too great to bear, not to be put up with or beyond the limits of tolerance. It will need to be said that when objectively, reasonably and sensibly judged, an employee could not be expected to put up with it, that no reasonable employee could be expected to tolerate or put up with it.[Solidarity on behalf of Van Tonder v Armaments Corporation of SA (SOC) Ltd and others [2019] 8 BLLR 782 ((2019) at paras 39 and 40] Intolerability extends beyond a difficult, unpleasant or stressful working environment or employment conditions.[]
JR578/14
Bosch v JDG Group (Pty) Ltd and Others (JR578/14) [2021] ZALCJHB 171 (21 July 2021)
[87] Tritely, an enquiry in a constructive dismissal case turns on the jurisdiction of the CCMA, a principle established by the Labour Appeal Court (LAC) in Solid Doors (Pty) Ltd v Commissioner Theron & others,[(2004) 25 ILJ 2337 (LAC) at para 29.] where it was held: Having established what the requirements are for a constructive dismissal, it is necessary to make the observation at this stage of the judgment that the question whether the employee was constructively dismissed or not is a jurisdictional fact that - even on review - must be established objectively. That is so because if there was no constructive dismissal - the CCMA would not have the jurisdiction to arbitrate. A tribunal such as the CCMA cannot give itself jurisdiction by wrongly finding that a state of affairs necessary to give it jurisdiction exists when such state of affairs does not exist. Accordingly, the enquiry is not really whether the commissioner's finding that the employee was constructively dismissed was unjustifiable. The question in a case such as this one - even on review - is simply whether or not the employee was constructively dismissed. If I find that he was constructively dismissed, it will be necessary to consider other issues. However, if I find that he was not constructively dismissed, that will be the end of the matter and the commissioner's award will stand to be reviewed and set aside.
[88] In Western Cape Education Department v General Public Service Sectoral Bargaining Council & others,[35] the LAC pertinently stated that:In terms of s 186(1)(e) of the LRA, dismissal means that 'an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee'. It is clear from the provisions of this section that in any proceedings concerning any unfair dismissal dispute, the employee must establish the existence of the dismissal if this is placed in dispute. In the case of SA Rugby Players Association & others v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v SA Rugby Players Association Union & Another,[(2008) 29 ILJ 2218 (LAC) at paras 39-41.] the following was stated in relation to a dismissal in terms of s 186(1)(b) of the LRA:'[39] The issue that was before the commissioner was whether there had been a dismissal or not. It is an issue that goes to the jurisdiction of the CCMA. The significance of establishing whether there was a dismissal or not is to determine whether the CCMA had jurisdiction to entertain the dispute. It follows that if there was no dismissal, then the CCMA had no jurisdiction to entertain the dispute in terms of s 191 of the Act.The CCMA is a creature of statute and is not a court of law. As a general rule, it cannot decide its own jurisdiction. It can only make a ruling for convenience. Whether it has jurisdiction or not in a particular matter is a matter to be decided by the Labour Court. The question before the court a quo was whether on the facts of the case a dismissal had taken place. The question was not whether the finding of the commissioner that there had been a dismissal of the three players was justifiable, rational or reasonable. The issue was simply whether objectively speaking, the facts which would give the CCMA jurisdiction to entertain the dispute existed. If such facts did not exist the CCMA had no jurisdiction irrespective of its finding to the contrary..
[89] It follows, as stated in HC Heat Exchangers (Pty) Ltd v Araujo and Others,[[2007] ZALC 72; [2020] 3 BLLR 280 (LC) at paras 35 to 39.] that:where the issue to be considered on review is about the jurisdiction of the CCMA or bargaining council, it is not about a reasonable outcome. What happens is that the Labour Court is entitled, if not obliged, to determine the issue of jurisdiction on its own accord In doing so, the Labour Court determines the issue de novo in order to decide whether the determination by the arbitrator is right or wrong.
[90] Turning to the merits, the test for constructive dismissal has been set out in a number of authorities and, as mentioned in Solid Doors,[Conti Print CC v Commission for Conciliation, Mediation and Arbitration and Others [2015] 9 BLLR 865 (LAC) at paras 7 to 9.] there are three requirements for constructive dismissal to be established and they are that: The first is that the employee must have terminated the contract of employment. The second is that the reason for termination of the contract must be that continued employment has become intolerable for the employee. The third is that it must have been the employee's employer who had made continued employment intolerable. All these three requirements must be present for it to be said that a constructive dismissal has been established. If one of them is absent, constructive dismissal is not established. Thus, there is no constructive dismissal if an employee terminates the contract of employment without the two other requirements present. There is also no constructive dismissal if the employee terminates the contract of employment because he cannot stand working in a particular workplace or for a certain company and that is not due to any conduct on the part of the employer.19
[91] Put differently, as held by the LAC in National Health Laboratory Service v Yona & others,[(2015) 36 ILJ 2259 (LAC) at para 30; see also Bakker v Commission for Conciliation, Mediation & Arbitration & others (JR1078/14) (2018) ZALCJHB 13; [2018] 6 BLLR 597 (LC); (2018) 39 ILJ 1568 (LC) at paras 5 to 16.]a constructive dismissal occurs when an employee resigns from employment under circumstances where he or she would not have resigned but for the unfair conduct on the part of the employer toward the employee, which rendered continued employment intolerable for the employeeThe test for proving a constructive dismissal is an objective one. The conduct of the employer toward the employee and the cumulative impact thereof must be such that, viewed objectively, the employee could not reasonably be expected to cope with. Resignation must have been a reasonable step for the employee to take in the circumstances. (Emphasis added)
[107] Whilst Labuschagnes management style may be perceived as aggressive; aggressiveness does not equate to intolerability as enunciated in the cases mentioned above. From the papers before me, Labuschangnes aggressive management style was far from intolerable in the sense that all his actions were aimed at ensuring that clearly defined targets were met. Achieving targets and budget was a core responsibility of the branch managers duty and if the Applicant could not cope with reaching these targets it was not the fault of Labuschagne, whose duty it was to ensure that the Applicant achieves her target.
[124] In this context, it does not avail an employee to unjustifiably claim constructive dismissal where such an employee has suitable available alternative remedies or mechanisms to resolve the cause of the intolerability, before resorting to a resignation[HC Heat Exchangers 4 (2004) 25 ILJ 2195 (LAC) at para 23, supra n 7 at para 52 and 54. ]
[126] Put otherwise, intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employees tolerance to a breaking point.[Solidarity on behalf of Van Tonder v Armaments Corporation of SA (SOC) Ltd & oOthers (2019) 40 ILJ 1539 (LAC) at para 39. ]
CA12/2020
Cape Peninsula University of Technology v Mkhabela (CA12/2020) [2021] ZALAC 30 (27 September 2021)
[14]...It is not necessary to deal with the issues of whether the email was the proximate cause of the harassment in determining the unfair discrimination claim. The applicant was harassed in the Boardroom and in the building that day. She was singled out and was the target of threatening behaviour by students and workers on that day. On the Courts finding above, she was also the subject of harassment at the Sanlam meeting. This harassment was directed at her because of her views on the policy direction the University was taking which was not being undertaken in line with the precepts governing the institution. It seems to me that this arbitrary ground of discrimination on which she relies is palpably one that can be understood as one which has attributes which can demean the dignity of an individual. Experiencing harassment for her views, in the academic environment can be seen as an aggravating factor.
[8] According to the respondent, her comments enraged Fourie who came to me like a raging bull pointing at me and gesticulating and the Acting Vice Chancellor (Professor Volmink) sat there and did nothing. This harassing trend on the part of Professor Fourie continued unabated and he continued to behave as the anointed chief barking instructions and interfering with the HC portfolio that has nothing to do with him. I felt abused and harassed by Professor Fourie and given the time of his behaviour I cannot but attribute this to the Acting Vice Chancellor as it never manifested in the previous regime. She also testified that, as Fourie moved aggressively towards her, she had push her head backwards in order to prevent his finger from reaching her forehead. She considered that she was now working in hostile environment and had been degraded by this experience.
[7] It appears that the respondent was disturbed by the security strategy which had been outlined by Fourie, including the use of dogs to curb the unrest on the campus. She responded by asking a series of questions including how could we in 2016 be talking of the security strategies of 1976? and who would be responsible for implementing a strategy that was developed outside of the line function as IDFM was not involved and whether the applicant could present a IT strategy which is not in the applicants portfolio.
[24] The essence of the claim brought by the respondent in terms of the ill-drafted statement of claim was that her claim was predicated on the existence of a constructive dismissal. This component of her case was not upheld by the court a quo and there was no cross-appeal in respect of this finding. On its own and based on the case set out in the statement of claim, there is a sufficient ground to dismiss the appeal. The evidence upon which the court a quo made its finding of harassment were based essentially on the Sanlam meeting and the contents of Fouries email. As indicated, neither of these pieces of evidence would justify a finding of discrimination on one of the three grounds pleaded by the the respondent, namely, belief, conscience or political opinion. Even though an analogous ground was not pleaded the court a quo strayed into this area. As indicated on the strength of Harksen v Lane, however, there would be no basis by which to extend the category of analogous grounds to any opinion, belief or aspect of conscience outside of that which I set out earlier in this judgment.
3] Sitting in the court a quo Rabkin-Naicker J held, insofar as the alleged dismissal dispute was concerned, that no dispute had been referred to conciliation, and there was no evidence that the true nature of the dispute was an automatically unfair dismissal, constructive or otherwise. Accordingly, the learned judge found that she did not have jurisdiction to decide the dismissal claim. However, she found that the respondent had suffered unfair discrimination within the meaning of s 5 and s 6 of the Employment Equity Act 55 of 1998 (the EEA) and that the respondent should thus be awarded in an amount equivalent to 13 months of her salary.
JR 1109/15
Gold One Limited v Madalani and Others (JR 1109/15) [2020] ZALCJHB 180; (2020) 41 ILJ 2832 (LC) (9 September 2020)
[47] Furthermore, Ms Madalani failed to show that Gold One is to blame for making her continued employment intolerable. In this context, it does not avail an employee to unjustifiably claim constructive dismissal where such an employee has suitable available alternative remedies or mechanisms to resolve the cause of the intolerability, before resorting to a resignation.[25] In the present instance, Ms Madalani obviously shunned the counselling session that was meant to resolve the cause of the alleged intolerability.[48] Ms Madalani also failed to make good her threat to vindicate her rights through legal processes. It does not assist her case to allege that she had addressed her concerns with the senior executives and, as such, she did afford Gold One an opportunity to address her complaints when she obviously circumvented the very process that was meant to address her complaints.[49] It follows that Ms Madalani failed to show that the employment relationship had become so intolerable that she had no other reasonable option other than to tender her resignation.
JR 2196/18
Tiso Black Star Group (Pty) Ltd v Ndabeni and Others (JR 2196/18) [2020] ZALCJHB 187 (28 August 2020)
[102] The Courts have made it clear that an employer should be made aware of the alleged intolerable conditions and be afforded an opportunity to address and rectify it. An employee cannot merely resign and claim constructive dismissal while other options are available and as I have already alluded to the test that this Court has to apply, which is whether a reasonable alternative existed. An employee cannot resign without affording the employer an opportunity to rectify the causes of his or her complaints and successfully claim constructive dismissal.
[104] The LAC made it clear that an employee should make use of alternative remedies which include an internal grievance procedure. It was not for the arbitrator to jump to the conclusion that because the Respondent was not given money on 3 May 2018, the Applicant would not come to her assistance if she lodged a formal grievance.
JR 1603/17
South African Local Government Association v Commission for Conciliation Mediation and Arbitration and Others (JR 1603/17) [2020] ZALCJHB 126 (13 August 2020)
[24] Obviously, Mr Khanyile muddled the issues. To the extent that he was adamant that the alleged corrupt activities made his continued employment intolerable, he ought to have afforded SALGA and implicated officials an opportunity to address his complaints. He failed to do so because he perceived his superiors as culprits and perpetrators of corruption. Even so, he could not explain his failure to avail himself to the internal protected disclosure procedure given the nature of his complaints, a recourse he was obviously aware of; and had already explored externally by approaching the Public Protector. In Johnson v Rajah NO and Others,[12] referred to with approval in HC Heat Exchangers,[13] it was stated that:The Courts made it clear that an employer should be made aware of the alleged intolerable conditions and be afforded an opportunity to address and rectify it. An employee cannot merely resign and claim constructive dismissal while other options are available and as I already alluded to the test is whether a reasonable alternative existed. An employee cannot resign without affording the employer an opportunity to rectify the causes of his or her complaints and successfully claim constructive dismissal.
[26] In HC Heat Exchangers[(JR33/15) [2017] ZALCJHB 25 (26 January 2017) at para 74.] it was emphasised that:where there is a grievance process available to the employee which would, if applied, resolve the cause of complaint, the employee must follow it. If the employee does not follow it, the employee cannot as a matter of principle claim constructive dismissal, unless the employee proves that there exists truly exceptional circumstances that may serve to absolve the employee from this obligation. And for the employee to subjectively claim that he or she has no confidence in the grievance outcome or that the employer would not reform, cannot suffice as such exceptional circumstances.[27] To my mind, Mr Khanyile failed to show that the employment relationship had become so intolerable that there was no reasonable option other than to tender his resignation.
JR 1619/2018
Centre for Autism Research and Education CC v Commission for Conciliation, Mediation and Arbitration and Others (JR 1619/2018) [2020] ZALCJHB 109; (2020) 41 ILJ 2623 (LC); [2020] 11 BLLR 1123 (LC) (19 June 2020)
[45] In short, what the evidence discloses is a workplace operated by a narcissistic personality whose offensive and unwelcome conduct had the effect of creating a toxic working environment in which discrimination, degradation and demeaning behaviour became the norm. I have no hesitation in finding that the nature and extent of the workplace bullying suffered by the third and fourth respondents was such that for the purposes of s 186 (1) (e) of the LRA, their continued employment was rendered intolerable.
[39] More than 10 years ago, Prof Alan Rycroft wrote an article in the Industrial Law Journal (see Rycroft Workplace Bullying: Unfair Discrimination, Dignity Violation or Unfair Labour Practice (2009) 30 ILJ 1431) in which he sought to give content to the concept of workplace bullying, suggested that workplace bullying constituted a form of harassment. He said the following:Workplace harassment impacts in different ways. Sexual harassment impacts on an employees dignity, bodily integrity, job security and personal safety. Racial harassment impacts on an employees sense of worth, dignity and empowerment. Workplace bullying has been linked to a feeling of incompetence in handling the job, to a sense of alienation from colleagues, to anxiety that there will be no promotional recognition, to job security, to feelings of inadequacy, to knock on tensions in personal relationships, and to depression.[40] Rycroft suggests the following definition of workplace bullying:[Harassment]is generally seen as persistent and unwelcome conduct which is hostile or offensive to a reasonable person and induces a fear of harm and demeans, humiliates or creates a hostile and intimidating environment was calculated to induce submission by actual or threatened adverse consequences.Taking these generic aspects of harassment, it has been suggested that bullying refers to any unfavourable or offensive conduct on the part of a person or persons, which has the effect of creating a hostile workplace environment In these terms, bullying includes a wide range of insulting, demeaning or intimidating behaviour that lowers their self-esteem or self-confidence of an employee.[41] Rycroft identifies a number of specific behaviours, which include persecution in various forms, threats and inspiration of fear, degradation, e.g. sexual harassment, deliberate insults, hypercritical negative responsible attitude (ridicule, unfriendliness, etc.), offensive administrative penal sanctions which are suddenly directed against an individual employee without any objective cause, explanations or efforts at jointly solving any underlying problems. Rycroft goes on to observe that being humiliated or demeaned lies at the heart of the concept of dignity, and that the public humiliation of an employee is almost certain to destroy or seriously damage the relationship of trust and confidence between employer and employee.
[48] The evidence is clear that despite a term of the employees employment contracts to the effect that employees may lodge any grievance with their immediate manager/director, this was not an option open to them. In particular, the person against whom their grievance was directed was Riback herself, the applicants sole member and director.
[50] To the extent that the applicant contends that the employees willingness to work out the notice period is incompatible with any notion of intolerability of future employment, the evidence clearly discloses the reasons for the employees election to work their one months notice period. The reason they chose to do so was out of their sense of duty towards the learners in their care, and the need for a smooth transition so as to minimise any harm that might be caused to them. Instead, both employees were escorted from the applicants premises by security guards within five minutes after their resignation.
JR74/17
Madzhie v General Public Service Sectoral Bargaining Council and Others (JR74/17) [2019] ZALCJHB 304 (8 November 2019)
Asara Wine Estate and Hotel (Pty) Ltd v Van Rooyen and Others (2012) 33 ILJ 363 (LC) at para 32.
constructive dismissal is not for the asking. With an employment relationship, considerable levels of irritation, frustration and tension inevitably occur over a long period. None of these problems suffice to justify constructive dismissal. An employee, such as appellant, must provide evidence to justify that the relationship has indeed become so intolerable that no reasonable option, save for termination is available to her.
[32] Also, Mr Mantsha, the third respondent attorney of record, submitted that the applicants claim of constructive dismissal in untenable in the light of the tone of her resignation letter and paragraph 7 of her exit interview letter where she clearly state that:In anyway, I really enjoyed working with a lot of people I have met within the Department. I wish to thank the Minister for giving me the opportunity to serve in her office and I will be prepared to work in this Department if I am given another opportunity. I wish to thank the Chief of Staff who according to me is a very capable man. For these months I have learnt a lot from him. I am in particular impressed by the efficiency of the HR Department.
JR155/16
HC Heat Exchangers (Pty) Ltd v Araujo and Others (JR155/16) [2019] ZALCJHB 275; [2020] 3 BLLR 280 (LC) (8 October 2019)
Solid Doors (Pty) Ltd v Commissioner Theron and Others (2004) 25 ILJ 2337 (LAC) at para 28. See also Agricultural Research Council v Ramashowana NO and Others (2018) 39 ILJ 2509 (LC) at para 11; Conti Print CC v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 2245 (LAC) at para 9; Bandat v De Kock and Another (2015) 36 ILJ 979 (LC) at para 49; Johnson v Rajah NO and Others (JR33/15) [2017] ZALCJHB 25 (26 January 2017) at para 38.
there are three requirements for constructive dismissal to be established. The first is that the employee must have terminated the contract of employment. The second is that the reason for termination of the contract must be that continued employment has become intolerable for the employee. The third is that it must have been the employee's employer who had made continued employment intolerable. All these three requirements must be present for it to be said that a constructive dismissal has been established. If one of them is absent, constructive dismissal is not established.
However, and at the heart of this part of the enquiry is establishing what is intolerable. In my view, intolerability is far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious, rude and uncompromising superior who may treat employees badly.[26] Even a breach of the employment contract, deductions from salary, or unfair disciplinary action would not per se establish intolerability.[27]
Solidarity on behalf of Van Tonder v Armaments Corporation of SA (SOC) Ltd and Others (2019) 40 ILJ 1539 (LAC) at para 39.
The word intolerable implies a situation that is more than can be tolerated or endured; or insufferable. It is something which is simply too great to bear, not to be put up with or beyond the limits of tolerance Similarly, and in Bakker v Commission for Conciliation, Mediation and Arbitration and Others(2018) 39 ILJ 1568 (LC) at paras 12 13.[] the Court said:Intolerable is not defined in the LRA, but it is a strong word which suggests a high threshold: In this regard, Grogan, in his Workplace Law, states:[T]he requirement that the prospect of continued employment be intolerable ... suggests that this form of dismissal should be confined to situations in which the employer behaved in a deliberately oppressive manner.;
Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC) at 984D-G. This dictum was referred to with approval in Old Mutual Group Schemes v Dreyer and Another (1999) 20 ILJ 2030 (LAC) at paras 16 17.
When an employee resigns or terminates the contract as a result of constructive dismissal such employee is in fact indicating that the situation has become so unbearable that the employee cannot fulfil what is the employee's most important function, namely to work. The employee is in effect saying that he or she would have carried on working indefinitely had the unbearable situation not been created. She does so on the basis that she does not believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If she is wrong in this assumption and the employer proves that her fears were unfounded then she has not been constructively dismissed and her conduct proves that she has in fact resigned.
[54] In short, and where there is a grievance process in the employer available to the employee which would, if applied, resolve the cause of complaint, the employee must follow it. If the employee does not follow it, the employee cannot as a matter of principle claim constructive dismissal, unless the employee proves that there exists truly exceptional circumstances that may serve to absolve the employee from this obligation.[42] And for the employee to subjectively claim that he or she has no confidence in the grievance outcome or that the employer would not reform, cannot suffice
[56] Although not in itself decisive, further considerations that would work against a conclusion that intolerability exists is where the employee resigns on notice,[50] where the employee later sought to withdraw the resignation,[51] where the employee continued to work for the employer for some time after the events that it is alleged caused the intolerability to arise,[52] or where the employee imposes a condition that must be met by the employer against which the employee would resign willingly and then the condition is not met with the employee therefore resigning and claiming constructive dismissal.[53]
It has also been held that where an employee resigns in the face of disciplinary or poor work performance proceedings, it would be very difficult to successfully claim constructive dismissal.[54]
This is found in section 60 of the Employment Equity Act (EEA)[59] which requires that the discriminatory conduct must first be brought to the attention of the employer and that the employer be afforded an opportunity to deal with it, before the employer can be held liable.[60] The point is that intolerable and oppressive behaviour perpetrated by one employee upon another can only render an employer culpably responsible and liable for such conduct if the employer knows of it and is given a chance to deal with it, but then fails to do so properly and fairly.
[83]...on the evidence, he had never raised a formal complaint about this in the past and never instituted grievance proceedings in this regard.
JR1449/2017
Billion Group (Pty) Ltd v Ntshangase and Others (JR1449/2017) [2018] ZALCJHB 211; (2018) 39 ILJ 2516 (LC) (20 June 2018)
[12] Further in National Health Laboratory Service v Yona & Others, the LAC repeated some of the principles governing constructive dismissals:[28] Section 186(1)(e) of the LRA provides that a (constructive) dismissal occurs when 'an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee'. On constructive dismissal, this court, in Jooste v Transnet Ltd t/a SA Airways stated the following:'In considering what conduct on the part of the employer constitutes constructive dismissal, it needs to be emphasized that a "constructive dismissal" is merely one form of dismissal. In a conventional dismissal, it is the employer who puts an end to the contract of employment by dismissing the employee. In a constructive dismissal it is the employee who terminates the employment relationship by resigning due to the conduct of the employer. As Lord Denning said in Woods v WM Car Services (Peterborough) (1982) IRLR 413 (CA) at 415: "The circumstances [of constructive dismissal] are so infinitely various that there can be, and is, no rule of law saying what circumstances justify and what do not. It is a question of fact for the tribunal of fact. ..."' [29] In Murray v Minister of Defence, 8 the Supreme Court of Appeal said:'[11] That substance, as was pointed before the 1995 LRA, is that the law and the constitution impose "a continuing obligation of fairness towards the employee on ... the employer when he makes decisions affecting the employee in his work". The obligation has both a formal procedural and substantive dimension; it is now encapsulated in the constitutional right to fair treatment in the workplace.[12] These cases have established that the onus rests on the employee to prove that the resignation constitutes a constructive dismissal: in other words, the employee must prove that the resignation was not voluntary, and that it was not intended to terminate the employment relationship. Once this is established, the enquiry is whether the employer (irrespective of any intention to repudiate the contract of employment) had without reasonable and proper cause conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust with the employee. Looking at the employer's conduct as a whole and in its cumulative impact, the courts have asked in such cases whether its effect, judged reasonably and sensibly, was such that the employee could not be expected to put up with it.' [2][30] In other words, a constructive dismissal occurs when an employee resigns from employment under circumstances where he or she would not have resigned but for the unfair conduct on the part of the employer towards the employee, which rendered continued employment intolerable for the employee.In passing, it should be mentioned that in Yona, the LAC evidently did not consider that a resignation on one months notice could not be construed as a constructive dismissal. Consequently, the dictum in Volschenk v Prima Africa (Pty) Ltd [3] in which the Labour Court found on the facts before it that it was inconceivable an employee would resign on two months notice if the employer had made conditions intolerable, should not be interpreted as establishing a general principle that resignation on notice is a bar to a claim of constructive dismissal. That said, resignation on notice can have a bearing on whether a resignation will be construed as constructive dismissal having regard to the factors the employee claims made their employment intolerable.
[13] In Pretoria Society for the Care of the Retarded v Loots the LAC characterised the substantive requirements of the second part of the test thus:'When an employee resigns or terminates the contract as a result of constructive dismissal such employee is in fact indicating that the situation has become so unbearable that the employee cannot fulfil what is the employee's most important function, namely to work. The employee is in effect saying that he or she would have carried on working indefinitely had the unbearable situation not been created. She does so on the basis that she does not believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If she is wrong in this assumption and the employer proves that her fears were unfounded then she has not been constructively dismissed and her conduct proves that she has in fact resigned.Where she proves the creation of the unbearable work environment she is entitled to say that by doing so the employer is repudiating the contract and she has a choice either to stand by the contract or accept the repudiation and the contract comes to an end; (emphasis added)
[14] Lastly, in Murray v Minister of Defence the SCA stressed, amongst other things, the importance of the employer wrongfully creating the intolerable conditions.[13] It deserves emphasis that the mere fact that an employee resigns because work has become intolerable does not by itself make for constructive dismissal. For one thing, the employer may not have control over what makes conditions intolerable. So the critical circumstances 'must have been of the employer's making'. But even if the employer is responsible, it may not be to blame. There are many things an employer may fairly and reasonably do that may make an employee's position intolerable. More is needed: the employer must be culpably responsible in some way for the intolerable conditions: the conduct must (in the formulation the courts have adopted) have lacked 'reasonable and proper cause'. Culpability does not mean that the employer must have wanted or intended to get rid of the employee, though in many instances of constructive dismissal that is the case.[4]
JA7/16
Nokeng Tsa Taemane Local Municipality v Louw NO and Others (JA7/16) [2018] ZALAC 37 (17 October 2018)
Western Cape Education Department v General Public Service Sectoral Bargaining Council and Others [2014] 10 BLLR 987 (LAC); and Murray v Minister of Defence 2009 (3) SA 130 (SCA) at para 67.
[13] The test for determining whether an employee was constructively dismissed is well-established. The onus rests on the employee to prove that the resignation was not voluntary, constituted a constructive dismissal and was not intended to terminate the employment relationship. The enquiry is whether the employer without reasonable and proper cause conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee. The court must look at the employers conduct as a whole and determine whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it. The test does not require that the employee have no choice but to resign, but only that the employer should have made continued employment intolerable
[64] I thus conclude that the individual respondents are not employees of the applicant. In summary, my reasons for so concluding are based on what the written contracts between the parties specifically provide for and contain, the lack of existence of any direct control and supervision normally associated with an employment relationship, the fact that the individual respondents are not integrated into the organization of the applicant as is the case with all the applicants other employees, and finally the absence of sufficient economic dependency. Overall, the dominant impression created by the contracts and the real relationship between the parties is that of independent contractors.
[37]In cases where Section 200A does not apply, and the parties have concluded a written agreement establishing the nature of their relationship, it is this agreement that must be the default position in establishing the nature of the relationship. The onus would, in such case, be on the party seeking to contradict this agreement to show that the agreement does not reflect the true relationship between the parties, which is in reality not one of an independent contractor, but one employment.
LAD Brokers (Pty) Ltd v Mandla (2001) 22 ILJ 1813 (LAC) at para 15. See also Niselow v Liberty Life Association of Africa Ltd (1998) 19 ILJ 752 (SCA) at 754C-D; Linda Erasmus Properties Enterprise (Pty) Ltd v Mhlongo and Others (2007) 28 ILJ 1100 (LC) at para 16.
The legal relationship between the parties is to be determined primarily from a construction of the contract between them.
Commission for Conciliation, Mediation and Arbitration v MBS Transport CC and Others; Commission for Conciliation, Mediation and Arbitration v Bheka Management Services (Pty) Ltd and Others (2016) 37 ILJ 2793 (LAC) at para 15.
It is trite that, when interpreting any document, regard must be had to the language used as well as the context under which the document saw the light of the day.
Dempsey v Home and Property (1995) 16 ILJ 378 (LAC) at 384F-G.
The contract between the parties made no reference to leave, sick leave or any other terms or conditions customarily forming part of a contract of service. The appellant was not even required to tender a medical certificate in respect of periods of absence due to illness or incapacity.
Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) at para 15.
Contractual autonomy is part of freedom informing the constitutional value of dignity, and it is by entering into contracts that an individual takes part in economic life.In this sense freedom to contract is an integral part of the fundamental right referred to in section 22. Section 22 of the Constitution guarantees "[e]very citizen ... the right to choose their trade, occupation or profession freely" reflecting the closeness of the relationship between the freedom to choose a vocation and the nature of a society based on human dignity as contemplated by the Constitution.
State Information Technology Agency (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 2234 (LAC)
For this reason, when a court determines the question of an employment relationship, it must work with three primary criteria:1 an employer's right to supervision and control;2 whether the employee forms an integral part of the organization with the employer; and3 the extent to which the employee was economically dependent upon the employer.... whether or not a person is or was an employee of another is a question that must be decided on the basis of the realities - on the basis of substance and not form or labels - at least not form or labels alone. In this regard it is important to bear in mind that an agreement between any two persons may represent form and not substance or may not reflect the realities of a relationship
JR 416 / 20
Mystra (Pty) Ltd t/a Silverton Spar and Tops v Thoka N.O. and Others (JR 416 / 20;JR 417 / 20;JR 418 / 20;JR 420 / 20;JR 421 / 20;JR 422 / 20;JR 423 / 20) [2022] ZALCJHB 290 (14 October 2022)
[7]...These alleged contraventions included the failure to pay employees the prescribed minimum wages, the failure to provide employees with written particulars of employment and pay slips, the failure to fully pay employees for overtime worked, and a failure to keep proper records of time worked and remuneration paid to employees.
[14] As it promised it would, the DOL then went over to the next step, and proceeded to make application in terms of Section 73 of the BCEA to make the compliance orders concerned, arbitration awards. This was done firstly by the service of a BCEA Form 15 on GFT, and the filing thereof with the CCMA.[5] The service and filing of this Form was then followed by a further application, containing more particularity, served and filed on 22 November 2019. It was common cause that Rule 31B of the Rules for the Conduct of Proceedings in the Commission for Conciliation, Mediation and Arbitration (CCMA Rules),[6] regulated such application under section 73 of the 8CEA. The actual contents of this application by the DOL will be dealt with later in this judgment.
[16] GFT never referred a dispute as contemplated by section 69(5) of the BCEA, to the CCMA,[7] to challenge the compliance orders. There was also no replying affidavit filed by the DOL, to GFT's objection under Rule 318(4) and (5) of the CCMA Rules.
[27] The 1 January 2019 amendments of the BCEA also brought in a further innovation where it comes to compliance orders. In terms of an amended section 69(5), the employer is given the right to itself refer a dispute concerning a compliance order to the to the CCMA.[21] In terms of section 69(6): 'A dispute referred to the CCMA by the employer in terms of subsection (5) must be dealt with in terms of section 73'.
[28]...One can only surmise that what is meant by section 69(6) is that the CCMA would have jurisdiction to finally determine the matter by way of an arbitration award, and that in the event of the dispute referred to the CCMA in terms of section 69(5) being determined against the employer, the CCMA may then make the compliance order an arbitration award under section 73. That is the only interpretation of section 69(6) that would make sense.
[30]...Section 73 itself only requires two pre-requisites to exist to enable a CCMA commissioner to be able to exercise his or her discretion to make the compliance order an arbitration award, which is proof of service of the compliance order on the employer and the absence of a dispute under section 69(5) of the BCEA having been pursued by the employer. Provided the procedural pre-requisites under Rule 318(2) are met, a CCMA commissioner would be entitled to simply determine the matter on the application papers, and without a hearing, once the time limits for filing pleadings have expired. But where an employer has decided to oppose the application using its entitlement under Rule 318(4) and (5), the situation is quite different, and will be further addressed below.
[31] As opposed to the above process under section 73 of the BCEA (as read with Rule 31B of the CCMA Rules), where an employer seeks to raise a dispute about a compliance order in terms of section 69(5) of the BCEA, that employer must refer the dispute to the CCMA by way of the service and filing of the ordinary Form 7.11 referral form used to refer a variety of disputes to the CCMA, as contemplated by Rule 10(1) of the CCMA Rules. The Form 7.11 has been amended to contain a specific tick block for a dispute under section 69(5) of the BCEA. Such a dispute must then be first conciliated by the CCMA, and if conciliation fails to resolve the dispute, it must be finally determined by way of arbitration.[28] At arbitration, the CCMA would then have the power to determine the dispute on a basis similar to how the Labour Court would have been entitled to determine appeals under the repealed section 72 of the BCEA, namely to uphold the compliance order and then make it an arbitration award under section 73 of the BCEA, or set it aside, or vary / amend it.
[32] Therefore, and in my view, where there is a proper compliance order issued by an inspector of the D0L under section 69(1) of the BCEA, and this compliance order is sought to be disputed by an employer, the employer has two options available to it to do so. Each of these options would have its own, and separate, process. There is no obligation on the employer to follow the one process, or the other, and it remains the choice of the employer which process to follow. It must however be said that ultimately, both processes would end up with the same result.[33] Firstly, the employer can proactively and immediately, and before the expiry of the time limit given by the DOL in the compliance order to comply with the compliance order, refer a dispute to the CCMA in terms of section 69(5) of the BCEA, which dispute is then determined by way conciliation, and failing that by way of arbitration, in the ordinary course. That gives the parties the benefit of the option of conciliation by the CCMA and the possible facilitated settlement of the matter.[29] But where conciliation fails, what follows is trial (arbitration) proceedings with viva voce evidence and the proper discovery of documents, and all the benefits associated with such kind of proceedings, especially where there may be disputed facts.[30][34] Secondly, and if the employer has chosen not to proactively pursue a dispute referra1 under section 69(5) of the BCEA, that employer would still be entitled to oppose enforcement proceeding brought by the D0L under section 73 of the BCEA. That would however still entail submitting a proper answering affidavit setting out all the grounds for its defence to the compliance order being made an arbitration award. These proceedings are clearly motion proceedings, in which the affidavits and supporting documents attached to affidavits would constitute the evidence upon which the matter is ultimately to be determined. And just like any other motion proceedings, factual disputes must be resolved in line with the principles as set out in Plascon Evans Paints v Van Riebeeck Paints[31].
36] In my view, and when confronted with an opposed application under Rule 31B, it is incumbent upon an allocated commissioner to conduct a proper assessment of the affidavits and documents filed, especially where it is clear that there is a factual dispute. In the case of material factual disputes, especially where these disputes concern the very issue as to whether there was actual compliance by the employer with the compliance order, the appropriate course of action would be the convening of a hearing where these disputes of fact can be fully ventilated with the benefit of proper argument being presented by the parties. In my view, it would not be appropriate for the commissioner to determine the application only on the papers in such a case, without convening a hearing.
J 3581/18
Ngwenya v Trustees for the time being of Sishen Iron Ore Company Community Development Trust and Another (J 3581/18) [2022] ZALCJHB 246 (17 August 2022)
[7] The application dismissed by this Court was launched in terms of section 77 (3) of the Basic Conditions of Employment Act (BCEA)[4], in the circumstances where Lekhesa knew that there is no contract of employment, upon which the said claim may be predicated. In the Courts view, this is not an ordinary error of law that may be expected from a practitioner. This is egregious and it is not readily to be expected from a reasonable practitioner. When the application was launched, Ngwenya was dismissed. Surely a reasonable practitioner, would have heeded the call that the matter is moot and hopeless, particularly under section 77 (3) of the BCEA.
[6] In Mashishi, this Court per Van Niekerk J felicitously stated the following:[15] By this he (Justice Rodgers) means that counsel must be able to formulate a coherent argument comprising a series of logical propositions which have a reasonable foundation in law or on the facts and which, if they all accepted by the court will result in a favourable outcome, even if counsel believes that one or more of the essential links are likely to fail. But counsel acts improperly when she is quite satisfied that one or more of them will fail. In particular, there is an ethical obligation on counsel to ensure that only genuine and arguable cases are ventilated and that this be achieved without delay
C 148/18; JS 49/18; JS 67/18 JS 68/18; JS 338/18; JS 195/18
Solidarity obo Strydom and Others v State Information Technology Agency SOC Ltd (C 148/18; JS 49/18; JS 67/18 JS 68/18; JS 338/18; JS 195/18) [2022] ZALCJHB 95 (9 May 2022)
[33] In passing, I am unable to agree with Steenkamp AJ to the extent that he seemed to find fault with the interpretation of section 187(2)(b) as adopted in Waco[(1998) 19 ILJ 1573 (LC) at paras 30 31..]. In light of the observation expressed in Cash Paymaster[26], which I agree with, it is inconceivable that an employee could successfully rely on both the normal and the agreed retirement age as these scenarios are mutually exclusive.
[34] The consequence of allowing the employee to work beyond an agreed or normal retirement age was well articulated by Snyman AJ in Bank v Finkelstein t/a Finkelstein and Associates:[(2004) 25 ILJ 1671 (LAC) at para 24; see also: Bank v Finkelstein t/a Finkelstein and Associates (JS219/15) [2016] ZALCJHB 428 (unreported judgment delivered on 26 October 2016) at para 25.]where an employee works beyond an agreed or normal retirement age. The harsh reality is that such an employee is in effect working on borrowed time. The employer, unless it can be proven that the employer specifically waived its rights to apply the retirement age, would remain entitled to at any point after the employee had attained the normal or agreed retirement age place the employee on retirement. In Rubenstein v Price's Daelite (Pty) Ltd[(2002) 23 ILJ 528 (LC) at para 23.] the Court held, with specific reference to Section 187(2)(b), that: It says a dismissal is fair if the employee has reached retirement age, not when he reaches it.' In Rockliffe v Mincom (Pty) Ltd,[(2008) 29 ILJ 399 (LC) at para 26.] the Court approved of the above ratio in Rubenstein and further said:[30]Accordingly in an automatically unfair dismissal claim the enquiry ends at the point where, if a defence of having reached an agreed age is raised, such age has been reached. What happened afterwards is immaterial unless a defence of waiver is successfully raised. (Emphasis added)[35] In Kutuma and Others v Limpopo Legislature,[(JS886/09) [2014] ZALCJHB 357 (unreported judgment delivered on 15 September 2014) at paras 35-37.] confronted with similar circumstances, Lagrange J pertinently observed that:[35] It may be questionable if this would apply in the case of employees who have only reached the age when they are eligible for early retirement, as an early retirement date could hardly be considered a normal retirement date for the purposes of s 187(2)(b). However, it is difficult to see why the respondent would not be entitled to rely on clause 4.8.1 in the case of employees who had reached the normal retirement age but had not yet reached the compulsory retirement age. There is nothing inconsistent in having a normal retirement age, which after it is reached, permits either party to terminate the employment relationship coupled with a mandatory retirement age, at which stage retirement must take place[36] If clause 4.8.1 could only have been intended to refer to the age of compulsory retirement one would have expected it to refer to the compulsory retirement age rather than using the broader term retirement age. Even if the status of the 28 May resolution in so far as it might amend the conditions governing the applicants retirement entitlements is debatable, and if I assume in their favour that they are entitled to rely on the Conditions of Service Policy issued in 2001, those conditions do not seem to give them alone the choice of deciding when to retire after age 60. By virtue of clause 4.8.1 the employer may also decide, once an employee has reached the age of 60 but not yet 65, to rely on the employee having reached the normal retirement age to terminate their employment.[37] I appreciate that the applicants might have hoped they would continue to work until the compulsory retirement age, but under their conditions of service they were always vulnerable to being retired after reaching the age of 60. I also wish to emphasise that because I have assumed in the applicants favour that they were entitled to rely on the conditions of service which they claimed to be entitled to enforce, namely those which prevailed prior to the 28 May resolution, it is not necessary to make a finding on whether that resolution validly amended those conditions. (Emphasis added)[36] In Marais v Aveng Grinaker Lta,[32] based on the on the straightforward test endorsing the test in in Waco, Moshoana J observed, correctly in my view, that:Clearly, once the day of reckoning arrives reaching the normal or agreed retirement age the clock cannot be reversed. The only way to reverse it is to novate. In the nature of novation, the obligation must still be extant at the time of replacement. In my view, once the horse bolts the retirement age is reached the retirement age is not capable of being novated. I understand this to be the point made by the LAC in Karan Beef supra. (Emphasis added)[37] In light of the above authorities, there is no merit in the applicants contention that SITA's failure to engage the applicant employees with a view to reach an agreement on a new retirement age post age 60 years amounted to a unilateral determination of a new retirement date in breach of the Pension Fund Rules; alternatively, given the circumstances of this present matter, SITA tacitly agreed to allow the applicant employees to remain in employment until the age of 67 years.[38] In Bothma-Batho Transport (Edms) Bpk v S Bothma and Seun Transport (Edms) Bpk,[33] elaborating on the principles articulated in Natal Joint Municipal Pension Fund, Wallis JA stated:Whilst the starting point remains the words of the document, which are the only relevant medium through which the parties have expressed their contractual intentions, the process of interpretation does not stop at a perceived literal meaning of those words, but considers them in the light of all relevant and admissible context, including the circumstances in which the document came into being. The former distinction between permissible background and surrounding circumstances, never very clear, has fallen away. Interpretation is no longer a process that occurs in stages but is essentially one unitary exercise. Accordingly, it is no longer helpful to refer to the earlier approach.
JR57/21
Atlas Finance (Pty) Ltd v Commissioner for Conciliation, Mediation and Arbitration and Others (JR57/21) [2022] ZALCJHB 60 (15 March 2022)
[45] What is clear is that commission workers (those paid entirely or partly on the basis of sales made or deals completed) must still be paid at least the NMW. Workers do not have to be paid the minimum wage for each hour worked, but they must be paid the minimum wage, on average, for the time worked in a pay reference period.[40] Therefore, workers who are paid weekly will have a pay reference period of one week and workers who are paid monthly will have a pay reference period of one month. For the purposes of the minimum wage, a pay reference period cannot be longer than one calendar month.[46] Employers receiving commission must receive, on average, at least the minimum wage for each hour worked in the pay reference period. Therefore, if the workers' commission over a pay reference period falls below the minimum wage based on the number of hours worked, the employer must make up the sum to at least the minimum wage.[47] It is clear that section 5(3) of the NMWA allows for a workers wage to be determined on a basis other than the hours worked, provided that such wage is not less than the prescribed NMW. Indeed, the Third Respondents earned commission during their normal working hours which was paid with basic salaries ranging between R750.00 and R2 000.00. This is provided for and falls within the ambit of section 5(3) of the NMWA.
[48] Section 5(1) of the NMWA sets out the payments that are to be excluded from the calculation of wage. It is evident from the sub-sections (a) - (d) that it does not list the payment of commission earned for work done during normal working hours as an exclusion for the purposes of determining whether an employee earns less than, equal to or more than the prescribed NMW. If the legislature wanted to exclude commission for the purpose of determining whether an employee earns less than, equal to or more than the prescribed NMW, it could have done so expressly. There are furthermore not yet any prescribed categories of payment in terms of section 5(1)(d) listed in the Act wherefore same is not applicable in casu.
[49] In addition, the Applicant submits that commission earned by an employee for work during normal working hours of work is not a benefit that is paid in addition to normal remuneration, i.e., a bonus or payment in kind and therefore commission here does not constitute a gratuity, tip or a gift. Whilst acknowledging the challenges as to what constitutes a benefit[Protekon (Pty) Ltd v CCMA [2005] 7 BLLR 703 (LC); Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 1120 (LAC) (Protekon) and see also S. Ebrahim The Interpretation to Be Accorded to the Term Benefits in Section 186(2)(a) of the LRA continues: Apollo Tyres South Africa (PTY) Limited v CCMA (DA1/11)[2013] ZALAC 3 (2014) 17 Potchefstroom Electronic Law Journal 596 at 609.], this judgment does not call on me to elaborate or decide on the issue of what is or is not a benefit but to only decide if commission herein should be included in the calculation of the NMW. Having looked at the facts of this case in totality it cannot be said that the commission earned during the normal course of working hours constitutes a gratuity, tip or a gift as contemplated by the NMWA or as a benefit in terms of the relevant case law.[42]
[50] In addition, having regards to what is included and excluded from remuneration, in terms of section 5(1)(c) of the NMWA, any cash payments made to an employee, except those that are listed as exclusions, would be included as remuneration. It is clear that gratuities (for example tips received from customers) and gifts from the employer as well as discretionary payments not related to an employees hours of work or performance of work does not form part of remuneration. The fact that the payment of commission for work done in the ordinary hours of work is not included indicates that payments like commission are not considered gratuities, tips or gifts. Therefore, section 5 of the NMWA cannot be interpreted to specifically exclude commission.
[51] In casu, it is clear that the Commissioner relied exclusively on the definition of wage as contained in the NMWA, in reaching a conclusion that the Applicant had not complied with the Act by paying such minimum wage to the employees. The Commissioner, in the calculation of whether or not the Applicant was in compliance with the NMWA,[43] failed to take into account arguments that the commission earned by employees must be added to their fixed monthly payments in order to arrive at the correct wage paid to them per month. It was the evidence of the Applicant that when the commission of the employees was added to their fixed monthly payments, it was in excess of the NMW, and therefore the Applicant was in compliance with the NMWA[44].
JR2751/18
Solidarity obo Stones v Special Investigation Unit and Others (JR2751/18) [2021] ZALCJHB 450 (10 December 2021)
[21] The onus that the applicant was required discharge, is to prove whether the respondent created a reasonable expectation that his fixed-term contract would be renewed.[13][22] On the totality of evidence before the third respondent, the applicant was aware that his role was not on the permanent establishment of the first respondent. This, he conceded.[14] He was aware that the result of the scoping was that his role was not required in the establishment of the first respondent. He was also aware of an irregularity in his contract[15] and was informed in June 2014, and later, notified in September 2014, that his contract would terminate on 30 September 2014.
DA7/20
Jacobs v KwaZulu-Natal Treasury (DA7/20) [2021] ZALAC 50 (9 December 2021)
[37] Furthermore, the appellant, in my view, did not breach the confidentiality agreement by tendering such evidence before the Nelsen arbitration. It would be a great travesty of justice if this court were to make a finding that supports the respondents version that the appellant breached the confidentiality agreement when giving evidence in an arbitration process or that she breached the confidentiality agreement when she disclosed the irregularities and/or dishonesty that were committed by members of the selection panel at a hearing related to what transpired at the selection panel.[38] It is, also, my view that an employer may not invoke a confidential agreement to conceal wrong doings in the workplace and an employee who has signed a confidentiality agreement does not require the permission of his or her employer to reveal wrongdoings in the workplace if required to do so in legal proceedings. If permission is to be obtained first, any dishonest conduct will never see the light of day.
JS412-20
Muller v Mpumalanga Tourism and Park Agency (JS412-20) [2021] ZALCJHB 76 (2 June 2021)
Gcaba v Minister of Safety and Security and Others 2010 (1) SA 238 (CC)
75. Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa [supra] and not the substantive merits of the case. If Mr Gcabas case were heard by the High Court, he would have failed for not being able to make out a case for the relief he sought, namely review of an administrative decision. In the event of the Courts jurisdiction being challenged at the outset (in limine), the applicants pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the Courts competence.(Own emphasis)
[28] the Labour Appeal Court also considered the Labour Court's jurisdiction having regard to section 77(3) of the BCEA. In Rand Water v Stoop and Another[(2013) 3 for ILJ 579 (LAC)] the Labour Appeal Court held that the Court had jurisdiction where an employer claims damages from the former employee arising from the provisions of the contract of employment whether explicit or implied, provided the contractual provisions are pleaded.
[29] In summary, the authorities referred to, require of the applicant to plead a contractual term and the breach thereof. The Court must only look at the pleading and not consider any evidence or look at the substantive merits of the case, except in this matter also at any agreed facts..[30] Having regard to the applicant's statement of claim, he pleaded that the policy forms part of his contract of employment. He therefore relies upon a contractual term for the relief he claims. In addition, the applicant pleaded that it is the respondent that is obliged in terms of the contract of employment to pay him the benefit.[31] In summary, the applicant pleads that in terms of a contractual term incorporating the policy, he is entitled to benefits to be paid by the respondent. That brings the claim, as pleaded, within the ambit of section 77 of the BCEA.
[26] Consistent with the BCEAs intent to protect the unorganised and vulnerable workers through the enforcement machinery in chapter 10, Section 74(2) renders it convenient for the employee who is subsequently dismissed whilst having a claim in terms of the BCEA to have that claim determined together with the unfair dismissal claim in terms of section 191 of the LRA.
[28] I, accordingly, conclude that, properly construed and given the facts and context, the applicability of section 74(2) to this matter is ousted by the fact that Mr Chimphondahs unpaid performance inventive bonus constitutes a benefit as opposed to remuneration, a basic condition of employment in terms of the BCEA; alternatively, by section 4(c). It follows that the Commissioner had no jurisdiction to entertain Mr Chimphondahs contractual claim.
JR1195/19
Chimphondah v Housing Investment Partners (Pty) Ltd and Others (JR1195/19) [2021] ZALCJHB 83 (31 May 2021)
[12] The core of Mr Chimphondahs submissions is that the definition of remuneration is wide enough to include salaries and all extras or benefits, per the decision of the LAC in Apollo Tyres South Africa (Pty) Ltd v CCMA,[[2013] 5 BLLR 434 (LAC) (Apollo Tyres) at para 25.]
Many benefits that are payment in kind form part of the essentialia of practically all contemporary employment contracts. Many extras are given to employees as a quid pro quo for services rendered just as much as a wage is given as a quid pro quo for services rendered. The cost to employer package has become, for many employees and employers, a standard contract of employment. PAK Le Roux points out that extras are often important issues during the negotiation of contracts of employment and the link between salaries or wages and benefits or extras is illustrated by the fact that contributions to medical aid schemes and pensions and provident schemes are often agreed to on the basis of a salary sacrifice because this is a tax effective way of structuring an employment package.[12]
Sing Li v Omega Holdings Ltd Unreported judgment, (JS 591/02) [2003] ZALC 36 (25 April 2003) (Omega Holdings).
Woodroffe AJ, where it was stated, in comparable circumstances, that the applicability of section 74(2) depends on whether the applicant relies on a contract or the BCEA for their claim. The Court further considered the relationship between sections 4, 74(2) and 77 of the BCEA and stated that:In this matter the money claims are linked to a dismissal, but the Applicant does not plead reliance on the BCEA in order to found those claims. The money claims are founded in the contract alleged between the parties. It may be so that some of these claims also straddle certain sections of the BCEA but the pleader places no reliance on those sections in order to found the money claims. Accordingly, the Applicant does not plead that these claims are in respect of amounts due to the Applicant in terms of the BCEA. The claims all arise and are so claimed, so the Applicant says, in terms of a contract of employment between the parties. Therefore, in my opinion, Section 74 (2) is of no application to these claims.[15] (Emphasis added)
[35] Revelas J in Schoeman & Another v Samsung Electronics SA (Pty) Ltd, held, in distinguishing a 'benefit' from 'remuneration', that commission is encapsulated by the notion of remuneration:Commission payable by the employer forms part of the employee's salary. It is a quid pro quo for services rendered, just as much as a salary or a wage. It is therefore part of the basic terms and conditions of employment. (Emphasis added and footnotes omitted)
[18] Then again, the question that arises here is whether Mr Chimphondahs performance incentive bonus constitutes a remuneration in terms of the BCEA. Section 1 of the BCEA defines remuneration as any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State;
[19] In the present instance, as correctly contended by HiP, it is easily discernible from the clause 6.1.2 of Mr Chimphondahs employment contract and his letter of appointment that the performance incentive bonus is a benefit payable over and above the guaranteed remuneration, which is a quid pro quo for services rendered. It is obviously payable at the discretion of the employer if certain requirements have been fulfilled per the inventive scheme policy and eligibility is not automatic.
JR2165/18
Unilever South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2165/18) [2020] ZALCJHB 203 (27 October 2020)
[41] Having said that, I am provided with some assistance by the Labour Court decision in Nama Koi Local Municipality v South African Local Government Bargaining Council and Others,[11] wherein Snyman AJ stated:What is significant is that sections 198A, 198B and 198C come with their own dispute resolution processIn my view, it is clear why sections 198A, 198B and 198C have their own dispute resolution process. The reason for this is that section 198D makes it possible for employees to pursue disputes about whether any of these provisions apply to their employment whilst the employment relationship is ongoing, with the view to obtaining declaratory relief, particularly where it comes to section 198B, as to the status of that employment relationship. Using an example analogous to the current matter, a dispute concerning the application of section 198B(5) can be referred to the CCMA in the course of the existence of the fixed term contract and before the expiry of the term, for declaratory relief to the effect that the fixed term contract is in fact an indefinite contract as a result of the application of that provision. This would avoid the employer relying on the expiry of the fixed term to bring about termination of employment."I consider section 198D to be a process designed to be proactive. It places an entitlement in the hands of an employee party to remedy a state of affairs as contemplated by sections 198A, 198B and 198C during the currency of the employment relationship. Section 198D as a dispute resolution process is not intended to be applied once the employment relationship has terminated. For that, employee parties already have the required protection in the unfair dismissal provisions of the LRA. My view in this regard is further informed by the fact that section 198D does not provide for the kind of relief as contemplated by sections 193 and 194, which only apply in the case of unfair dismissals and unfair labour practices. The relief that flows from section 198D can only be declaratory relief, which may well be moot if the employment relationship has ended by the time it falls to be decided.
[42] I am in agreement with Snyman AJ in Nama Khoi Local Municipality that section 198D does not automatically entitle an applicant to compensatory relief in the event of a declaratory order in his favour that his contract of employment is deemed to be of an indefinite nature.[43] In this matter, I could not find any reference to evidence on record relating to comparators who are permanently employed, or the salaries and benefits they received, compared with that of the third respondent's members. Once a declaratory has been obtained, the next step would have been for the third respondent to refer an unfair labour practice dispute regarding benefits or a dispute relating to unequal treatment and to lead proper evidence in support of the referral.
JS832/19
Solidarity obo Ja de Beer v Broll Property Group (Pty) Ltd and Others (JS832/19) [2020] ZALCJHB 124 (4 August 2020)
[21] The arguments surrounding the failure to enter into an agreement as contemplated in section 197(6) of the LRA, or the alleged dispute between Broll and MTN as to whether the employees were transferred to MTN as envisaged in the MSA are red herring. Even if De Beer was dissatisfied with his transfer to FSS, nothing prevented him from reporting for duty at that entity, and pursuing a dispute under the provisions of section 187(1)(g) of the LRA. Instead, De Beer deliberately chose not to report for duty at FSS, and imagined himself as dismissed by either Broll or MTN when that was not the case.[22] Despite not having reported for duty at FSS as it was expected, there was no suggestion before the Court that FSS had as a result, terminated his services. In the end, a case of unfairness cannot be sustained against either Broll or MTN, in circumstances where as a direct result of the provisions of section 197 of the LRA, De Beer has not rendered his services at an entity he was transferred to.
J483/20
Macsteel Service Centres SA (Pty) Ltd v National Union of Metal Workers of South Africa and Others (J483/20) [2020] ZALCJHB 129; [2020] 8 BLLR 772 (LC) ; (2020) 41 ILJ 2670 (LC) (3 June 2020)
Applicant was committed to apply for the Covid-19TERS benefits
[45] In short: The Applicants case is that it has given an undertaking to apply for the Covid-19 TERS benefits for May 2020 and in giving such undertaking, the Applicant has complied with the requirements of section 64(4) of the LRA. There is no change to the terms and conditions of employment and at best for the Respondents there is a dispute about the payment date of employees and that is not a dispute covered by section 64(3) of the LRA.
[56] The Applicants employees were fully paid for a period of five weeks when they rendered no services and for which period the Applicant could have implemented the no work no pay principle, but decided not to do so in order to assist its employees.
[61] A strike initiated in terms of section 64(3)(e) of the LRA can only take place if there is a unilateral change in the terms and conditions of employment rather than a dispute of right and only when the employer has failed to comply with the request not to implement the unilateral change.
Sun lnternational Ltd and Another v South African Commercial Catering and Allied Workers and Others[9] where it was held that:'For the sake of completeness, though the merits on the protected nature of the strike are no longer in issue and even though it may be obiter, I am satisfied that the strike would still not have been protected in any event, because the real reason for the strike concerned alleged short payments arising from the introduction of the new biometric system. Although the union denied that the dispute concerned short payments, the union never disputed the veracity of the exchanges between the Group Human Resources officer and the Deputy President of the union which confirmed that rectification of alleged short payments arising from the Kronos system was the reason for the strike.
[72] In casu, the Applicant announced and implemented a 20% reduction in the salaries of its employees. It is undisputed that NUMSA did not agree to this reduction.
JS409/18
UASA-The Union obo Members v Impala Platinum Limited (JS409/18) [2020] ZALCJHB 116 (21 January 2020)
for 5 months during a strike by Amcu in which they did not participate the leave they had to take comprised accrued leave and future unaccrued leave the employer deducted contractual (non-statutory) leave days the employees did not apply for leave more leave taken than available - whether deduction of contractual leave (in addition to statutory leave) lawful. Employer has no statutory or contractual discretion and the policy does not permit the deduction reliance upon tacit consent for deduction consent not established deduction unlawful
JR2602/17
Mabizela v Commission for Conciliation Mediation and Arbitration and Others (JR2602/17) [2019] ZALCJHB 339 (29 November 2019)
[38] I am alive to the fact that an express term in a fixed term contract to the effect that the employee entertains no expectation of renewal is not a guarantee that no legitimate expectation can be found to exist[Yebe and University of Kwa Zulu Natal (Durban) 2007 ILJ 490 (CCMA).]. In many cases, contracts that contain the standard clause stating that the employee had no right of renewal or expectation of renewal i.e. the so-called disavowal clause can still create a reasonable expectation. It is accepted on the authority of Mediterranean Woollen Mills (Pty) Ltd v SACTWU[1998 (2) SA 1099 (SCA).] that despite these clauses, a reasonable expectation could still arise during employment if assurances, existing practices and the conduct of an employer led the employee to believe that there was hope for a renewal, whether on a temporary or an indefinite basis and even then these factors are still subject to an objective assessment.[Pikitup Johannesburg (SOC) Limited v Muguto and Others [2019] 10 BLLR 1146 (LC).]
1.1 The period of employment shall be of limited duration commencing on the 01 March 2014 and automatically terminating on 28 February 2014. In this instance, no separate notice of termination of the contract shall be necessary.1.2 You agree that your employment is of fixed duration and that, no retrenchment procedure or severance pay shall be applicable. On expiry of the agreed period of your employment this contract of employment terminates automatically, which does not constitute a dismissal by the SABC.1.3 You accept that once the period set out in paragraph 1.1 expires, there shall be no expectation or renewal or continuation of the contract of employment for a further period, nor for any indefinite period.1.4 Despite the contract of employment being of limited duration, the contract shall either terminate automatically on expiry of the period set out in clause 1.1 or it could be terminated if the parties adhere to the provisions of clause 16 below.
J1849/2019
DEMAWUSA and Others v City of Johannesburg (J1849/2019) [2019] ZALCJHB 368; (2020) 41 ILJ 912 (LC); [2020] 6 BLLR 574 (LC) (7 November 2019)
Steenkamp & others v Edcon Ltd (National Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC).
[137] The second basis for my conclusion is that the applicants appeal should be dismissed is a principle that, for convenience, I call LRA remedy for an LRA breach. The principle is that, if a litigants cause of action is a breach of an obligation provided for in the LRA, the litigant as a general rule, should seek a remedy in the LRA. It cannot go outside of the LRA and invoke the common law for a remedy. A cause of action based on a breach of an LRA obligation obliges the litigant to utilise the dispute resolution mechanisms of the LRA to obtain a remedy provided for in the LRA.
They clearly frame their claim on the basis of what they allege to be an unlawful suspension, and an unlawful deduction from remuneration, on the basis respectively of the breach of the collective agreement and s 34 of the BCEA.
[7] The effect of this judgment is that when an applicant alleges that a dismissal is unlawful (as opposed to unfair), that applicant has no remedy under the LRA and this court has no jurisdiction to make any determination of unlawfulness. If a remedy is sought under the LRA, the applicant must categorise the alleged unlawfulness as unfairness.
Mayo v Bull Brand Food (Pty) Ltd (2010) 31 ILJ 951 (LC) and Indwe Risk Services (Pty) Ltd v Hester Petronella van Zyl (2010) 31 ILJ 956 (LC)
[15] Turning next to the applicants claim of unlawful deductions, that claim must suffer a similar fate. The applicants base their claim on a breach of s 34 of the BCEA. That Act establishes its own mechanism for enforcement, one that requires (in most instances) that a complaint be lodged with a labour inspector. This court exercises a supervisory jurisdiction in respect of appeals form decision made ultimately by the director-general, or arbitration award issued by the CCMA. Absent a claim in contract, this court lacks jurisdiction to enforce the provisions of the BCEA as a court of first instance.
[16] In summary: the applicants claim of an unlawful suspension is not a claim contemplated by the LRA, and neither that Act nor any other statute confers jurisdiction on this court to make a determination of the lawfulness or validity of a suspension. In any event, the true nature of the suspension dispute is one that concerns the application of a collective agreement, a dispute that must be arbitrated. The claim of unlawful deductions from remuneration is one that must be pursued in terms of the enforcement mechanisms of the BCEA. Given my conclusion that in respect of both legs of the applicants claim this court lacks jurisdiction, it is not necessary for me to consider whether the applicants have been the requirements for final interdictory relief.
J1177/19
Naidoo and Another v Standard Bank SA Ltd and Another (J1177/19) [2019] ZALCJHB 168; [2019] 9 BLLR 934 (LC); (2019) 40 ILJ 2589 (LC) (24 May 2019)
1. The first respondent (Standard Bank of South Africa) has no power to discipline the first and second respondents subsequent to their resignation with immediate effect. 2. Standard Bank is interdicted from continuing with the disciplinary enquires against the applicants that were scheduled to commence on 16 March 2019 and 22 March 2019 respectively.
The effect of resignation
[14] In Sihlali v SA Broadcasting Corporation Ltd[1], resignation was held to be a unilateral termination of a contract of employment by the employee. Therefore, resignation brings an end to the contract of employment. In legal parlance, once an employee has resigned, he ceases to be an employee of that employer,
Toyota SA Motors (Pty) v CCMA and Others (2016) 37 ILJ 313 (CC); [2016] 3 BLLR 217 (CC); 2016 (3) BCLR 374 (CC) at para 142.
Where an employee resigns from the employ of his employer and does so voluntarily, the employer may not discipline that employee after the resignation has taken effect. That is because, once the resignation has taken effect, the employee is no longer an employee of that employer and that employer does not have jurisdiction over the employee anymore.
[15] It is a statutory requirement of our law, for an employee to give and serve an employer a notice period upon resignation. However, both parties may agree to waive the said notice period and the employee is free to leave. This is ideally a desirable event-free situation, however, there are instances where the employer does accept the resignation but however, wishes to hold the employee to its statutory or contractual notice period.[16] In giving effect to the principle in Toyota[3], one has to establish when does the resignation take effect. This will depend on the type of resignation: the first one will of course be resignation on notice, in this instance the resignation will only take effect at the end of the notice period. The second instance would be where an employee resigns with immediate effect, which means that the employee will not serve out his notice period and the resignation will take effect immediately.
[18] In Sihlali[4] the Court held that where an employee resigns without giving the required notice period, that employee breaches the employment contract. In this situation, what would be the recourse available to the employer?
Vodacom (Pty) Ltd v Motsa and Another [2016] 5 BLLR 523 (LC); (2016) 37 ILJ 1241 (LC).
When an employee gives the required notice the contract terminates at the end of the notice period. When an employee leaves his or her employment without giving the required period of notice the employee breaches the contract. Ordinary contractual rules dictate that the employer may hold the employee to the contract and seek an order of specific performance requiring the employee to serve the period of notice. Alternatively, the employer may elect to accept the employees repudiation, cancel the contract and claim damages.
[19] At this juncture, it is apposite to deal with the misconception amongst employers that they have a right to refuse to accept a resignation-this is flawed and was frowned upon by the Court in Sihlali[6] where the Court held such conduct to amount to a form of indentured labour: it said:If resignation to be valid only once it is accepted by an employer, the latter would in effect be entitled, by a simple stratagem of refusing to accept a tendered resignation, to require an employee to remain in employment. Against his or her will. This cannot be-it would reduce the employment relationship to a form of indentured labour. [7]
Mtati v KPMG Services (Pty) Ltd [2016] ZALCJHB 403; [2017] 3 BLLR 315 (LC); (2017) 38 ILJ 1362 (LC) at para 25.
[24] In my view, the second letter of resignation of the applicant changed the status of the employee from that of being an employee, in the ordinary sense of the word, to that of being the erstwhile employee of the respondent. This means that the termination of the employment contract with immediate effect took away the right of the first respondent to proceed with the disciplinary hearing against her. The powers of the employer to discipline an employee post the resignation is well illustrated by what is said in the decision of the Labour Appeal Court of Lesotho in the case of Mahamo v Nedbank Lesotho Limited, where it is held that:Resignation is a unilateral act which brings about termination of the employment relationship without requiring acceptance...Whilst the Respondent took every effort to ensure that the disciplinary hearing was procedurally fair, its efforts were unnecessary because the employment contract had already been terminated by the Applicant himself on 20th October 2000. . .
JS172/2014
Chemical, Energy, Paper, Printing, Wood & Allied Workers Union and Others v Polyoak Packaging (Pty) Ltd (JS172/2014) [2019] ZALCJHB 105 (24 April 2019)
Staff Association for the Motor and Related Industries (SAMRI) v Toyota of SA Motors (Pty) Ltd (1997) 18 ILJ 374 (LC) at 378
[45] ... this Court reiterated that any variation to an employee's salary, irrespective of whether it is increased or decreased, amounts to a change in the basic terms and conditions of employment and cannot be effected unilaterally.
Vector Logistics at para 36; See also Monyela & others v Bruce Jacobs t/a LV Construction (1998) 19 ILJ 75 (LC) at 82J-83A
The common law position with regard to change in terms and conditions of employment is that an employer may not unilaterally change the terms and conditions of an employee. Such unilateral change is unlawful and the affected employee has an election to either resile from the contract or to sue for damages in terms of the contract. The Act treats unilateral variations of the terms and conditions of employment as a subject for collective bargaining. However, the employees are not deprived of any remedy other than strike action where the employer has unilaterally changed the employment contract.
J913/19
National Union of Mineworkers and Others v Thompson (J913/19) [2019] ZALCJHB 77 (12 April 2019)
[9] It was argued on behalf of the applicants that the respondents conduct of demanding that the individual applicants work short-time without their consent has no legal basis. It is also in violation of sections 1, 2, 3, 4 and 5 of the BCEA. The BCEA provides in unequivocal terms that ordinary working hours may be varied in terms of a collective agreement. Employees consent is therefore a requirement for implementing short time. The applicants established that the respondents conduct of demanding that they work short time without their consent is unlawful. The respondent provided no valid and lawful reason for its conduct.
JA14/2018
Masoga and Another v Pick n Pay Retailers (Pty) Ltd and Others (JA14/2018) [2019] ZALAC 59; [2019] 12 BLLR 1311 (LAC); (2019) 40 ILJ 2707 (LAC) (12 September 2019)
[49] The rationale for section 200B is set out in the memorandum of objects that accompanied the 2014 LRA Amendment Bill. The purpose of the section is said to be: to prevent simulated arrangements or corporate structures that are intended to defeat the purposes of the LRA or any other employment law, and to provide for joint and several liability on the part of persons found to be employers under this section for any failures to comply with an employers obligations under the LRA or any employment law. This is particularly important in the context of subcontracting and outsourcing arrangements if these arrangements are subterfuges to disguise the identity of the true owner.
[50] Because of its breath, section 200B could be used to scrutinise any conceivable relationship or arrangement for purposes of liability, provided that a case for such scrutiny has been made out, and it is done fairly. It is one of a suite of provisions whereby the Legislator seeks to stop complex contractual and other schemes used by true employers to avoid their obligations under the Labour legislation. It is conceivable that it may not be easy to determine who the true employer, or owner, is for the purposes of liability arising from a failure to comply with the obligations in terms of the LRA, or other employment laws. This may be due to the complexity of the stratagems, or devices used by those wanting to avoid their obligations.[51] Section 200B, which is based on law and equity, is intended to assist in that regard. For example, it is likely that the difficulty this Court grabbled with in Buffalo Signs Co. Ltd and others v De Castro and Another[(1999) 20 ILJ 1501 (LAC)], regarding the liability of a holding company and its subsidiary to compensate employees of a subsidiary of the subsidiary, would have been easily resolved if section 200B was available at the time. The majority of this Court[8] overturned an order of the Industrial Court that held the holding company and its subsidiary jointly and severally liable, on the ground, inter alia, that even if the former was complicit in the latters deceit to avoid its obligations under the LRA, that did not make the former the employer; because there was no such thing as a fictional employer and an employer was one that fitted the description of an employer in the Labour Relations Act of 1956[9]. In terms of section 200B, the holding company and its immediate subsidiary would be jointly and severally liable to compensate the employees.[51] There was no suggestion, let alone credible averment in the dispute before the commissioner that PnP and AB engaged in subterfuge by utilising an empowerment scheme for deceitful purposes, or more particularly, that PnP was using the scheme and AB as a sham to avoid its legal obligations toward its employees[10], or that the scheme had that effect.
J1752/18
Lefatola and Another v City of Johannesburg and Another (J1752/18) [2018] ZALCJHB 445 (6 June 2018)
SA Maritime Safety Authority v McKenzie (2010) 31 ILJ 529 (SCA) at 553-4, para [56].
the SCA held that there is no implied right in contract not to be unfairly dismissed in respect of employees to whom the Labour Relations Act, 66 of 1995 applies. By necessary implication, this also means a dismissal which is procedurally unfair does not necessarily imply a breach of contract.
JS779/15
National Union of Metalworkers of South Africa and Others v Migromega (Pty) Ltd (JS779/15) [2018] ZALCJHB 171; (2018) 39 ILJ 2048 (LC) (8 May 2018)
[19] Further, that legal interest does not arise directly or indirectly from any obligations or duties related to their contracts of employment or the termination thereof, but simply relates to the fact that Micromega made an ex gratia offer of a payment when their former employer Kolbenco failed to honour its obligation to pay the agreed global severance package. The offer was made quite independently of the obligations undertaken by Kolbenco arising from the termination of the plaintiffs employment contracts. Any obligations incurred by Micromega to pay the R1.5 million to the plaintiffs arose entirely from whether or not Micromega made that offer and if it was accepted. That is all the plaintiffs needed to establish to succeed with their claim. Merely because their employment relationship with Kolbenco was an antecedent fact in the genesis of the offer by a third party who was never their employer, it does not follow that their claim is a matter concerning their contracts of employment. In this case, the link between their claim to the R 1.5 million and their contracts of employment is too tenuous to make it a matter concerning a contract of employment. [20] Consequently, the jurisdictional objection must succeed.
JS257/15
National Union of Mineworkers and Others v Eskom Holdings SOC (JS257/15) [2018] ZALCJHB 170 (8 May 2018)National Union of Mineworkers and Others v Eskom Holdings SOC (JS257/15) [2018] ZALCJHB 170 (8 May 2018)
payslips the applicants received revised letters dated 25 May 2012 in which lesser salaries were reflected as compared to those appearing on the letter...Eskom cannot escape from the contract because the alleged mistake is due to their fault of not thoroughly verifying the correctness of the contents of the letters.
Sonap Petroleum (SA) (Pty) LTD (formerly known as Sonarep (SA) (Pty) Ltd) v Pappadogianis 1992(3) SA 234 (A) at 238 H I.
I use the term mistake and not error because, although they may be used interchangeably, mistake rather implies misunderstanding, misinterpretation, and resultant poor judgment, and is usually weaker than error in imputing blame or censure. (American Heritage Dictionary sv error.) The law, as a general rule, concerns itself with the external manifestations, and not the workings, of the minds of parties to a contract. South African Railways & Harbours v National Bank of South Africa Ltd[3]At 239I-240B the Court pronounced:In my view therefore, the decisive question in a case like the present is this: did the party whose actual intention did not conform to the common intention expressed, lead the other party, as a reasonable man, to believe that his declared intention represented his actual intention? To answer this question, a three-fold enquiry is usually necessary, namely, firstly, was there a misrepresentation as to one partys intention; secondly, who made that representation; and thirdly, was the other party misled thereby? See also Du Toit v Atkinsons Motors Bpk[4]; Spindrifter (Pty) Ltd v Lester Donovan (Pty) Ltd[5]. The last question postulates two possibilities: Was he actually misled and would a reasonable man have been misled? Spes Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd[6].
George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A) at 471.
When can an error be said to be Justus for the purpose of entitling a man to repudiate his apparent consent to a contractual term? As I read the decisions, our Courts, in applying the test, have taken into account the fact that there is another party involved and have considered his position. They have, in effect, said: Has the first party the one who is trying to resile been to blame in the sense that by his conduct he has led the other party, as a reasonable man, to believe that he was binding himself? (vide Logan v Beit 1890 (7) SC 197; I. Pieters & Company v Solomon, 1911 AD 121 esp at pp. 130, 137; Van Ryn Wine and Spirit Company v Chandos Bar, 1928 TPD 417, esp. at pp. 422, 423, 424; Hodgson Bros., v South African Railways 1928 CPD257 at p. 261). If his mistake is due to a misrepresentation, whether innocent or fraudulent, by the other party, then, of course, it is the second party who is to blame and the first party is not bound.
[20] National & Overseas Distributors Corporation (Pty) Ltd v Potato Board 1958 (2) SA 473 (A).
concerned an attempt by the Board to escape from a contract which resulted from its manager mistakenly writing to inform the company that its tender had been accepted when he should have written to one of the other tenderers. Schreiner JA expanded on what he pronounced earlier in the George v Fairmead (supra) as follows:If the respondent had been a natural person who had accepted a tender according to its terms, there is no doubt that a contract would have been made when the acceptance was communicated to the tenderer, as by posting it. It would not be possible for such a natural person, if he repudiated, to escape liability by proving that he had posted the wrong letter or the like. That follows from the generally objective approach to the creation of contracts which our law follows. (See Van Ryn Wine and Spirit Co v Chandos Bar, 1928 TPD 417 at pp. 424, 425; Irvin and Johnson (S.A) Ltd v Kaplan, 1940 CPD 647 at pp. 650, 651; and the cases therein cited.) No other approach would be consistent with fairness or practicality. Our law allows a party to set up his own mistake in certain circumstances in order to escape liability under a contract into which he has entered. But where the other party has not made any misrepresentation and has not appreciated at the time of acceptance that his offer was being accepted under a misapprehension, the scope for a defence of unilateral mistake is very narrow, if it exists at all. At least the mistake (error) would have to be reasonable (Justus) and it would have to be pleaded.
JS33/13
Maile v Department of Correctional Services (JS33/13) [2017] ZALCJHB 106 (24 March 2017)
Trident Steel (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2005) 26 ILJ 1519 (LC). See also Laminate Profile CC v Mampai and Others (2007) 28 ILJ 1092 LC
imprisonment suspends the obligation of an employer to pay the employee a salary and for the period of imprisonment, an employee is not entitled to remuneration. This is so in that an employee, by virtue of his or her imprisonment is unable to perform in terms of his contractual obligations. Equally, an employer cannot in law or logic be expected to pay an employee who is serving time in jail, especially where the theft, as evinced from the conviction in this case, was against the employer.
JR1629/2016
Sunshield Solutions (Pty) Limited v Ngwenya and Others (JR1629/2016) [2017] ZALCJHB 39 (7 February 2017)
Sihlali v South African Broadcasting Corporation Ltd [2010] 5 BLLR 542 (LC) at [11]
that a resignation is a unilateral act by an employee to terminate his/her contract of employment. The learned judge pointed out that an employee, in so resigning, must demonstrate: a clear and unambiguous intention not to go on with the contract of employment, by words or conduct that would lead a reasonable person to believe that the employee harboured such an intention.... it is not necessary for an employer to accept a resignation that is tendered by an employee or to concur in it, nor is the employer party entitled to refuse to accept a resignation or decline to act on it. (See Rosebank Television & Appliance Co (Pty) Ltd v Orbit Sales Corporation (Pty) Ltd 1969 (1) SA 300 (T)). If a resignation to be valid only once it is accepted by an employer, the latter would in effect be entitled, by a simple stratagem of refusing to accept a tendered resignation, to require an employee to remain in employment against his or her will. This cannot be it would reduce the employment relationship to a form of indentured labour....However, an employee need not communicate his/her resignation to the employer for it to be effective.[11] As Van Niekerk J pointed out, a resignation may be: established by a subjective intention to terminate the employment relationship, and words or conduct by the employee that objectively viewed clearly and unambiguously evince that intention.
Fijen v Council for Scientific & Industrial Research (1994) 15 ILJ 759 (LAC) at [772C-D]
either by words or conduct, evidence a clear and unambiguous intention not to go on with his contract of employment. (The employee must) act in such a way as to lead a reasonable person to the conclusion that he did not intend to fulfil his part of the contract
JS948/14
Bos v Eon Consulting (Pty) Ltd (JS948/14) [2016] ZALCJHB 305 (12 August 2016)
the terms and conditions of employment specifically applicable to the applicant made no provision for a retirement age. Unilaterally introducing a retirement age in such circumstances would amount to a unilateral change in employment conditions, which is not permitted, and which the applicant refused to accept. If the respondent wanted to change the situation with regard to the retirement age applicable to the applicant, as it clearly did want to do, it needed to negotiate with the applicant to try and secure an agreement
[70]Accordingly, I conclude that the respondent has failed to establish the existence of either an agreed or normal retirement age to be applicable in the respondent, and in particular, being applicable to the applicant. As such, because one of the essential requirements for the application of Section 187(2)(b) is then absent, the defence in terms of this Section is not available to the respondent. Because the applicant was dismissed based on his age, the applicants dismissal was automatically unfair as contemplated by Section 187(1)(f) of the LRA, which I hereby determine to be the case.
J814/16
Haya v Kopanong Local Municipality (J814/16) [2016] ZALCJHB 560 (4 August 2016)
The respondent must pay the applicant her remuneration due in terms of the contract for the period 1 July 2011 to 30 June 2013 inclusive.
J1153/16
Benchmark Signs Incorporated v Muller and Another (J1153/16) [2016] ZALCJHB 238 (7 July 2016)
partial enforcement
for a period of three years and the geographic scope is the entire South Africa. This, in my view, is unduly repressive to the employee and it is therefore contrary to public policy.[6] The restraint clause is consequently unreasonable and accordingly cannot be enforced.
Kelly Group Limited v Capazorio and Others 15484/2010) [2010] ZAGPJHC 139 (7 December 2010).
Nampesca (SA) Products (Pty) Ltd v Zaderer 1999 (1) SA 886 (C) PG 896.
Henred Reuhauf (Pty) Ltd v Davel & Another (2011) 32 ILJ 618 (LC).
National Chemsearch (SA) (Pty) Ltd v Borrowman and Another (supra at 1114B-F and 1116G-H).
J967/16
Wespoint Trading 91 CC t/a SkinPhd (J967/16) [2016] ZALCJHB 251 (9 June 2016)
trade connection as an interest worthy of protection
[11] She does not deny that they are regular customers of the applicant.[19] To my mind, the applicants have set out a case of proprietary interest in the founding affidavit. I, therefore, cannot agree with the submission that a proprietary interest has not been set out. There is clear and unambiguous case of existence of a trade connection between the 50 customers listed and the applicants. An attempt to suggest that they are the clients of the first applicant and not the second applicant-party to the contract is feeble and, accordingly, rejected.
The issue of urgency; Does the second applicant have proprietary rights worthy of protection?; Is the restraint enforceable?
JA91/2015
Vermooten v Department of Public Enterprises and Others (JA91/2015) [2016] ZALAC 63; (2017) 38 ILJ 607 (LAC); [2017] 6 BLLR 606 (LAC) (14 December 2016)
The weakness in the economic dependency test, which describes itself as a reality test, is that it does not pay attention to all the facts including the contractual relationship between the parties.[6]But this test needs not be applied where the person in question is, in reality, an independent contractor, then he or she is not an employee as defined by the LRA. Not employee
Universal Church of the Kingdom of God v Myeni and Others [2015] 9 BLLR 918 (LAC); (2015) 36 ILJ 2832 (LAC) (28 July 2015).
[25] Finally, there can be no doubt that the appellant and the Department consciously and deliberately elected to structure their relationship as one other than an employment relationship. It is permissible to do this
JA51/15
G4S Cash Solutions SA (Pty) Ltd v Motor Transport Workers Union of South Africa (MTWU) and Others (JA51/15) [2016] ZALAC 22; (2016) 37 (ILJ) 1832 (LAC) (26 May 2016)
Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration. More recently Brand JA in City of Cape Town (CMC Administration) v Bourbon Leftley NNO and Another
As stated in these cases, a tacit term is based on an inference of what both parties must or would necessarily have agreed to, but which, for some reason or other, remained unexpressed. Like all other inferences, acceptance of the proposed tacit term is entirely dependent on the facts. But, as also appears from the cases referred to, a tacit term is not easily inferred by the courts. The reason for this reluctance is closely linked to the postulate that the courts can neither make contracts for people nor supplement their agreements merely because it appears reasonable or convenient to do so (see e.g.Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
CA21/2014
Zapop (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (CA21/2014) [2016] ZALAC 16; (2016) 37 ILJ 1882 (LAC); [2016] 9 BLLR 910 (LAC) (12 May 2016)
the CCMA had jurisdiction to entertain commission claims as part of remuneration
section 35(4) of the BCEA
no cap exists and an award of an agreed sum is appropriate and in accordance with the BCEA
J 352/16
Mokoena and Others v MEC Gauteng Department of Health: Mahlangu N.O (J 352/16) [2016] ZALCJHB 98; (2016) 37 ILJ 1445 (LC) (18 March 2016)
Phaka and Others v Bracks and Others[2015] 5 BLLR 514(LAC); (2015) 36ILJ1541 (LAC) at paras 33-34
The Labour Appeal Court has held that an employer may exercise a measure of control over independent contractors
State Information Technology Agency (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (SITA) (2008) 29ILJ2234 (LAC) at para 12.
LAC held that there are three primary criteria for determining whether a person is an employee.
1. an employers right to supervision and control; 2. whether the employee forms an integral part of the organization with the employer; 3. he extent to which the employee is economically dependent upon the employer. The presence of any one of these three factors will generally be sufficient to establish that the person is an employee. The identification of these primary criteria does not preclude an employee relying on other factors associated with the dominant impression test.
J2553/15
High Tech Medical Services CC v Oberholzer and Another (J2553/15) [2016] ZALCJHB 1 (5 January 2016)
training and repairs of the high medical equipment {23] It follows that the applicant waited for six weeks before instituting this proceedings despite the fact that it was aware of the breach. There is no explanation for this delay and therefor the urgency in that regard was self-created. [24] In my view applicant's urgent application stands to fail due to lack of urgency.
National Mineworkers Union v Black Mountain- a division of Anglo Operations Ltd (2007) 28 ILJ 2796 (LC) at paragraph 12
Only once an applicant has persuaded the court that sufficient grounds exist which necessitates a relaxation of the rules and ordinary practice, will the court proceed to consider the matter as one of agency. The extent to which the court will allow the parties to dispense with the rules relating to the period will depend on the degree of agency in the matter.
SPP Pumbs (South Africa) Pty Ltd v Stoop and Another [2014]ZALCJHB 453
a.The restraint of trade agreement is an enforceable contract. b.The restraint of trade is enforceable if it protects legally recognized interests of the party seeking to enforce it. c.The restraint of trade is unenforceable if it is unreasonable and contrary to public policy. d. The restraint of trade is unenforceable if it merely seeks to limit competition. 21] There were several legitimate ways for the DPE to utilise the special knowledge and experience of the appellant. The two that the DPE considered were to employ the appellant as an employee on a contract basis or as a consultant on a different contractual basis.
InFertility Guards Holding (Pty) Ltd t/a Fidelity Guard v Pearmain 2001 (2)SA 853 (SE).
the court held that the onus to prove that the restraint of trade is unreasonable and therefore not enforceable rests with the respondent.
Basson v Chilwan and Others 1993 (SA 742 (A)
a.Is there interest of the one-party which is deserving of protection at the termination of the agreement? b.Is such interest prejudiced by the other party? c.If so, does such interest so weigh up quantitatively and qualitatively against the interests of the latter party that the latter should not be economically inactive and unproductive? d.Is that another facet of public policy having nothing to do with the relationship between the parties but requires that the restraint should either be maintained or rejected? all confidential matters which is useful for the carrying on of the business and which could therefore be used by a competitor, if disclose to him, to gain a relative competitive advantage. Such confidential material is sometimes compendiously referred to as trade secrets and the relationship with customers, potential customers, suppliers and others that go to made what is compendiously referred to as the trade connection of the business, being an important aspect of incorporeal property known as goodwill.
J2126/15
Festo (Pty) Ltd v Wesley and Others (J2126/15) [2015] ZALCJHB 405 (20 November 2015)
area, relationships with his former customers will not endure in his new position, other employees from time of taking up appointment free to disclose, no customers moving across, respondents interests in remaining economically productive outweigh any of Festos interests in its customer connections and confidential information.
52] On the evidence before me, taking into account the work previously performed by the first and second respondents and the work to be performed by them, as well as the issue of geographical scope of the restraints, I find that the enforcement of same would not be in line with public policy and in the public interest.
Aranda Textile Mills v Hurn & Another
A mans skills and abilities are a part of himself and he cannot ordinarily be precluded from making use of them by a contract in restraint of trade. An employer who has been to the trouble and expense of training a workman in an established field of work, and who has thereby provided the workman with knowledge and skills in the public domain, which the workman might not otherwise have gained, has an obvious interest in retaining the services of the workmen. In the eye of the law, however, such an interest is not in the nature of property in the hands of the employer. It affords the employer no proprietary interest in the workmen, his know-how or skills. Such know-how and skills in the public domain become attributes of the workman himself, do not belong in any way to the employer and the use thereof cannot be subjected to restriction by way of a restraint of trade provision. Such a restriction, impinging as it would on the workmans ability to compete freely and fairly in the market place, is unreasonable and contrary to public policy.
Rawlins v Caravantruck 1993(1) SA 537 (AD) at 541 C-H
the employee, by contact with the customer, gets the customer so strongly attached to him that when the employee quits and joins a rival he automatically carries the customer with him in his pocket'.
JS598/15
Groenewald v Mokgethi N.O. and Others (JS598/15) [2015] ZALCJHB 399 (13 November 2015)
Section 77(3) claim for outstanding performance bonus. No performance evaluation conducted entitlement and amount not established. Application dismissed.
J982/2013
Phiri v City of Johannesburg and Another (J982/2013) [2015] ZALCJHB 351 (16 October 2015)
the contract. Ordinary contractual rules dictate that the employer may hold the employee to the contract and seek an order of specific performance requiring the employee to serve the period of notice. Alternatively, the employer may elect to accept the employees repudiation, cancel the contract and claim damages. Of course, it is always open to the parties to terminate an employment contract on agreed terms and for either of them to waive whatever rights they might otherwise have enjoyed.
That issue aside for the moment, the question that arises in each of the applications before me is whether the BCEA entitles an aggrieved party to enforce the provisions of the Act as contractual terms, and to rely on the concurrent jurisdiction that this court enjoys under s 77 of the BCEA to enforce them. The starting point is s 4 of the Act which provides with some exceptions, that a basic condition of employment constitutes a term of any contract of employment. A basic condition of employment is defined in s 1 to mean a provision of this Act or sectoral determination that stipulates a minimum term or condition of employment.In Baartmanand Another t/a KhayaIebhubesi v De Lange and Another (2009) 30 ILJ 2701 (LC) Todd, AJ expressed his reservations about whether it could be said that an obligation under the BCEA to furnish certificates, information regarding remuneration and the like could be said to constitute basic conditions of employment (at paragraph38of the judgment). For the purposes of these proceedings, I am prepared to accept that they may be enforced as contractual terms. I deal with these issues below in the context of the prayers for costs on a punitive scale that accompanies virtually every application.
DA24/1
Enforce Security Group v Fikile and Others (DA24/15) [2017] ZALAC 9; (2017) 38 ILJ 1041 (LAC); [2017] 8 BLLR 745 (LAC) (25 January 2017)
interpretation thereof- whether the clause impermissible on the facts of this case. Factors to be considered to determine whether the contracting parties have contracted out the protection against unfair dismissal; contained automatic termination clauses operative upon the termination of a contract for the provision of services which existed between the appellant and its client, having come into effect, constituted a dismissal....[21] The definition of dismissal requires that there must be an act by the employer that terminates the contract. ...[23] The factual matrix in this case supports the view that the employees contracts of employment were fixed-term contracts where the end of the fixed term was defined by the completion of a specified task or project, that is, the termination of the Boardwalk contract. The continued existence of these contracts depended on the continued existence of the contract between the appellant and Boardwalk. The employees were employed specifically for the contract between the appellant and Boardwalk. The termination of that contract is a legitimate event that would by agreement, give rise to automatic termination of the employment contracts. It is Boardwalk that cancelled the contract and not the appellant. ...[43]...The award that the commissioner could competently make was to find that the CCMA lacked jurisdiction because on the facts of the case the employees failed to establish the existence of a dismissal. It was not supposed to dismiss the employees claim since it lacked jurisdiction to entertain it.
[11] The court a quo found further that there was an obligation on the appellant to have embarked on a retrenchment exercise and refused to do so.
Sindane v Prestige Cleaning Services (2010) 31 ILJ 733 (LC) at para16.
Once the event agreed to between an employer and its employee takes place or materializes, there would ordinarily be no dismissal. It has been the position in common law that the expiry of the fixed term-contract of employment does not constitute termination of the contract by any of the parties. It constituted an automatic termination of the contract by operation of law and not a dismissal.
Mahlamu v CCMA [2011] 4 BLLR 381 (LC) at para 23.
In other words, if parties to an employment contract agree that the employee will be engaged for a fixed term, the end of the term being defined by the happening of a specified event, there is no conversion of a right not to be unfairly dismissed into a conditional right. Without wishing to identify all of the events the occurrence of which might have the effect of unacceptably converting a substantive right into a conditional one, it seems to me that these might include, for example, a defined act of misconduct or incapacity, or, as in the present instance, a decision by a third party that has the consequence of a termination of employment.
J3455/17
Sun International Limited and Another v SACCAWU and Others (J3455/17) [2017] ZALCJHB 501 (31 December 2017)
[11] The distinction between changes to terms and conditions of employment, as opposed to mere work practices, has enjoyed the attention of this Court on several occasions.
Johannesburg Metropolitan Bus Services (Pty) Ltd v SAMWU and Others [2011] 3 BLLR 231 (LC) par 36.
[36] The question remains whether it [the new shift schedule] amounts to a unilateral change to terms and conditions of employment. If the shift schedules comprise terms of employment, they could only be changed by agreement; and if it were to be changed unilaterally, the unions could embark on a protected strike.[37] In SA Police Union v National Commissioner of the SA Police Services [2006] 1 BLLR 42 (LC) this court dealt with a very similar question. In that case, SAPS implemented an 8 hour shifty system in the place of the prevailing 12 hour system. The trade union objected on the basis that it was a unilateral change to terms and conditions of employment. Murphy AJ commented as follows after having regard to the relevant collective agreement and contracts of employment:In short, it was not a term of the contract of employment that employees working 12 hour shifts would always be entitled to do so. Without express, implied or tacit contractual rights to such effect, the employees do not have vested right to preserve their working times unchanged for all times. The alternation of shifts does not result in the employees being required to perform a different job thereby entitling them to claim a material breach or alteration in the supposition of the contract. The change in timing does not amount to a change in the nature of the job. The shift system was accordingly merely a work practice not a term of employment.[40] In the case before me, SAMWU has not been able to point to any term contained in a collective agreement or in the bus drivers contracts of employment that accords them a vested right to a specific shift schedule. They have vested rights in relation to maximum working hours; and the right to pick shifts according to seniority. These rights have not been changed or infringed.Conclusion[41] The changes implemented by Metrobus comprise no more than a change in work practice. It does not amount to a unilateral change in the bus drivers terms and conditions of employment. Therefore, the trade unions representing the drivers do not have the right to strike over a unilateral change to terms and conditions of employment in terms of section 64(4) of the LRA.
Ram Transport SA (Pty) Ltd v SATAWU and Another [2011] JOL 26805 (LC)
This distinction has its roots in the principle that employees do not have a vested right to preserve their conditions of employment completely unchanged from the moment they are employed. In A Mauchle (Pty) Ltd t/a Precision Tools v NUMSA [1995] 4 BLLR 11 (LAC) the court distinguished between terms of employment on the one hand and work practices on the other, the latter being subject to the employers prerogative and its introduction not constituting a unilateral change.
Apollo Tyres South Africa (Pty) Ltd v National Union of Metalworkers of South Africa (NUMSA) and Others [2012] 6 BLLR 544 (LC):
It is clear that unless specifically entrenched contractually, the right to regulate shift patterns is the prerogative of the employer.
Thus, even if Diedericks had been employed on a fixed term contract, it did not end at the expiry of that term but was terminated before it had elapsed.
[14] Consequently, I am satisfied that Diedericks was dismissed on 28 April 2016. Further, as no reason was given for his dismissal nor was any procedure followed associated with such a reason, his dismissal was substantively and procedurally unfair.
JR2319/17
JBC Roof Cover (Pty) Ltd v Motsoeneng N.O. and Others (JR2319/17) [2017] ZALCJHB 470 (15 December 2017)
Despite its difficulties, it serves the important purpose of ensuring that where the parties have decided that their contract should be recorded in writing and that such contract shall be the sole, complete record of their agreement, their decision will be respected, and the resulting document, or documents, will be accepted as the sole evidence of the terms of the contract. As it was expressed by Corbett JA, in Johnston v Leal:It is clear to me that the aim and effect of this rule is to prevent a party to a contract which has been integrated into a single and complete written memorial from seeking to contradict, add to or modify the writing by reference to extrinsic evidence and in that way to redefine the terms of the contract . . .To sum up, therefore, the integration rule prevents a party from altering, by the production of extrinsic evidence, the recorded terms of an integrated contract in order to rely upon the contract as altered.[1]...The learned authors go on to state:One does not need a very fertile imagination to see how, necessary as the rule is, it can lead to injustice if rigorously applied, by excluding evidence of what the parties really agreed. It has therefore been the courts constant endeavour to prevent the rule being used as an engine of fraud by a party who knows full well that the written contract does not represent the true agreement. In the nature of things, this endeavour to achieve a fair result without destroying the advantages inherent in written contracts has led to some decisions that are difficult to reconcile. Perhaps the best way to look at the rule is to see it as a backstop that comes into operation only in the absence of some more dominant rule, giving way to the rules concerning misrepresentation, fraud, duress, undue influence, illegality or failure to comply with the terms of a statute, mistake, and rectification. If it did not do so, none of these rules would apply to written contracts, which would be absurd. In all such cases, of course, the burden is on a party who has signed a written contract to displace the maxim caveat subscriptor by proving lack of the necessary animus[2]
JR318/15
Sithole v Metal and Engineering Industries Bargaining and Others (JR318/15) [2017] ZALCJHB 434; (2018) 39 ILJ 472 (LC) (24 November 2017)
[8] In terms of section 38(1) of the Immigration Act[2] no person shall employ an illegal foreigner; a foreigner whose status does not authorise him or her to be employed by such person; or a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner's status.
Discovery Health Limited v Commission for Conciliation, Mediation and Arbitration and Others [2008] ZALC 24; [2008] 7 BLLR 633 (LC); (2008) 29 ILJ 1480 (LC) at para 54.
a) The contract of employment concluded by Discovery Health and Lanzetta was not invalid, despite the fact that Lanzetta did not have a valid work permit to work for Discovery Health. For this reason, Lanzetta was an 'employee' as defined in s 213 of the LRA and entitled to refer the dispute concerning his unfair dismissal to the CCMA.b) Even if the contract concluded between Discovery Health and Lanzetta was invalid only because Discovery Health was not permitted to employ him under s 38(1) of the Immigration Act, Lanzetta was nonetheless an 'employee' as defined by s 213 of the LRA because that definition is not dependent on a valid and enforceable contract of employment.
JR2711/14
Aveng Water (Pty) Limited v Nelson and Others (JR2711/14) [2017] ZALCJHB 422 (17 November 2017)
IMATU and Others v City of Johannesburg Metropolitan Municipality and Others [2014] 6 BLLR 545 (LAC)
SA Rugby Players Association and Others v SA Rugby (Pty) Limited and Others (2008) 29 ILJ 2218 (LAC)
The employee bears the onus to establish that he was dismissed. He must therefore prove on a balance of probabilities that he reasonably expected his employer to renew the fixed term contract of employment on the same terms and that the employer refused to do so. The employee had to adduce evidence which, objectively considered, established a reasonable expectation. The test to establish the reasonableness of the expectation is an objective one. In SA Rugby Players Association & Others v SA Rugby (Pty) Ltd & Others; SA Rugby (Pty) Ltd v SA Rugby Players Union and Another the test was formulated thus: would a reasonable employee in the circumstances prevailing at the time have expected the employer to renew his or her fixed term contract on the same or similar terms.When assessing whether an expectation is reasonable all the surrounding facts and circumstances should be considered including the terms of the contract of employment, promises made by the employer regardless of contractual terms which gainsay what the employer promised and the general conduct of the parties.
[27] In my view the First Respondent could not reasonably have interpreted Hendriks email as an unequivocal intent on the part of the Applicant not to terminate his employment before project completion.
JS237/15
National Union of Metalworkers of South Africa and Another v Transalloys (Pty) Ltd (JS237/15) [2017] ZALCJHB 364 (21 September 2017)
remunerated at salary level 5C and the evidence was that there is no difference between the duties and responsibilities of the lab analysts employed and remunerated on level 5C and the employees who were remunerated on level 5A
[20]The parties agreed that the issue this Court has to decide is whether there was a breach of contract.
Sonap Petroleum (SA)(Pty) Ltd v Pappadogianis
In my view therefore, the decisive question in a case like the present is this: did the party whose actual intention did not conform to the common intention expressed, lead the other party, as a reasonable man, to believe that his declared intention represented his actual intention?.To answer this question, a three-fold enquiry is usually necessary, namely, firstly, was there a misrepresentation as to one partys intention, secondly, who made that representation and thirdly, was the other party misled thereby. The last question postulates two possibilities: was he actually misled and would a reasonable man have been misled?
26] A mistake will be treated as a iustus error if the other party ought, as a reasonable person, to have known of it and where the offer made is snapped up when the person purporting to accept the offer knows or ought to know that there was no intention to make the offer as it appears from the wording of the contract. This was also accepted in Sonap Petroleum where the court held that:If he realised (or should have realised as a reasonable man) that there was a real possibility of a mistake in the offer, he would have had the duty to speak and to enquire whether the expressed offer was the intended offer.
[32]The fact that the contract was signed by the general manager does not automatically mean that a contract that contains an error should remain intact and be enforceable, even where the contract indeed contains an error, simply because it was signed by the general manager. This Court has to consider thecontext within which the contract came into existence. [33] I am persuaded that the inclusion of level 5A in the offer made to the employees was a bona fide error as the employees were to be appointed on level 5C. I am further satisfied that the Respondent in adjusting the employees salary levels to level 5C corrected the error that was made and that this does not constitute a breach of contract but rather a rectification.
JS854/13
Metal Industries Benefit Funds Administrator v Myburgh (JS854/13) [2017] ZALCJHB 317 (29 August 2017)
The amount he would have been undertaken to pay the applicant would have placed it in the same position as it would have been if he had not prematurely terminated his employment, leaving aside the question of other damage it may have suffered by any work interruption caused by his termination. I mention this conjectural situation merely to demonstrate that it is difficult to see how the applicant can justify its claim to recover both the initial recruitment fee and the recruitment fee it paid for the respondents replacement. It is only the second recruitment fee which is an expense which can reasonably be attributed to the respondents breach.
South African Clothing and Textile Worker's Union and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR686/2015) [2017] ZALCJHB 24 (26 January 2017)
Wallisv Thorpe and another [2010] 31 ILJ 1254 (LC)
In relation to costs, this court has a discretion in terms of s 162 to make an order for costs according to the requirements of the law and fairness. The ordinary rule, ie that costs follow the result, is a factor to be taken into account, but it is not a determinative factor.
Public Servants Association of SA on behalf of Khan v Tsabadi NO andothers 2012 33 ILJ 2117 (LC).
unless there are sound reasons which dictate a different approach, it is fair that the successful party should be awarded her costs. The successful party has been compelled to engage in litigation and compelled to incur legal costs in doing so. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in this court, whether as applicant, in launching proceedings or as respondent opposing proceedings.
JS418/15
Venter v Symington and De Kok (JS418/15) [2017] ZALCJHB 301; (2017) 38 ILJ 2828 (LC) (23 August 2017)
She claimed that she calculated the overtime hours she had worked by using the times that she accessed and exited her computer using her personal code and password. There was a clocking system at the door but this was not always reliable and was not used to calculate her claim. She agreed that the security access record was not used as a clocking record for salary purposes. However, it did provide some evidence of her hours of attendance at work.
[22] Consequently, the respondents failure to keep a record of Venters hours worked means that it failed to keep a record relevant to these proceedings and therefore insofar as it claims it is not liable for overtime pay it must prove it acted in compliance with the provisions of the BCEA relating to overtime pay.
I appreciate that this onus is more difficult to discharge in the absence of the record of hours the employer is required to maintain, but as long as employees can establish on a balance of probability that they did work overtime on certain occasions, that should be enough to shift the burden of proving compliance with the BCEA overtime regime to the employer, if the employer kept no records of working time.
It does not take much insight to appreciate the harm that the individual respondents would suffer should they be deprived of such work. But this kind of dependency and possible harm in itself is not sufficient to establish the existence of an employment relationship, and would be a situation experienced by most independent service providers who dedicate most of their services to one customer.
Beya (2015) 36 ILJ 1553 (LC) at para 37. See also AVBOB Mutual Assurance Society v Commission for Conciliation, Mediation and Arbitration, Bloemfontein and Others (2003) 24 ILJ 535 (LC) at 538E-H; Kambule (supra) at para 30.
In fact, and in my view, an independent contract service provider who dedicates most of its services to one customer would equally be dependent, from an economic perspective, on such customer. Similarly, where this customer terminates the service relationship with such service provider, it would be economically prejudicial to the service provider. But the service provider still remains economically active and can seek work elsewhere.
State Information Technology Agency (2008) 29 ILJ 2234 (LAC)
'A starting-point is to distinguish personal dependence from economic dependence. A genuinely self-employed person is not economically dependent on their employer because he or she retains the capacity to contract with others. Economic dependence therefore relates to the entrepreneurial position of the person in the marketplace. An important indicator that a person is not dependent economically is that he or she is entitled to offer skills or services to persons other than his or her employer. The fact that a person is required by contract to only provide services for a single ''client' is a very strong indication of economic dependence. Likewise, depending upon an employer for the supply of work is a significant indicator of economic dependence.'
Miskey and Others v Maritz NO and Others (2007) 28 ILJ 661 (LC) at para 27. See also Kambule (supra) at para 38.
Furthermore there is no prohibition against taking other employment or undertaking business operations by the members of the board in the Act under which they were appointed. The fact that they concentrated on the duties as members of the board was their own choice
Kambule (supra) at para 7.
Reason dictates that the test is qualitative rather than quantitative. Even if it is useful to list factual indicators by category, the nature of the relationship cannot be determined simply by comparing the number of indicators for and against the existence of an employment relationship. This is because some indicators necessarily tell us far more about the substance of the relationship than others
deliberate design perpetrated by all parties to the relationship, of having employees, side by side with contractors, in the applicant. All this, in my view, makes it likely that both the contracting parties purposefully decided not to integrate the individual respondents into the applicants normal employment environment, which in fact could have been the case if this is what they wanted. This choice is clearly enshrined in the unequivocal terms of the contracts, and the individual respondents must be held bound to such kind of choices...hey are actually called, freelancers.
hey never received any of the benefits associated with the applicants employees, which is again a situation inconsistent with integrating the individual respondents into the applicant as employees.
53]As to the work done in terms of the relationship between the parties, it is in my view not about the personal services of the applicants to the third respondent. As I have dealt with above, it the product of the labour, being the video editing services and the end product ready for broadcast, that is the only real purpose of the relationship between the parties.
Smit v Workmen's Compensation Commissioner 1979 (1) SA 51 (A) at 61A B.
the object of the contract of service is the rendering of personal services by the employee... to the employer... The services or the labour as such is the object of the contract. The object of the contract of work is the performance of a certain, specified work or the production of a certain specified result. It is the product or the result of the labour which is the object of the contract.
utilize the applicants infrastructure and equipment in discharging their services...cannot serve to establish that the individual respondents are therefore integrated into the organization.
Kambule (supra) at para 34.
Similarly, the fact that the station provided the technical infrastructure necessary for production of the programme, is little different in my view from an airline using freelance pilots providing the aircraft which they fly. It is true that if Kambule had produced the programme in his own studios, that would have been a clear indication of his organisational independence, but the absence of that does not mean that Kambule's economic activities were all an integral part of the station's business. ...It may well be that the applicant did not pursue other remunerative opportunities with any enthusiasm and relied on his income from the contract with the station, but he never claimed he was prevented from doing so. I am satisfied that he retained sufficient independence to do other work in the media field or elsewhere.
deductions were made from the invoice payments to the individual respondents, for taxation, and that IRP5s
Total SA (Pty) Ltd v National Bargaining Council for the Chemical Industry and Others (2013) 34 ILJ 1006 (LC) at para 20.
Whilst I agree with the third respondent that the use of payslips, PAYE and UIF deductions are factors that may point towards an employment relationship, that does not constitute conclusive evidence of the true nature of the relationship. Similarly, as has been stated in a number of decisions of the court, non-usage of payslip or PAYE and UIF deductions are not indicative of the true nature of the relationship.
This deduction of taxation is indeed required by taxation law, and its deduction does not translate into employment.
do not work at the beck and call of the applicant.
paid leave or was ever given approved paid leave.
Dempsey (supra) at 384G-J.
. The appellant had no set business hours, provided only that he attended to the needs of the estate agents. The appellant was further entitled to leave as and when he desired. His only obligation being to advise the respondent in advance so that alternative arrangements could be made..... These factors, not specifically relevant to the appellant's management function, indicate an absence of control, or to put it another way, a large degree of autonomy of the appellant.
submitted invoicesfor work done, at a prescribed rate, and were paid on approval of theseinvoices through the applicants normal creditor payment system. In simple terms, they were not part of the applicants payroll.
Total (supra) at paras 22 23. See also Kambule (supra) at para 35; Miskey and Others v Maritz NO and Others (2007) 28 ILJ 661 (LC) at paras 26 27.
The third respondent does not deny that he was paid on the basis of invoices submitted for the French lessons provided and this fluctuated from month to month. It seems to me strange that the third respondent who, on his own version was employed on a flexitime basis, was entitled to receive payment from the applicant as and when he did French translations, would say he was an employee.
JR745/16
South African Broadcasting Corporation (Soc) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR745/16) [2017] ZALCJHB 76 (8 March 2017)
In simple terms, how the services are to be rendered falls within the realm of the service providers own particular knowledge and expertise. The only control and supervisory functions of the recipient of the service would relate to issues such as making work available and exercising quality control. In short, the third party contractor is not interested in the work of the service providerper se, but it is interested in the particular skill brought to bear by the service provider and the outcome arrived at in applying that skill set.
Colonial Mutual Life Assurance v MacDonald 1931 AD 412 at 434
.one thing appears to me to be beyond dispute and that is that the relation of master and servant cannot exist where there is a total absence of the right of supervising and controlling the workman under the contract; in other words, unless the master not only has the right to prescribe to the workman what work has to be done, but also the manner in which such work has to be done
Kambule v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 2234 (LC) at para 31.
The fact that the station's contract with Kambule as a radio personality was clearly because it wanted to harness his unique style of presentation and edgy programme content to its station profile.
SA Broadcasting Corporation v McKenzie (1999) 20 ILJ 585 (LAC) at para 9.
The employee is subordinate to the will of the employer. He is obliged to obey the lawful commands, orders or instructions of the employer who has the right of supervising and controlling him by prescribing to him what work he has to do as well as the manner in which it has to be done. The independent contractor, however, is notionally on a footing of equality with the employer. He is bound to produce in terms of his contract of work, not by the orders of the employer. He is not under the supervision or control of the employer. Nor is he under any obligation to obey any orders of the employer in regard to the manner in which the work is to be performed. The independent contractor is his own master.The application of the aforesaid dictum to the facts in casu points towards the existence of an independent contracting relationship, and not one of employment.
LAD Brokers (2001) 22 ILJ 1813 (LAC) at paras 2324.
It is not unusual for independent contractors to be subject to some measure of contractual control in respect of standards, employees, working hours and the like. That is not the type of control referred to by this court in the quoted portion of the judgment. The control envisaged is immediate and recurring. It is incorrect to describe contractual terms which are of a limiting nature or introduce some sort of supervision in respect of set standards as derogating from the notional footing of equality between the contracting parties in an independent contractual relationship. Such limitations upon conduct or standard do not bring about the supervision or control envisaged by this court
Kambule (supra) at para 38.
The extent to which he worked in the organisational context of the station was limited to what was strictly necessary for the purposes of producing and broadcasting his programme.
Phaka (supra) at para 33.
The levels of control and direction reserved to the company by the contract in relation to the routes, hours of performance, vehicle maintenance, branding etc, are all essential requirements of the contract intrinsic to the nature of the services to be performed by the company to its clients. The company transports sensitive financial information and does so in accordance with the needs of its clients. It is obliged to delegate those requirements to its subcontractors. By virtue of its character, the business of couriering financial documents must be done efficiently during business hours on conditions that cannot be left to the discretion of the subcontractors. These constraints do not in the operational circumstances of these peculiar contracts alter the relationship to one of employment
There is no immediate and recurring control of the applicants. Any control exercised is just to ensure a standard and properly allocate available resources. It does not derogate from the independent nature of the relationship and services provided by the applicants to the third respondent on this basis.
JS1042/14
Van Zyl and Others v Tergro Group of Companies (Pty) t/a Harcourts Tegro Group (JS1042/14) [2017] ZALCJHB 477 (19 December 2017)
Waiver takes place where a right or remedy or privilege or power or an interest or benefit is not asserted...[56] The conduct of Grobler in the light of the above objective factors can only lead to the invariable conclusion that indeed the applicants were entitled to reasonably believe that the respondent had waived its rights in respect of the enforcement of notice period and the restraint provisions.
National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and Others 2015 (2) BCLR 182 (CC) at paragraphs 60 61. See also Hepner v Roodepord-Maraisburg Town Council 1962 (4) SA 772(A) at 778 D-F where Steyn CJ held that:There is authority for the view that in the case of waiver by conduct, the conduct must leave no reasonable doubt as to the intention for surrendering the right in issue (Smith v Momberg 1895}SC 295 at page 304; Victoria Falls and Transvaal Power Co Ltd v Consolidated Langlaagte Ltd 1915 AD 1 at p 62) but in Martin v de Kock 1948 (2) SA 719 (AD) at p 733 this Court indicated that that view may possibly require reconsideration. It sets, I think, a higher standard than that adopted in Laws v Rutherfund 1924 AD 261 at p263, where Innes CJ says:The onus is strictly on the appellant. He must show that the respondent, with full knowledge of her right, decided to abandon it, whether expressly or by conduct plainly inconsistent with an intention to enforce it.This accords with the test applied in City of Cape Town v Kenny 1934 AD 543 and was followed in Collen v Rietfontein Engineering Works 1948 (1) SA 413 (AD) at p 436 and Linton v Corser 1952 (3) SA 685 (AD)at p 695. Cf. Ellis and others v Laubcher 1956 (4) SA 692 (AD) at p 702). In my opinion the test is more correctly stated in these cases.
. Waiver is the legal act of abandoning a right on which one is otherwise entitled to rely. It is not easily inferred or established. The onus to prove it lies with the party asserting waiver. That party is required to establish that the right-holder, with full knowledge of the right, decided to abandon it. And,So, waiver depends on the intention of the right-holder. That can be proved either through express actions or by conduct plainly inconsistent with an intention to enforce the right. It may be inferred from the outward manifestations of the right-holders intention:The outward manifestations can consist of words; of some other form of conduct from which the intention to waive is inferred; or even of inaction or silence where a duty to speak exists. (Authorities omitted)
Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA) at paras 15 19
Inferred waiver:Waiver is first and foremost a matter of intention. Whether it is the waiver of a right or a remedy, a privilege or power, an interest or benefit, and whether in unilateral or bilateral form, the starting point invariably is the will of the party said to have waived it
[47] The test for determining a waiver is objective[9], and is adjudged by its outward manifestations by a reasonable person standing in the applicants shoes. The outward manifestations may consist of words; some other form of unequivocal conduct from which the intention to waive is inferred; or even inaction or silence on a party where a duty to act or speak exists[10].
J 601/2021
Nabbie v Ferrari and Others (J 601/2021) [2022] ZALCJHB 322 (21 November 2022)
[7]...A claim of unfair dismissal is one founded in statute, in particular section 185 of the LRA, which establishes a right of every employee not to be unfairly dismissed. A claim in contract is based on the terms of the contract between the parties. The courts have long recognised that a termination of employment may give rise to causes of action based both in the LRA and in contract. However, these are conceptually discrete claims, and different dispute resolution mechanisms apply. In any event, as I have indicated, the applicant has confirmed both in his papers and during argument that his case of action is an alleged unfair dismissal.
[8] For the above reasons, the court patently has no jurisdiction to entertain the application and it accordingly stands to be struck from the roll.
JS277/18
Tshabalala v Total South Africa (PTY) Ltd (JS277/18) [2022] ZALCJHB 289 (19 October 2022)
entered into that agreement under duress
[25]. The elements of the contract-law defence of duress are the following:25.1 The fear must be reasonable;25.2 The fear must arise from a threat of considerable evil to the person alleging duress or his family;25.3 The threatened harm must be evil;25.4 The threatened harm must be unlawful or contra bonis mores; and25.5 The moral pressure used must have resulted in the person alleging duress acting in the prejudicial manner he did.[Arend and Another v Astra Furnitures (Pty) Ltd 1974 (1) SA 298 (C), at 306A-C.]
[26]. In [Kgwedi v Bidvest Protea Coin [2019] 6 BLLR 562 (LC), paragraph [38].] the Court confirmed that when determining the reasonableness of the fear, the employees position and status must be considered.
[27]. Recently, in [Makhothokho and Others v Pick n Pay Supply Chain (Pty) Ltd and Another (JS345/17) [2022] ZALCJHB 114 (24 May 2022)] the Court was faced with a case similar to the present, of employees who sought to resile from a termination of employment agreement in terms of which they were paid severance benefits more favourable than the statutory severance pay. The employer in that matter had similarly informed the employees to sign the termination agreements in order to receive the favourable severance benefits. The Court, after confirming the trite principle that no person can be allowed to take up two positions that are inconsistent with one another, held that:[92] The Applicants cannot dispute or deny the validity of an agreement on the one hand and retain the benefits they had received from the same agreement on the other hand. That is simply incompatible. The Applicants cannot have their cake and eat it.
[31]. The defence of duress, against the respondents reliance upon the termination agreement, must fail.
DA10/19
Kubeka and Others v Ni-Da Transport (Pty) Ltd (DA10/19) [2020] ZALAC 55; (2021) 42 ILJ 499 (LAC); [2021] 4 BLLR 352 (LAC) (24 November 2020)
[11] The appellants contend that the Labour Court erred. They maintain that the employment contracts of the appellants were restored by the order of Gush J in July 2013 and their claim is for arrear wages following the restoration of the employment contract. The respondent counters that the restoration of the employment contract could have occurred only if the appellants had tendered their services after the ruling of the SCA in November 2014 and the respondent accepted their tender.
[7]...They did not seek prospective reinstatement, nor did they (after the dismissal of the petition to the SCA in November 2014) tender their services to the respondent.[]...It is common cause that when the order once again became enforceable on 18 November 2014 the appellants did not make a second tender, were not reinstated and the respondent did not accept the tender of 29 July 2013.[]... It held that when the ruling of the SCA in effect exhausted all appeal options on 18 November 2014, the appellants ought to have launched contempt proceedings seeking retrospective reinstatement rather than a contractual claim for arrear wages in terms of section 77(3) of the BCEA.
[]...National Union of Mineworkers SA obo Fohlisa & others v Hendor Mining Supplies (A Division of Marschalk Beleggings (Pty) Ltd) [(2017) 38 ILJ 1560 (CC).] (Hendor). It concluded:Back pay is only contractually owing upon the full restoration of the employment contract. This required more than a tender of services by the unfairly dismissed employees. The employer should also have accepted those employees back into its employ. If the employer failed to do so, the correct legal path was to have forced it to restore the contract of employment by means of contempt proceedings.the judgment ordering reinstatement does not in and of itself reinstate the contract of employment; rather, it is an order directing the employer to accept those services. If the employer fails to do so, the remedy is to bring contempt proceedings to compel the employer to do so.
[17]...Likewise, if the employer is able to demonstrate that an employee would not have been able to render past services (for reasons such as death or re-employment), the employee concerned would not be able to claim arrear wages for the relevant period.[22]...a pre-condition to jurisdiction under the LRA, confirms that a dismissal means an employer has terminated a contract of employment with or without notice and section 193(1)(a) of the LRA does not permit an order resuscitating the contract but only an order directing the employer to reinstate the employee.[24] These dicta do not clearly affirm that the effect of a reinstatement order is merely to direct the employer to accept a tender of the employees services and that no right to arrear wages arises until it elects to do so; though the resuming of employment implies that the contract of employment was not extant during the period of litigation. However, the dicta can be interpreted equally to mean that the reinstatement order itself puts the employee back into the same job or position he or she occupied before the dismissal on the same terms and conditions. Likewise, the reinstatement order (not the employers acceptance of the tender of services) is aimed at placing an employee in the position he or she would have been but for the unfair dismissal.[27] The Labour Court held that the claim for arrear-wages for the period 1 January 2007 to 29 September 2009 (the date of reinstatement) constituted a judgment debt, and therefore would only prescribe after 30 years. The Labour Appeal Court overturned the decision of the Labour Court, holding that a claim for arrear wages arising out of a reinstatement order is a debt under the reinstated employment contract, and would therefore prescribe after three years[30]...The claim for the second period could not be a judgment debt because the Labour Court did not and could not have adjudicated upon the question of wages which had not fallen due for payment at the time it made the reinstatement order. The claims for remuneration for the second period were debts that only became due when the contracts of employment on which they were based were restored on 29 September 2009, being the day the tender of services by the employees was accepted by the employer.[31]...The judges also agreed that a reinstatement order is an order ad factum praestandum - an order to do something (as opposed to an order ad pecuniam solvendam, an order to pay something) which must be enforced through contempt proceedings.[32]...If the employee presents her- or himself for work, but the employer refuses to accept her or him back, her or his remedy is not contractual. It is to bring the employer before court for contempt of court. What contempt? For not complying with the judgment debt embodied in the order to accept her or him back into employment[18]... I repeat: the order does not reinstate; it orders the employer to do so. Indeed, section 193(1)(a) says as much.[20]
[35] The decision of the Constitutional Court in Hendor therefore leaves little doubt that a reinstatement order does not restore the contract of employment and reinstate the unfairly dismissed employees. Rather, it is a court order directing the employees to tender their services and the employer to accept that tender. If the employee fails to tender his or her services or the employer refuses to accept the tender, there is no restoration of the employment contract. If the employer fails to accept the tender of services in accordance with the terms of the order, the employees remedy is to bring contempt proceedings to compel the employer to accept the tender of services and thereby to implement the court order.
[38] A requirement that back pay is only due and payable on reinstatement is in keeping with the remedial scheme and purpose of section 193 of the LRA. As Mr Watt-Pringle SC, counsel for the respondents, correctly submitted, if an employee in receipt of a reinstatement order could on the strength of the order alone claim contractual payment for the retrospective part of the order without actually seeking reinstatement (tendering prospective services), it would convert a reinstatement remedy (which requires a tender of services) into a compensation award (which does not), in excess of the statutory limitation on compensation awards. Such an outcome would be inconsistent with the purpose of sections 193 and 194 of the LRA. An unfairly dismissed employee must elect his or her preferred remedy and if granted reinstatement must tender his or her services within a reasonable time of the order becoming enforceable. If reinstatement has become impracticable through the effluxion of time, for instance where the employee has found alternative employment, he or she should seek to amend his or her prayer for relief to one seeking compensation.
[39] It is common cause that the respondent did not accept the earlier tender (suspended by the appeals process) of the appellants (other than the re-employed appellants) after the reinstatement order became enforceable in November 2014. Consequently, their contracts of employment were not revived and they acquired no contractual right to back pay which could be claimed in terms of section 77(3) of the BCEA. As the Labour Court correctly held, in terms of Hendor they were required to bring contempt proceedings to compel the employer to accept their tender. Their appeals accordingly must be dismissed.[43.2]...are upheld and the order of the Labour Court in relation to these appellants is varied and substituted with an order directing the respondent to pay them back pay in the individual amounts .
J 737/22
Slo Jo Innovation (Pty) Ltd v Beedle and Another (J 737/22) [2022] ZALCJHB 212 (10 August 2022)
[49] The general principles applicable to restraint agreements are well-established. In Massmart Holdings v Vieira and another[Unreported judgment under case no: J1945-15 delivered on 13 November 2015 at para 4.] (Massmart) the Court summarised them as follows:Restraint agreements are enforceable unless they are unreasonable (see Magna Alloys and Research (SA) (Pty) Ltd v Ellis [1984] ZASCA 116; 1984 (4) SA 874 (A)). In general terms, a restraint will be unreasonable if it does not protect some proprietary interest of the party seeking to enforce a restraint. In other words, a restraint cannot operate only to eliminate competition. The party seeking to enforce a restraint need only invoke the restraint agreement and prove a breach of the agreement, nothing more. The party seeking to avoid the restraint bears the onus to establish, on a balance of probabilities, that the restraint agreement is unenforceable because it is unreasonable (see 2013 (1) SA 135; Magna Alloys and Research (SA) (Pty) Ltd supra; Den Braven SA (Pty) Ltd v Pillay and another 2008 (6) SA 229 (D)).[50] The position in our law is, therefore, that a party seeking to enforce a contract in restraint of trade is required only to invoke the restraint agreement and prove a breach thereof.
J 880/2022
Mokoroane v Department of Social Development: North West Provincial Government and Another (J 880/2022) [2022] ZALCJHB 220 (5 August 2022)
[47] The Applicant failed to make out a case that his contract was subject to an implied term that he would be afforded a hearing before his contract was terminated by providing notice to that effect, as contemplated in clause 5.1.3 of the contract. Equally so, there is no clause in the contract that provides that the parties have to agree to the termination of the contract on notice. I re-iterate that the non-variation clause in the contract is not insignificant and has to be kept in mind.
[46] In Old Mutual Limited and Others v Moyo and Another[(2020) 41 ILJ 1085 (GJ).] (Old Mutual) the appeal arose as a result of Old Mutuals termination of Mr Moyos contract of employment in terms of clause 24.1, which provided that either party may, on six months notice, terminate the agreement. The Full Bench on appeal held that[]:[59] It seems to me, with respect, that despite Mr Moyo's express disavowal of any reliance on his rights under the LRA, the court a quo viewed the interdict application through a labour-law prism, i.e. the perceived unfairness of Old Mutual having raised allegations of a conflict of interest and misconduct on the part of Mr Moyo, and then proceeding instead to terminate the employment contract on notice in terms of clause 24.1.1 without first affording him a hearing before the termination. However, there is no such self-standing common-law right to fairness in employment contracts. A right to be treated fairly when a contract is terminated only exists if it is expressly or impliedly incorporated in the contract.[60] In South African Maritime Safety Authority v McKenzie 2010 (3) SA 601 (SCA) paragraphs 32-33 and 55-58, the Supreme Court of Appeal had occasion to consider a contract of employment which provided for termination on notice. Wallis AJA held that a right to be treated fairly upon termination could only be held to exist if it is expressly or impliedly incorporated in the contract and that such a term should not be imported into a contract by developing the common law. It was held that the contract in question had been lawfully terminated on notice and there was no requirement for fairness, expressly or impliedly, incorporated into the contract.[61] In Transman (Pty) Ltd v Dick and another 2009 (4) SA 22 (SCA); [2009] 7 BLLR 629 (SCA) para 18, any reliance on the LRA was also abandoned. It was argued that the employee nevertheless was entitled to a hearing before the termination of his employment contract and that such entitlement arose from an implied term of the contract. But Jafta JA held that there was a duty on him "not only to plead the contractual claim but also to prove facts from which the contended tacit term could be inferred", which "he has failed to do and as a result there is no factual basis for importing into the employment agreement the term that he was entitled to a hearing before the board terminated his employment". Accordingly, so it was held, "the court below erred in assuming that his employment contract "was subject to an implied term that he would be afforded a fair hearing before he was dismissed".[62] No implied term of fairness has been pleaded in Mr Moyo's founding affidavit. Had he intended to rely upon such a term, it was his duty not only to plead the contractual term, but also to establish facts from which such a term could be inferred. The court a quo, in my respectful view, erred insofar as it might have assumed that the contract of employment was subject to an implied term that Mr Moyo would be afforded a hearing before the employment contract was terminated by providing six months' notice to that effect. The questions whether Old Mutual was contractually entitled to invoke the no-fault termination on six months' notice provision of the employment contract (clause 24.1.1) as it did, and whether clause 25.1.1 expressly affords Mr Moyo a right to a prior internal disciplinary enquiry or a pre-dismissal arbitration before the invocation of the no-fault termination, as I have mentioned, depend on an interpretation of the employment contract, to which I now turn.
[51] The Applicant has to prove that the terms of his contract of employment do not allow for the termination of his employment on 30 days notice and that it provides for a process whereby he is to be engaged in some form of negotiation prior to the termination of his contract.
JR825/21
JR1351/19
Solidarity obo Swart v Kusile Civil Works Joint Venture and Others (JR1351/19) [2022] ZALCJHB 183 (7 July 2022)
[4] Sadly, Mr Swarts contract of employment is not drafted with clarity as to the date or event that would lead to its termination. In terms of clause 1.3.7 of the contract of employment, the end date is defined as the date of automatic expiration of the appointment referred to in item 10 in Annexure A or the termination of the project/assignment for which the employee has been appointed as reflected in item 7 of Annexure A, whichever occurs first[2]. It is common cause that item 7 in Annexure A to the fixed term contract which deals with the project or assignment is blank. While item 10 of Annexure A refers to the end date as the KCWJV Completion.[3]
[13] To the extent that the arbitrator only pronounced on the first issue pertaining to whether Mr Swart was dismissed, the review test is correctness and not reasonableness.[6]
[14] As mentioned above, the question at issue in this matter is the contractual interpretation, particularly, the role of the surrounding circumstances and the nature of the evidence that can be considered. In Natal Joint Municipal Pension Fund v Endumeni Municipality (Endumeni),[2012 (4) SA 593 (SCA) at para 18.] the Supreme Court of Appeal (SCA) reaffirmed the correct approach as follows:Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation. In a contractual context it is to make a contract for the parties other than the one they in fact made. The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document. (Emphasis added)
[15] In Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others[2022 (1) SA 100 (SCA) at paras 39-42.] (Capitec Bank), the SCA aptly expounded the approach articulated in Endumeni which was subsequently endorsed by the Constitutional Court in University of Johannesburg v Auckland Park Theological Seminary and Another[2021 (6) SA 1 (CC) at paras 64-68.] (University of Johannesburg). It was stated:[39] the Constitutional Court affirmed that an expansive approach should be taken to the admissibility of extrinsic evidence of context and purpose, whether or not the words used in the contract are ambiguous, so as to determine what the parties to the contract intended. In a passage of some importance, the Constitutional Court sought to clarify the position as follows:Let me clarify that what I say here does not mean that extrinsic evidence is always admissible. It is true that a courts recourse to extrinsic evidence is not limitless because interpretation is a matter of law and not of fact and, accordingly, interpretation is a matter for the court and not for witnesses. It is also true that to the extent that evidence may be admissible to contextualise the document (since context is everything) to establish its factual matrix or purpose or for purposes of identification, one must use it as conservatively as possible. I must, however, make it clear that this does not detract from the injunction on courts to consider evidence of context and purpose. Where, in a given case, reasonable people may disagree on the admissibility of the contextual evidence in question, the unitary approach to contractual interpretation enjoins a court to err on the side of admitting the evidence. There would, of course, still be sufficient checks against any undue reach of such evidence because the court dealing with the evidence could still disregard it on the basis that it lacks weight. When dealing with evidence in this context, it is important not to conflate admissibility and weight.[10][40] This seeks to give a very wide remit to the admissibility of extrinsic evidence of context and purpose. Even if there is a reasonable disagreement as to whether the evidence is relevant to context, courts should incline to admit such evidence, not least because context is everything. The courts may then weigh this evidence when they undertake the interpretative exercise of considering text, context and purpose.[41] The Constitutional Court in University of Johannesburg also recognised the parol evidence rule in our law. It sought to reconcile the generous admissibility of extrinsic evidence of context and purpose and the strictures of the parol evidence rule in the following way:The integration facet of the parol evidence rule relied on by the Supreme Court of Appeal is relevant when a court is concerned with an attempted amendment of a contract. It does not prevent contextual evidence from being adduced. The rule is concerned with cases where the evidence in question seeks to vary, contradict or add to (as opposed to assist the court to interpret) the terms of the agreement[11][42] This reconciliation requires some reflection. It recalls one of the most important debates as to the foundations of the law of contract. Is the meaning of a contract to be understood on the basis of the subjective intentions of the parties to the contract or the objective manifestations of their consensus? The rationale of the parol evidence rule is based on the value of objectivism. Parties enter into written contracts that include clauses affirming the writing to be the exclusive memorial of the parties agreement so as to permit certainty as to the agreement, and avoid making every agreement the starting point of an evidential battle.
[16] In addition, in Capitec Bank, the SCA made the following observations on the implications of the dictum in University of Johannesburg[Capitec Bank at paras 47 51.]:[47] First, it is inevitable that extrinsic evidence that one litigant contends to have the effect of contradicting, altering or adding to the written contract, the other litigant will characterise as extrinsic evidence relevant to the context or purpose of the written contract. Since the interpretative exercise affords the meaning yielded by text no priority and requires no ambiguity as to the meaning of the text to admit extrinsic evidence, the parol evidence rule is likely to become a residual rule that does little more than identify the written agreement, the meaning of which must be determined. That is so for an important reason. It is only possible to determine whether extrinsic evidence is contradicting, altering or adding to a written contract once the court has determined the meaning of that contract. Since meaning is ascertained by recourse to a wide-ranging engagement with the triad of text, context and purpose, extrinsic evidence may be admitted as relevant to context and purpose. It is this enquiry into relevance that will determine the admissibility of the evidence. Once this has taken place, the exclusionary force of the parol evidence rule is consigned to a rather residual role.[48] Second, University of Johannesburg recognises that there are limits to the evidence that may be admitted as relevant to context and purpose. While the factual background known to the parties before the contract was concluded may be of assistance in the interpretation of the meaning of a contract, the courts aversion to receiving evidence of the parties prior negotiations and what they intended (outside cases of rectification) or understood the contract to mean should remain an important limitation on what may be said to be relevant to the context or purpose of the contract. Blair Atholl rightly warned of the laxity with which some courts have permited evidence that traverses what a witness considers a contract to mean. That is strictly a matter for the court. Comwezi is not to be understood as an invitation to harvest evidence, on an indiscriminate basis, of what the parties did after they concluded their agreement. The case made it plain such evidence must be relevant to an objective determination of the meaning of the words used in the contract.[49] Third, Endumeni has become a ritualised incantation in many submissions before the courts. It is often used as an open-ended permission to pursue undisciplined and self-serving interpretations. Neither Endumeni, nor its reception in the Constitutional Court, most recently in University of Johannesburg, evince skepticism that the words and terms used in a contract have meaning.[50] Endumeni simply gives expression to the view that the words and concepts used in a contract and their relationship to the external world are not self-defining. The case and its progeny emphasise that the meaning of a contested term of a contract (or provision in a statute) is properly understood not simply by selecting standard definitions of particular words, often taken from dictionaries, but by understanding the words and sentences that comprise the contested term as they fit into the larger structure of the agreement, its context and purpose. Meaning is ultimately the most compelling and coherent account the interpreter can provide, making use of these sources of interpretation. It is not a partial selection of interpretational materials directed at a predetermined result.[51] Most contracts, and particularly commercial contracts, are constructed with a design in mind, and their architects choose words and concepts to give effect to that design. For this reason, interpretation begins with the text and its structure. They have a gravitational pull that is important. The proposition that context is everything is not a licence to contend for meanings unmoored in the text and its structure. Rather, context and purpose may be used to elucidate the text. (Emphasis added)
[17] Turning to the present case, clearly there is no merit in Solidaritys contention that the arbitrator misconstrued the applicable legal principles pertaining to contractual interpretation. It is clear from the above authorities that the parol evidence rule does not prevent evidence on contractual context and purpose from being adduced.
[19] For whatever reason, in 2014 Eskom and the KCWJV concluded a memorandum of understanding (MoU) wherein the main civil works and completion works were separated, albeit under the original scope of the Main Civil Contract. The main civil works concluded on 30 June 2015, hence fixed term contract employees were demobilised, including Mr Swart.
[21] In my view, the construction Solidarity accords to the phrase KCWJV Completion is untenable. As correctly contended by KCWJV, what would have been the purpose of keeping Mr Swart in its employ when the main civil works, which his contract of employment was subject to, had been completed.
JS331/19
SATAWU obo Ramotsonga v GVR Vervoer B.K Trio Vervoer (JS331/19) [2022] ZALCJHB 178 (30 June 2022)
[10]...The argument by Mr De Villiers that in Kubeka the LAC held that once a tender is not made, a back pay claim does not accrue, amounts to a partial reading of the ratio decidendi of the judgment. It is indeed the current law that what earns an employee a contractual right is not the tender per se but the physical reinstatement acceptance of the tender. In casu, the tender made on 18 May 2017 on the respondents own version was only accepted in July 2017. Had the respondent not accepted the tender, the contractual right would not have accrued[11].
J 146/20
Seroka v Vaal University of Technology (J 146/20) [2022] ZALCJHB 171 (30 June 2022)
[18] Section 158 (1) (c) deals with the powers of the Labour Court and it provides that:(1) The Labour Court may (c) make any arbitration award or any settlement agreement an order of the Court.
[19] In South African Post office Ltd v CWU obo Permanent Part-Time Employees,[[2013] 12 BLLR 1203 (LAC).] the Labour Appeal Court (LAC) held that:[21] Before the Labour Court will grant an order sought in terms of Section 158(1)(c) of the LRA, it must be satisfied, at the very least, that:i. the agreement, is one which meets the criteria set in s 158 (1)(c) read with section 158(1A) of the LRA, and if it is an award, it satisfies the criteria set in section 142A of the LRA;ii. that the agreement or award is sufficiently clear to have enabled the defaulting party to know exactly what it is required to do in order to comply with the agreement or award; and,iii. there has not been compliance by the defaulting party with the terms of the agreement or the award.
[22] Once the Labour Court is satisfied with all of the above then it must, nevertheless, exercise its discretion whether to grant or refuse the order. In exercising the discretion, the Court must take relevant facts and circumstances into account, such as are necessary to satisfy the demands of the law and fairness. Necessarily, each case must be decided on its own facts and circumstances. There is, otherwise, no closed list of factors to be taken into account. A relevant factor is the time it took the party seeking the relief to launch the application to make the settlement or award an order of court. The Labour Court may, for example, be more reluctant to make an award for reinstatement of employees an order of court where the employees unreasonably delayed in seeking the enforcement of the award, yet a delay in years in seeking to make an award for payment a sum of money may not be grounds for refusing to make the award an order of Court. Finally and most crucially it must be remembered that the purpose of making an agreement or award an order of the Labour Court is to compel its enforcement, or enable its execution and not for some other purpose.[3] [Footnotes omitted]
[20] Section 158(1A) of the LRA provides as follows:For the purposes of subsection (1)(c), a settlement agreement is a written agreement in settlement of a dispute that a party has the right to refer to arbitration or to the Labour Court, excluding a dispute that a party is only entitled to refer to arbitration in terms of section 22(4), 74(4) or 75(7).
J 155/2021
Potgieter v Samancor Chrome Limited t/a Tubatse Ferrochrome (J 155/2021) [2022] ZALCJHB 146 (13 June 2022)
[16] In Coca Cola Sabco (Pty) Ltd v Van Wyk,[(2015) 36 ILJ 2013.] the LAC confirmed that a reinstatement award does not cover the period between the award and its implementation. Should an employer refuse to pay an employee for the said period, then the employee has a contractual claim which is a totally different cause of action against the employer. The LAC held that as the reinstatement order only serves to revive the contract of employment, the rights and obligations of the parties would be governed by the contract of employment, Therefore, if the employee, after the reinstatement order and during the time the employer exercises its review and appeal remedies to exhaustion, tenders his services, he does so in terms of the employment contract and is accordingly entitled to payment in terms of the contract. Accordingly, the arrear salaries between the time the order is made, up to the date of implementation of the order would constitute a contractual claim. The employee would have to prove that the contract of employment is extant, that he tendered his labour in terms thereof and that the employer refuses or is unwilling to pay him in terms of the contract. In turn, the employer would have all contractual defences at his disposal.
[17] In National Union of Metalworkers of South Africa obo Fohlisa and others v Hendor Mining Supplies (a division of Marschalk Beleggings (Pty) Ltd)[(2017) 38 ILJ 1560 (CC).] (Hendor) Zondo J (as he then was) dealt with the question of, when an order is granted to reinstate employees and the employer does not allow such employees to work pending its appeal or application for leave to appeal, but later reinstates the employees when its application is dismissed, whether the employees claim for payment of wages for the period that they did not work (while the employer was pursuing its appeal) constitute a judgment debt or a contractual claim. The Constitutional Court confirmed that an employees claim for the payment of wages relating to the period after the grant of a reinstatement order is a contractual claim.
[18] The position is this: a claim for reinstatement or re-employment, backpay or compensation constitutes a debt as envisaged in the Prescription Act. The applicable period of prescription is provided for in section 11(d) of the Prescription Act, which provides that a debt prescribes after three years.[19] The Applicants claim in casu is a contractual claim. The claim for the period between June 2008 and June 2014, is a claim in respect of contractual debt for arrear salary and one to which the principles of prescription apply to.[20] The question is when did prescription commence to run?[21] On the question of when prescription of the contractual claim began to run, the Constitutional Court in Hendor held that as the contractual debts owing to the employees could not have been due before the contracts of employment had been restored, prescription could not have started to run before the date of the restoration of the contracts. Accordingly, the employees could not have instituted legal proceedings to enforce contracts that were not in place yet as the order of reinstatement was suspended during the period that the employer was pursuing appeals. It was only upon the restoration of the employees contracts that they were able to institute legal proceedings.
[24] The Applicants claim for salary for the period between June 2008 and June 2014 is subject to a prescription period of three years, which started to run either in June or September 2014. The Applicant had to institute proceedings within a period of three years from the date on which the debt became due.
[27] Section 15 of the Prescription Act provides that the running of prescription shall be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. Process refers to the specific process described in section 15(6) of the Prescription Act and includes a petition, a notice of motion, a rule nisi, a pleading in reconvention, a third party notice referred to in any rule of court, and any document whereby legal proceedings are commenced.[28] The SCA in Molloy held that[[1997] ZASCA 112; 1998 (2) SA 735 (SCA) at 739I-J, at 740C-E.]:A creditor against whose claim prescription commences to run, may protect himself or herself from its consequences, by causing the interruption of prescription in terms of s 15 of the Prescription Act through the service of any process whereby the creditor claims payment of the debt.
[33] In Police and Prisons Civil Rights Union on behalf of Sifuba v Commissioner of the SA Police Service and others,[7] it was held that the Court does not have a discretion if prescription is indeed established. The Court held that:It is not only an issue of punishment but also an issue of substantive law, finality, certainty, protection of the debtor and the expeditious prosecution and resolution of disputes. The Prescription Act does not give the Court a discretion. If the requirements for a plea of prescription have been established by the party taking the point then that party is entitled as a matter of right to have that plea upheld. Although this court is a court of equity, in my view considerations of equity do not come into play when all the requirements for a successful plea of prescription are established. Extinctive prescription renders unenforceable a right by lapse of time.
J 250/21
Potgieter v Samancor Chrome Limited t/a Tubatse Ferrochrome (J 250/21) [2022] ZALCJHB 83 (6 April 2022)
[10] To the extent that the applicant alleged that he had cancelled the agreement, the difficulty he is faced with is that he has not approached this or any other Court to have the agreement set aside. The second difficulty is that it is significant to note that the applicant purportedly cancelled the mutual termination agreement some two years and eight months since it was concluded. During that period, it was not in dispute that the applicant was paid in accordance with its clause 3, which payment he had retained, and had not tendered to return to the respondent.
[11] Other than the fact that the Agreement remains extant, the applicant can also not extricate himself from its terms in the light of principles set out in two main decisions of this Court[Nkosi v SSG Security Solutions (Pty) Ltd (2020) 41 ILJ 1408 (LC) at 1408 and Makiwane v International Healthcare Distributors (2003) 24 ILJ 2150 (LC)] as relied upon by the respondent. Accordingly, since the applicant has accepted the benefits owing by the respondent arising out of the termination of the employment relationship, and accepted the benefits of the Agreement, he has placed himself beyond the jurisdiction of this Court. On this ground alone, the applicants claim ought to fail. The rights emanating from the agreement of compromise entered into between the parties created new rights and obligations which the applicant was entitled to pursue under the provisions of clause 4.4 of that agreement. The right nonetheless specifically excluded any referral of a dispute related to his reinstatement.
J1544/21
Payflex (Pty) Ltd v Deacon and Others (J1544/21) [2022] ZALCJHB 63 (24 March 2022)
[41] Whilst I accept the principle as argued by Payflex above, the difficulty with this argument in the present matter is that Harraway and Clark are already employees of TymeBank. Harraway works in MoreTyme division, which directly competes with Payflex. Harraway and Clark were Sales Executives of Payflex. On the papers before me, they had access to Payflexs confidential and strategic information. Harraway and Clark were not restrained. There is nothing special that distinguishes Deacon and Mare on the one hand and Harraway and Clark on the other. It is however important to understand that the issue is not that because Harraway and Clark are not restrained, the restraint agreement against Deacon and Mare is not enforceable. The issue is that Harraway (employed from September 2021) and Clark (employed from January 2022) had access to the same confidential information. The fact that there were no restraint agreements with Harraway and Clark does not trivialise or relegate the importance of the fact that they had access to Payflexs confidential information.
[44] Accordingly, I find it difficult to comprehend how it would be reasonable to enforce a restraint agreement against Deacon and Mare when two former Sales Executives, with access to confidential information, joined TymeBank and one joined a division that directly competes with Payflex.
JS 633/18
Yeko v Red Mining South Deep (PTY) LTD (JS 633/18) [2022] ZALCJHB 74 (22 March 2022)
[11] On application of the law as espoused above, it was not necessary for Red Mining to have given a section 189(3) of the LRA notice nor to have followed the section 189A process. By 3 January 2017, the employment of Yeko would have terminated, which termination does not constitute a dismissal within the meaning of section 186 of the LRA. However, the actions of Red Mining sought to terminate the contract prematurely. By 12 November 2016, it notified Yeko that on 15 December 2016, the employment would cease. This amounts to a dismissal within the meaning of section 186(1)(a) of the LRA.
[12]... On 15 December 2016, Red Mining terminated the employment contract; however, Yeko left the services of Red Mining on 1 March 2017. Therefore, the date of dismissal of Yeko is 1 March 2017. By that date, had Red Mining not terminated the contract prematurely, the employment contract would have terminated on its own terms.
[13] The conclusion this Court reaches is that Yeko was dismissed. In any event, dismissal was never placed in dispute. In terms of section 192 of the LRA, once a dismissal is established, the onus is on an employer to prove that the dismissal is fair. In demonstrating the fairness of the dismissal, Red Mining relied on its operational requirements. Yeko admitted that there was a general need to retrench because the rail contract was terminated.
J49/22
Solidarity obo Members and Another v Ernest Lowe, a Division of Hugado Trading (Pty) Ltd (J49/22) [2022] ZALCJHB 61 (14 March 2022)
[55] Clause 8 of the OHSA[9] is unambiguous. It requires employers to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of its employees. This is a duty that employers owed to employees prior to Covid-19, and the duty remains unchanged. Employers are enjoined, in terms of section 8(2)(b) of the OHSA, before resorting to personal protective equipment, to ensure that they take such steps, as may be reasonably practicable, to eliminate or mitigate any hazard or potential hazard to the safety or health of employees. Section 8(2)(f) specifically enjoins employers, as far as is reasonably possible, not to allow employees to do any work unless certain precautionary measures, such as section 8(2)(b), have been taken. Section 9(1) extends the employers duties in section 8 to non-employees.
[56] The Direction came into effect on 11 June 2021. One of the arguments raised by the applicants is that the Direction takes the form of binding law. In Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange and others[10], the Court found that if a provision of an Act contemplates or anticipates consequent subordinate legislation, and rules are consequently validly promulgated in terms of that enabling Act, the promulgated rules constitute binding law in the form of subordinate legislation. In this instance, the Direction was issued in terms of regulation 4(10) of the Regulations made under section 27(2) of the Disaster Management Act[11].
[66] What is clear from the admission policy is that for employees to access the premises, they have two options. Firstly, employees may decide to vaccinate and produce proof thereof. However, for those who choose not to vaccinate, they are not left without any option. They must provide the Covid-19 test results every seven days. It is not the applicants case that the weekly Covid-19 PCR test is unreasonable.
[68] The applicants argue that the letter dated 6 December 2021 issued to the employees demonstrates that the respondent wanted its employees to be vaccinated and that its purpose was to enforce vaccinations. Whilst employees may have been encouraged about the science relating to vaccination, I am unable to agree that the respondent wanted to make vaccination mandatory.
[52] Essentially, the applicants were unable to point to any specific term of the contract that was breached because of or by the adoption of the admission policy. Further, there was no provision of the contract of employment that the applicants alleged was unilaterally changed by the introduction of the admission policy.
JS 424/19
Sekoto v University of South Africa (JS 424/19) [2022] ZALCJHB 34 (28 February 2022)
[21] It is trite that any form of settlement agreement or contract between parties ought to be free from ambiguity or uncertainty as to its terms and conditions, in order for it to be enforceable, let alone be made an order of Court. This is so in that any order granted must give finality to the dispute between the parties and not leave doubt when it came to its compliance. Differently put, the terms and conditions of a settlement agreement must be clear and unequivocal, particularly in regards to the rights and obligations arising therefrom. This is even moreso since it is not for the Court to create a contract for the parties, where uncertainties and ambiguities are glaring.
[20] It is my view that in line with the authorities set out elsewhere in this judgment[8], the facts of this case, properly construed from various emails exchanged between the parties and the conduct of the parties in relation to the purported agreement, do not all demonstrate a meeting of minds, even though it can be accepted that there was an intention on the part of the parties to reach some form of agreement post the dismissal of Sekoto.
[12] In Universal Church of the Kingdom of God v Myeni & Others[(2015) 36 ILJ 2832 (LAC); [2015] 9 BLLR 918 (LAC); [2015] JOL 33521 (LAC)], it was reiterated that the intention of the parties in any agreement, express or tacit, is determined from the language used by the parties in the agreement, or from their conduct in relation thereto. Further, that not every agreement constitutes a contract. For a valid contract to exist, each party needs to have a serious and deliberate intention to contract or to be legally bound by the agreement, the animus contrahendi. The parties must also be ad idem (or have the meeting of the minds) as to the terms of the agreement. Obviously, absent the animus contrahendi between the parties or from either of them, no contractual obligations can be said to exist and be capable of legal enforcement[At para 44].
JR 338/20
Mohajane v Emfuleni Local Municipality and Others (JR 338/20) [2022] ZALCJHB 32 (16 February 2022)
[12] The proposition by Grogan was to the effect that if an employer permits the employee to continue working after date on which the contract would otherwise expire, the contract will be deemed to have been tacitly renewed on the same terms, except that the contractual relationship is now of indefinite duration. Once this happens, the only way in which the contract can be terminated is by ordinary dismissal. As pointed out by Gauteng Legislature an employee is on either a fixed term contract or permanent. If dismissed when a tacit agreement exists, then the route is one of ordinary dismissal and not some expectation. In casu, Mohajane suggested that she expected extension and not that she was tacitly employed.
[11]...Based on the Gauteng Legislature judgment, Mohajane cannot have an expectation when, on her contention she was made permanent by allowing her to work for a further four months. The decision of Department of Agriculture Forestry and Fisheries v Teto and others[[2020] 41 ILJ 2086 (LAC).] is not authority for the proposition that continuation in employment amounts to an expectation for converting a fixed-term contract into permanent employment. What Teto endorsed was the view expressed by the learned author Grogan and approved by the Labour Court in Owen & others v Department of Health, KwaZulu-Natal[[2009] 30 ILJ 2461 (LC).].
[13] The conclusion I reach is that the fact that Mohajane was paid for four months, whilst she was on suspension since February 2017 does not imply that an expectation was created that the fixed-term contract will be extended or that she be made permanent within the contemplation of section 186 (2) of the LRA. If anything, as she suspected when she was not paid in July, she must have at the very least expected a dismissal due to misconduct. An employee who is facing misconduct allegations cannot harbour any expectation of renewal of a contract of employment.
[9] In Natal Joint Municipal Pension Fund v Endumeni Municipality,[[2012] ZASCA 13; 2012 (4) SA 593 (SCA) para 18.] the Supreme Court of Appeal (SCA) set out a proper approach to the interpretation of written documents, including contracts, stating that:The present state of the law can be expressed as follows: Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.
J494/19
Swanepoel v KPMG Services (Pty) Ltd (J494/19) [2021] ZALCJHB 457 (13 December 2021)
[10] I have outlined the contextual circumstances that led to the conclusion of the settlement agreement. The scope and purpose of the settlement agreement are not only determined on the basis of that background and context but the words used by the parties are equally important.[South African Football Association v Fli-Afrika Travel (Pty) Limited [2020] ZASCA 4; [2020] 2 All SA 403 (SCA) at paras 45-46.] The introductory clause of the settlement agreement clearly states that the parties reached a consensus on the applicants departure. It is common cause that mutual separation was an option chosen by the applicant instead of facing a disciplinary enquiry on allegations of poor performance. As such, in the light of this context, the only sensible construction to be accorded to the words used in the settlement agreement is that the applicants contract of employment terminated on mutual basis and in full and final settlement of all obligations any claims that may have arisen, particularly in terms of the Labour Relations Act[6] (LRA) and Basic Conditions of Employment Act[7] (BCEA).
[7] In terms of section 16(1)(a) of the UIA, an unemployed contributor is entitled to unemployment benefits if the reason for the unemployment is:(i) the termination of the contributors contract of employment by the employer of that contributor or the ending of a fixed term contract,(ii) the dismissal of the contributor, as defined by section 186 of the Labour Relations Act, 1995 (Act No. 66 of 1995), or(iii) insolvency in terms of the provisions of the Insolvency Act, 1936 (Act No. 24 of 1936)
the jurisdiction of the Labour Court is regulated by section 66 of the UIA which provides that: Unless this Act provides otherwise, the Labour Court has jurisdiction in respect of all matters in terms of this Act, except in respect of an offence in terms of this Act. While section 64 of UIA provides that:(1) No person may-(a) knowingly make a statement or cause a statement to be made which is materially false or which results in an incorrect payment of benefits in an application for benefits in terms of this Act;(b) wilfully make any false entry on a contributors record card or any other book, record or document relating to either a contributors employment history or to a contributors claim for benefits; or(c) contravene, or refuse or fail to fully comply with any provision of this Act or of any regulation or notice issued in terms of this Act.(2) Any person who contravenes subsection (l)(a), (b) or (c) is guilty of an offence.
[14] Given my finding that the applicants contract of employment terminated on mutual basis in terms of the settlement agreement, the recordal of involuntary resignation in the UI-19 form obviously constitutes a false entry in terms of section 64(1)(b) and a criminal offence in terms of section 64(2) of UIA. As mentioned above, this Court lacks jurisdiction to deal with criminal offences in terms UIA.
[15] Secondly, even if this Court does have general jurisdiction in terms of section 66 of UIA, the relief sought by the applicant to compel the respondent to record the reason for the termination of his contract of employment as retrenchment or any other reason other than mutual separation in terms of the settlement agreement is fallacious. In essence, the applicant seeks an order directing the respondent to lie about the reason for the termination of his contract of employment in order to enable him to claim UIF benefits and in turn commit an offence in terms of section 64(1)(a) of the UIA. The applicants counsel prudently conceded that this claim is flawed.
J907/21
Viscol CC v Van Den Bergh and Another (J907/21) [2021] ZALCJHB 302 (20 September 2021)
[19] In summary, the conclusion this Court reaches is that there is a valid and enforceable restraint of trade, which protects the proprietary interests of Viscol. There is no basis to conclude that Chantel must not be held to the terms of the pacta. However, the period of two years is too wide to protect the proprietary interests of Viscol. There is no empirical evidence to support a conclusion that the period of two years is reasonable. Thus, the period is read down to a period of one year, which period is reasonable for the interests of Viscol and Chantel. In order to protect the interests of Viscol, there is no other available remedy than to hold Chantel to the restraint.
[1] More and more, employees are seeking to resist legal handcuffs that allegedly minifies competitiveness, productivity and labour mobility. This despite the ephemeral nature of the restraint clauses. Courts are then troubled with a toilsome and operose task of reconciling two conflicting policies; namely (a) a person must be free to use his or her skill and experience to the best advantage; and (b) that covenants should be observed and enforced pacta sunt servanda. It must be admitted that this task is backbreaking, gruelling and laborious one for Courts. Often times Courts fail to adequately balance the protection. In some instances, Courts lean comfortably in favour of pacta sunt servanda to the detriment of the freedom of employees and vice-versa. For that reason no case can serve as a precedent in this exercise simply because no case is similar to another.
J775/19
Ntuli and Others v Luxor Paints (Pty) Ltd and Another (J775/19) [2021] ZALCJHB 247 (16 August 2021)
[12] Section 158(1)(c) of the LRA empowers this court to make "any arbitration award or any settlement agreement an order of the court". Section 158(1)(1A) stipulates that for the purpose of sub-section (1)(c) "a settlement agreement is a written agreement in settlement of a dispute that a party has the right to refer to arbitration or to the Labour Court, excluding a dispute that a party is only entitled to refer to arbitration in terms of section 22(4), 74(4) or 75(7)".
[13] In SA Post Office Ltd v Communication Workers' Union on behalf of Permanent Part-Time Employees[[2013] 12 BLLR 1203 (LAC).], Wagley JP, noted that these provisions merely confer jurisdiction upon the Labour Court:'This does not mean that the order is there for the taking. The Labour Court has a discretion to make it an order of court even if it otherwise meets the criteria provided in s 158(1A), read with s 158(1)(c) of the LRA.'[Ibid at para 21 on p. 1208.]
[14] The learned Judge President explained:'[21] ... The purpose of making a settlement agreement or an arbitration award an order of court is to enforce compliance with the agreement or the award. The agreement or the award must therefore be unambiguous and unequivocal and not open to any dispute. What all this means is that before the Labour Court will grant an order sought in terms of s 158(1)(c) of the LRA it must be satisfied that, at the very least:(i) the agreement is one which meets the criteria set ins 158(1)(c) read with s 158(1A) of the LRA, and if it is an award, that it satisfies the criteria set in s 142A of the LRA;(ii) that the agreement or award is sufficiently clear to have enabled the defaulting party to know exactly what it is required to do in order to comply with the agreement or award; and(iii) there has not been compliance by the defaulting party with the terms of the agreement or the award.'[5]
[15] It is only once these 'jurisdictional facts' have been satisfied that the Labour Court may exercise its discretion:'[22] Once the Labour Court is satisfied with all of the above then it must, nevertheless, exercise its discretion whether to grant or refuse the order. In exercising the discretion, the court must take relevant facts and circumstances into account, such as are necessary to satisfy the demands of the law and fairness. Necessarily, each case must be decided on its own facts and circumstances. There is, otherwise, no closed list of factors to be taken into account. A relevant factor is the time it took the party seeking the relief to launch the application to make the settlement or award an order of court. The Labour Court may, for example, be more reluctant to make an award for reinstatement of employees an order of court where the employees unreasonably delayed in seeking the enforcement of the award, yet a delay of years in seeking to make an award for payment of a sum of money may not be grounds for refusing to make the award an order of court. Finally, and most crucially it must be remembered that the purpose of making an agreement or award an order of the Labour Court is to compel its enforcement, or enable its execution and not for some other purpose.'[6]
J 2100/19
Perumal v Clover SA (Pty) Ltd (J 2100/19) [2021] ZALCJHB 244; [2021] 11 BLLR 1143 (LC) (16 August 2021)
[33] As the LAC held in Greeff, the Labour Court may only make settlement agreements, which comply with the criteria stated in section 158(1A), orders of court.[34] I will consider the criteria in turn. A settlement agreement that may be made an order of court must firstly be in writing. The Applicant presented a written document, signed by the parties as an agreement to be made an order of Court.[35] It must secondly be in settlement of a dispute, thus it must have as its genesis a dispute, and thirdly must it be one that the party has a right to refer to arbitration, or to the Labour Court for adjudication, in terms of the LRA.[36] The Applicants case is that the agreement covers a matter that is capable of being arbitrated as it concerns a retrenchment. The facts placed before this Court do not support this contention.
[41] None of the aforesaid facts indicate that the Respondent had retrenched the Applicant. In fact, quite the opposite. It was made clear to him that his services were not terminated, the section 189 notice was withdrawn and he was instructed to report for work, which he had done until 22 April 2019. It escapes this Court as to how the Applicant could have understood or interpreted the factual position as one where he was retrenched. The context within which the letter he had signed on 8 February 2019 was issued, was explained by the Respondent, but even if he had doubt about the termination of his services, the subsequent letters and conduct of the Respondent could not have caused him to believe that he was indeed retrenched and that his services were terminated with effect from 31 March 2019.[42] In my view the Applicant cannot show that there was a dispute that was settled, which related to retrenchment. At the time he was provided with the letter he had signed on 8 February 2019, the section 189 process just started and was ongoing, with the Respondent consulting with him and looking for alternatives to avoid his retrenchment. When an alternative was found, the Applicants position was no longer affected and the section 189 notice was withdrawn.
JR1841/18
Motlhamme and Others v Gold Rush Morula and Others (JR1841/18) [2021] ZALCJHB 173 (21 July 2021)
[28] In casu there is no arbitration award but a settlement agreement signed by the parties and recording the terms of their settlement. The settlement agreement did not come about as a result of a decision or ruling made by an arbitrator or other statutory functionary. In fact, it was entered into at the stage of conciliation.
Malebo v Commission for Conciliation, Mediation and Arbitration and others (2010) ZALC 97 (15 April 2010). Referred to in Cindi v CCMA (2015) 36 ILJ 3080 (LC).
[u]ntil the agreement is made an award it remains simply a settlement agreement. Any legal force it carries is derived from the ordinary binding power of a contractual arrangement between the parties. Even though the agreement may have come into being through the facilitation of the commissioner, his role in the conclusion of the agreement does not entail the exercise of any statutory decision-making powers on his part to make an award or ruling which is binding on the parties. The document embodying the settlement simply records what the parties to the dispute have agreed. The arbitrators signature on it confirming that he conciliated it adds no more legal force to the document, in my view, except insofar as it affords some evidence of a third party witnessing the conclusion of the agreement.
[30] A settlement agreement that has not been made an arbitration award in terms of section 142A of the LRA cannot be reviewed and there is no basis upon which the settlement agreement entered into between the parties can be reviewed.
Mavundla and Others Vulpine Investment Ltd t/a Keg and Thristle and Others (2000) 2 ILJ 22 80 (LC).
The concluding of the settlement agreement was not an administrative act of the commissioner. She did not impose her will on the parties. The commissioner's role was to try and procure a meeting of the minds of the parties so that by agreement between themselves could be settled. The settlement agreement is not her decision, it is a recording of the parties' consensus over the manner in which they agree to settle their differences. The role of the commissioner in that settlement agreement was through conciliation to procure an offer from the company that would ultimately be acceptable to the applicants. The final decision to conclude the agreement lay solely in the respective party's hands. They had to decide of their own volition whether to accept or reject the offers made and put through the office of the commissioner. Mr van Zyl, a director of the company, proposed the settlement on behalf of the company, and Mavundla and Msweli accepted the proposal.
The remedy available to the Applicants is to be found elsewhere, as was confirmed in Cindi v CCMA (2015) 36 ILJ 3080 (LC).
In my view, the third respondent is correct in its contention that the remedy in challenging the agreement that came into existence due to the alleged undue influence by the Commissioner, lies in the common law principles of contract. It is in this regard trite that the validity of an agreement in terms of the general principles of contract can be challenged under the following grounds:o impossibility of performance.o duress and/or undue influence.o misrepresentation and/or fraud.
J735/21
National Union of Metal Workers of South Africa v Eskom Holdings SOC Ltd and Others (J735/21) [2021] ZALCJHB 182; [2021] 10 BLLR 1049 (LC) (6 July 2021)
[12] It is common cause in casu that NUMSA has not referred a dispute in terms of section 64 (4) of the LRA. The common law position is such that a change of the terms of a contract without consent is impermissible in law[5]. In Mazista Tiles (Pty) Ltd v NUM and others[6], it was confirmed that a unilateral change of the terms and conditions by an employer is impermissible in law. In terms of section 23 of the Constitution, everyone has a right to fair labour practices. The LRA was passed with the purpose to give effect to section 23.
[14]...It is so that the LAC in the Eskom v Num supra concluded that the protection set out in section 64 (4) endures for a period of 30 days or any extended periods agreed upon. Once that period expires, an employer may unilaterally vary as it were. Of course the question may be whether after 30 days or the agreed extended period expires, a party may invoke the common law protection or not. I prefer to leave that question open since it does not arise in this matter. Ultimately, the conclusion I reach is that the protection on the variation issue lies in section 64 (4) of the LRA.
[15] Before I conclude on this issue and for the sake of posterity, it has been decisively held that where an employee refuses to accept the changes terms and conditions of employment necessitated by the operational requirements of an employer, an employer may invoke the provisions of section 188 read with 189 of the LRA.[NUMSA and others v Aveng Trident Steel and another (2021) 42 ILJ 67 (CC).]
J 673/21
Biobee Intergrated Crop Solutions (Pty) Ltd v Botha and Others (J 673/21) [2021] ZALCJHB 181 (6 July 2021)
A restraint of trade undertaking remains a contract and the principle of pacta sunt servanda finds application despite the provisions of section 22 of the Constitution of the Republic of South Africa, 1996. Thus, unless a party upon whom the agreement is to be enforced, raises a constitutional protection squarely in the papers, a Court must simply apply the principles as they apply in a breach of contract; namely (a) is there a contract in place; (b) has it been breached by the other party. If the answer is in the affirmative, a restraint of trade undertaking must be enforced. Where the party against whom the agreement is to be enforced allege unreasonableness, that party must prove the alleged unreasonableness....The first respondent bore the onus to prove all those defences.
[19] Ultimately, the test is not that she has disclosed but that she has the potential to do so. She had contact with customers and the designed solution. The fact that not a single customer has left is not relevant to the question of the potential. For a period of almost 11 months, Botha kept a relationship with the customers of Biobee in the Northern region and implemented Biobee solutions for them. Clearly, Botha has in a business sense endeared herself to the Northern region customers. She was the only representative of that region. She commanded business of R22 million rands. She is no minnow in the industry particularly in the Northern region.
JA31/2020
Minister of Defence and Military Veterans and Others v Public Servants Association obo Members (JA31/2020) [2021] ZALAC 43 (3 November 2021)
Caxton Printing Works (Pty) Ltd v Transvaal Advertising Contractors Ltd1936 TPD 209at 215;Trotman v Edwick1951 (1) SA 443(A) at 449B;GB BradfieldChristies Law of Contract in South Africa(7 ed) at 344 (Christies) (re: fraudulent and negligent misrepresentations relating to contracts); andPilkington Bros.(SA)(Pty) Ltd v LIllicrap, Wassenaar & Partners1983 (2) SA 159(W) (re: pure economic loss).
[25] From the statement of case and those claims for declaratory relief, the causes of action relied upon by the respondents are largely discernible, but for the one based on alleged pure economic loss. Their main cause of action is one of breach of contract, the allegation being that the appellants breached a term of the contract. The alternative causes of action are delictual[8], firstly they allege fraudulent (alternatively negligent) misrepresentation, and further alternatively, pure economic loss (which would at least require proof of negligence, that is, assuming that it is what it on the surface appears to be).
[35] To summarise on the prescription issue, the court a quo erred in finding that only awards up to October 2011 had prescribed while the rest remained claimable. It should have found that the single causes of action relied upon by the respondents had prescribed three years after they had arisen, that is shortly after the signature of the demilitarisation contracts in November 1998 and that by the time the statement of case was issued, in which the respondents attempted to pursue those very causes of action, they had long prescribed.[36] Put differently, it should have found that all the debts, that is for damages and payments and for the performance of other obligations, that properly fall within the meaning of debt in the Prescription Act, and that the respondents sought to claim from the appellants, and which flowed from the breach of contract or delict relied upon by the respondents, had been extinguished by prescription. It would make no sense in those circumstances to issue a declarators in respect of causes or rights of action that had already prescribed.
J 2258/2019
Balsdon v Valley Macadamias Group (Pty) Ltd (J 2258/2019) [2021] ZALCJHB 65 (28 May 2021)
[10] Even if I am wrong in coming to this conclusion, what is significant about the wording of section 158 (1) (c) is that it does not oblige this court to make any settlement agreement an order of court. In other words, even if the agreement satisfies the criteria set out in the subsection, the court retains a discretion to determine whether to make the agreement an order of court. In other words, there may well be facts or circumstances that militate against making a settlement agreement an order of court.
[9] The present instance, the agreement says no more than that the parties have agreed to terminate the relationship between them. The agreement says nothing about any dispute between the parties. A mutually agreed termination of employment is not a dismissal. Consequently, the agreement between the parties could not conceivably relate to any unfair dismissal claim that might be arbitrated or adjudicated in terms of the LRA. In particular, the papers reveal no dispute between the parties at the time the settlement agreement was concluded, certainly not any dispute that the applicant had the right to refer to arbitration or to this court in terms of the LRA. The fact of the matter is that it was the applicant that made a proposal that he be paid a sum of money in the face of a request that he attend a disciplinary enquiry. The only dispute, to the extent that there may have been one, was that the applicant denied that he was guilty of the allegations levelled against him in the notice to attend a disciplinary enquiry. However, on account of the settlement, the matter went no further. There was no disciplinary hearing, and the applicant was not dismissed. On the applicants own version, even in reply, he makes no averment that any conduct on the respondents part in regard either to his suspension or any other conduct by the respondent was unfair, or would otherwise have entitled him to invoke any provisions in the LRA. The applicants speculative assertion that there was no doubt in his mind that the outcome of the disciplinary hearing would have afforded either party the right to refer the matter to arbitration or this court is not an answer to the question that must be answered in the affirmative in order for section 158 (1A) to be applicable, i.e. whether at the time the settlement agreement was concluded, there was a dispute that either party had the right to refer to arbitration or to this court. To the extent that the applicant submits in the heads of argument filed on his behalf that the settlement agreement was concluded in order to avoid a protracted disciplinary enquiry, this is not the case made in the founding or even replying affidavit. Similarly, it is not enough, as was submitted in argument, that the applicant denies that he was guilty of the misconduct alleged. An allegation of misconduct and a denial of that allegation by an employee does not constitute a dispute capable of referral to arbitration or to this court. Consequently, in my view, the applicant has not made out the basis on affidavit that the dispute between them satisfies the third requirement identified in Greef. It follows that the court is not empowered to make the settlement agreement an order of court
[7] In Maryka Greef v Consol Glass (Pty) Ltd (2013) 34 ILJ 2835 (LAC), the Labour Appeal Court held that the correct approach to be followed when considering applications such as the present is this:A settlement agreement that may be made an order of court by the Labour Court in terms of s 158 (1) (c) must (i) be in writing, (ii) be in settlement of a dispute (i.e. it must have as its genesis a dispute); (iii) of the dispute must be one that the party has the right to refer to arbitration, or to the Labour Court for adjudication, in terms of the LRA; and (iv) the dispute must not be of the kind that a party is only entitled to refer to arbitration in terms of s 22 (4) or s 74 (4) or s 75 (7). Those kinds of disputes are excluded
[8] When an employment contract is entered into for a fixed term, the courts will hold the parties to the fixed term and not permit any premature termination of the contract, except where one of the parties acts in material breach of the contract. fixed-term contract of employment. In Buthelezi v Municipal Demarcation Board [2005] 2 BLLR 115 (LAC) in which the Labour Appeal Court (at 9) statedas follows:
There is no doubt that at common law a party to a fixed - term contract has no right to terminate such contract in the absence of a repudiation or a material breach of the contract by the other party. In other words, there is no right to terminate such contract even on notice unless its terms provide for such termination. The rationale for this is clear. When parties agree that their contract will endure for a certain period as opposed to a contract for an indefinite period, they bind themselves to honour and perform their respective obligations in terms of that contract for the duration of the contract and they plan, as they are entitled to in the light of their agreement, their lives on the basis that the obligations of the contract will be performed for the duration of that contract in the absence of a material breach of the contract. Each party is entitled to expect that the other has carefully looked into the future and has satisfied itself that it can meet its obligations for the entire term in the absence of any material breach. Accordingly, no party is entitled to later seek to escape its obligations in terms of the contract on the basis that its assessment of the future had been erroneous or had overlooked certain things. Under the common law there is no right to terminate of a fixed - term contract of employment prematurelyin the absence of a material breach of such contract by the other party.
[9] This approach was applied by this court in Nkopane & Others v Independent Electoral Commission [200 7] 2 BLLR 146 (LC), in which the court stated (at paragraph 41) that:If an employment contract is truly a fixed term contract - of the type contemplated in Tiopaizi v Bulawayo Municipality 1923 AD 317 - it is legally incapable of valid premature cancellation for any reason other than material breach. An employee whose fixed term contract has been terminated for a reason other than breach is not confined to a contractual claim for damages. The dismissal can also be challenged as being unfair and relief for this can be claimed under the provisions of the LRA. (footnote omitted)
Express termination clause needed when contract is terminated earlier
[10] These authorities beg the question as to the nature of the contract between the parties. In my view, they do not assist the applicant - the cases concerned contracts that are 'truly' a fixed term contract; a contract that is not terminable on notice by either party during its term. In Lottering & others v Stellenbosch Municipality (2010) 31 ILJ 2969 (LC), Cheadle AJ confirmed that if the contract is for a fixed term, the contract may only be terminated on notice only if there is a specific provision permitting termination on notice during the contractual period. Magopeni v Acacia Mining SA (Pty) Ltd & others [2020] ZAGPPHC 300 (30 March 2020) is similarly authority for the proposition that where parties enter into a fixed term contract of employment, there are two exceptions for a premature termination of the contract. The first is that there should be a repudiation or material breach of the terms of the contract; alternatively, the terms of the contract should provide for such termination. In the latter instance, the courts have held that by entering into a fixed term contract of employment for a specific period, the parties intend to be bound by the contract for the stipulated duration unless there is express provision made for earlier termination (see also Nkopane v Independent Electoral Commission (2007 28 ILJ J6 70 (LC)).
J 437/2019
Farinha v Boogertman and Partners (J 437/2019) [2021] ZALCJHB 17 (11 February 2021)
[7] The principles of interpretation to be applied were affirmed in Natal Joint Municipal Pension Fund v Edumeni Municipality 2012 (4) SA 593 (SCA).
[18]...The present state of the law can be expressed as follows: interpretation is the process of attributing meaning to the words use in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document.... The 'inevitable point of departure is the language of the provision itself' read in context and having regard to the purpose of the provision and the background to the preparation and production of the document. .. [25] Which of the interpretational factors I have mentioned will predominate in any given situation varies. Sometimes the language of the provision, when read in its particular context, seems clear and admits of little if any ambiguity. Courts say in such cases that they adhere to the ordinary grammatical meaning of the words used. However, that too is a misnomer. It is a product of a time when language was viewed differently and regarded as likely to have a fixed and definite meaning, a view that the experience of lawyers down the years, as well as the study of linguistics, has shown to be mistaken. Most words can bear several different meanings or shades of meaning and to try to ascertain their meaning in the abstract, divorced from the broad context of their use, is an unhelpful exercise. The expression can mean no more than that, when the provision is read in context, that is the appropriate meaning to give to the language used. At the other extreme, where the context makes it plain that adhering to the meaning suggested by apparently plain language would lead to glaring absurdity, the court will ascribe a meaning to the language that avoids the absurdity. This is said to involve a departure from the plain meaning of the words used. More accurately it is either a restriction or extension of the language used by the adoption of a narrow or broad meaning of the words, the selection of a less immediately apparent meaning or sometimes the correction of an apparent error in the language in order to avoid the identified absurdity. [26] In between these two extremes, in most cases the court is faced with two or more possible meanings that are to a greater or lesser degree available on the language used. Here it is usually said that the language is ambiguous although the only ambiguity lies in selecting the proper meaning (on which views may legitimately differ). In resolving the problem, the apparent purpose of the provision and the context in which it occurs will be important guides to the correct interpretation an interpretation will not be given that leads to impractical, unbusinesslike or oppressive consequences or that will stultify the broader operation of the legislation or contract under consideration.'
[11] But the approach to be adopted is one that requires the court to have regard, initially at least, to the language read in context, having regard to the purpose of the document and the background to the preparation and production of the document. The language of clause 3 is clear. It imposes notice periods that either party may invoke to terminate the contract. While as Mr Morgan submits, the clause does not expressly refer to any right to give notice to terminate the contract, it is difficult to conceive of any other purpose that the clause might serve.
[12] In so far as the applicant relies on the contra proferentem rule, this ordinarily requires a court to interpret an unclear written contractual provision, usually in insurance claims where exclusion clauses are at issue, against the party that drafted it. It is not an absolute rule and is not ordinarily applied in relation to employment contracts.
JR 811/2018
Melembe v Commission for Conciliation, Mediation and Arbitration and Others (JR 811/2018) [2020] ZALCJHB 230 (26 October 2020)
[36] I also fail to appreciate how the applicant can be said to have been subjected to duress, coercion, intimidation or improper pressure when the evidence did not point to any exercise of physical force, whether directly or indirectly. Any apprehension of fear claimed by the applicant to him or his family arising from being told of the possibility of criminal charges is clearly imagined and far-fetched. The Commissioner was correct in pointing out that the mere fact that threats were made by Pillay that the alleged misconduct in question could be criminally investigated could not have induced the applicant to sign the agreement. Any sophisticated and highly senior employee in the position of the applicant in the same position confronted with a similar situation would have called the employer bluff, invited the employer to suspend him and subject him to a disciplinary enquiry, refused to sign the agreement, and face and answer any allegations against him at the disciplinary enquiry. This would have been so, unless of course the applicant knew that there might be merit in the mere mention of allegations of corruption or misconduct against him.
[37] In the end, this review application can be disposed of based on the remarks made by the Constitutional Court in Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Limited and Another[(CCT41/16) [2016] ZACC 33; (2016) 37 ILJ 2723 (CC); 2016 (12) BCLR 1515 (CC); [2017] 1 BLLR 1 (CC)] as follows;[23] It was then that he (Employee) entered into a final agreement to put a present dispute to bed. He did so full knowingly, with his eyes open to his own future interests. It may have been different if he had agreed to abjure recourse to the courts in future disputes. But here the dispute was hot and fresh, and present. He agreed to part ways with Reckitt on terms that were final, and that protected him from further action by his employer including the possibility of a disciplinary process that could wound his career irremediably. That finality included an agreement that the courts would not be involved. The parties would go their ways without more.
JR 1328/16
Bidvest Prestige Services (Pty) Ltd v Lebea N.O and Others (JR 1328/16) [2020] ZALCJHB 211 (26 September 2020)
[14] Flowing from the interpretation of the wording of section 186(1) of the LRA and the effect of fixed term contracts in Enforce Security and other authorities referred to therein[12], the following principles can be gleaned;14.1 In an endorsement of the decision in Sindane, the LAC agreed that an employment contract can be terminated in a number of ways which do not constitute a dismissal as defined in s 186(1) of the LRA. One such instance would be a fixed term employment contract entered into for a specific period or upon the happening of a particular event (e.g., a conclusion of a project or the cancellation or expiry of a contract between an employer and a third party). Once the event agreed to between an employer and its employee takes place or materializes, there would ordinarily be no dismissal[13].14.2 The common law position that the expiry of the fixed term-contract of employment does not constitute a termination of the contract by any of the parties, and that it constituted an automatic termination of the contract by operation of law, which did not constitute a dismissal, remains intact. This is so in that there is no express or implied intention by the legislature in enacting section 186(1) of the LRA to amend or change the common law position[14].14.3 The definition of a dismissal flowing from the words an employer has terminated a contract of employment with or without notice, requires that there must be an act by the employer that terminates the contract[15].14.4 In instances where the employees contracts of employment were fixed-term and linked to a third party contract which defined a set of events such as the completion of a specified task or project, the continued existence of the contracts of employment is depended on the continued existence of the project or task. Thus the termination of the tasks or project (i.e. third party contract), would be a legitimate event that would by agreement, give rise to automatic termination of the employment contracts.14.5 In instances where the third party terminated the contract (proximate cause of the termination of the employment contracts), and thus the project or tasks, there would be no direct or indirect act by the employer to cancel the contracts or the subsequent termination of the contracts of employment, unless there is evidence to suggest that cancellation by the third party was a device to rid the employer of the employees, or evidence to suggest that it was a clandestine move by the employer to dismiss the employees[16].14.6 The mere fact that the provisions of section 189 of the LRA are an option or that there were other available options instead of relying on the automatic termination clause cannot be used to negate the clear terms agreed to by the parties in the fixed-term contract. Thus, the considerations of the fairness or otherwise of a dismissal cannot be used to determine whether an employee has been dismissed[17]...14.7 In regards to lawfulness of the automatic termination clauses, section 5(4) decrees that a provision in any contract, whether entered into before or after the commencement of the LRA, that directly or indirectly contradicts or limits any provision of sections 4, or 5, is invalid, unless the contractual provision is permitted by this LRA.[18]14.8 The automatic termination clauses are not always invalid and that in making this determination the court must consider whether the clause was intended to circumvent the fair dismissal obligations imposed on an employer by the LRA and the Constitution of the Republic. The relevant considerations, would include the precise wording of the automatic termination clause and the context of the entire agreement; the relationship between the fixed-term event and the purpose of the contract with the client; whether it is left to the client to choose and pick who is to render the services under the service agreement; whether the clause is used to unfairly target a particular employee by either the client or the employer; and whether the event is based on proper economic and commercial considerations. Each case must be decided on its circumstances[19].
15.2 On a proper reading of clauses 2 and 11 of the contracts of employment, it can be accepted that to the extent that the Employees were based at Tubatse Chrome as a result of contractual arrangements between Bidvest and the former, there was as a result of the termination of the clients contract, indeed a termination of the contract of employment upon the happening of a particular event, which constituted an automatic termination of the contract by operation of law, and not a dismissal as the Commissioner had found.
15.4 Thus, from a reading of clauses 2 and 11 of the fixed term contracts in this case, it ought to be accepted that those contracts were to run until the service contract with Tubatse Chrome was terminated. Furthermore, the termination of the contracts of employment was in line with its express clause 5 which further states that the contracts were for a definite period which terminates automatically upon the client service contract as it pertained to the Employees.
[25]...To reiterate, where an automatic termination clause is found not to have led to a dismissal, there cannot be any entitlement of a severance payment under the provisions of section 189 of the LRA read with section 41(2) of the BCEA, unless those provisions are relied upon in a separate cause of action.
JS1079/18
Eloff v Imvula Roads and Civils (Pty) Ltd (JS1079/18) [2020] ZALCJHB 208 (1 September 2020)
High Court in Living Hands (Pty) Ltd and Another v Ditz and Others 2013 (2) is a 368 (GSJ)
"(a) In considering an exception that a pleading does not sustain a cause of action, the court will accept, as true, the allegations pleaded by the plaintiff to assess whether they disclose a cause of action.(b) The object of an exception is not to embarrass one's opponent or to take advantage of a technical flaw, but to dispose of the case or portion thereof in an expeditious manner, or to protect oneself against an embarrassment which is so serious as to merit the costs.(c) The purpose of an exception is to raise a substantive question of law which may have the effect of settling the dispute between the parties.(d) An excipient who alleges that a summons does not disclose a cause of action must establish that, upon any construction of the particulars of claim, no cause of action is disclosed.(e) An over technical approach should be avoided because it destroys the usefulness of the exception procedure, which is to weed out cases without legal merit.(f) Pleadings must be read as a whole, and an exception cannot be taken to a paragraph or a part of a pleading that is not self-contained.(g) Minor blemishes and unradical embarrassments caused by a pleading can and should be cured by further particulars."
Labour Court in Irving v Amic Trading (Pty) Ltd JS 104/2014 ZALC JHB 418 at para 14
"(a) In each case the Court is obliged first of all to consider whether the pleading does lack particularity to an extent amounting to vagueness. Where the statement is vague it is either meaningless or capable of more than one meaning.(b) If there is vagueness in this sense, the court is then obliged to undertake a quantitative analysis of such embarrassment as the excipient could show is caused to him or her by the vagueness complained of.(c) In each case an ad hoc ruling must be made as to whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead to the pleading in the form to which he or she objects. (A point may be of the utmost importance in one case, and the omission thereof may give rise to vagueness and embarrassment, but the same point may in another case be only a minor detail.)(d) The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced "
[41] The respondent argued that the pre-trial proceedings resulting in a pre-trial minute are very important. The respondent relied upon the Irving matter[JS 104/2014 ZALC JHB 418 at para 14] and Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC) at paras 8 - 10. Both matters emphasise the importance of sorting out the factual disputes at the pre-trial meeting. The Court in Harmse further stated:"When an exception is raised against the statement of claim, this court must consider, having regard to what I have said above, whether the matter presents a question to be decided which, at this stage, will dispose of the case in whole or in part. If not, then this court must consider whether there is any embarrassment that is real and that cannot be met by making amendments or providing of particulars at the pre-trial conference stage."
[48] If there are no specific terms in contract C 998 that the applicant is in breach of, or if contract C998 does not provide for forfeiture, then a material part of the counterclaim stands to fail. The exception cannot then be said to be merely convenient but goes to the heart of the counterclaim and may dispose of the whole or part of the counterclaim.[49] The counterclaim is pleaded vague and embarrassing in that it is either pleaded that the applicant neglected to ensure that the contractual requirements are met and, secondly, claims for payment were not timeously submitted, or it may mean that he only neglected his duties in respect of the timeous submission of claims.
J601/20
Motherland Design Agency (Pty) Ltd v Whitefernfranc (Pty) Ltd and Others (J601/20) [2020] ZALCJHB 145 (31 August 2020)
Shareholders of a private company, who are also employees of same, refuse to sign a written contract of employment containing a restraint of trade covenant. After resignation/dismissal from employment they establish a new private company in competition with the former employer. Court found that there is no formal restraint of trade agreement between the applicant and the individual respondents.In the absence of a valid restraint of trade agreement between the parties, a former employee owes his former employer a duty of good faith to not use or divulge confidential information received. However, in the absence of a valid restraint of trade agreement covering customer connections, the exploitation of such customer connections by an ex-employee in favour of a new employer is not preventable by an interdict and a former employee is free to compete against his former employer in a free market as the latter does not enjoy any contractual power to restrain him from doing so.
J2626/18
Mathebula v Marula Platinum (Pty) Ltd (J2626/18) [2020] ZALCJHB 193 (25 August 2020)
[13] In the matter of South African Post office Ltd v Communication Workers Union obo Permanent Part-time Employees (SAPO),[[2013] 12 BLLR 1203 (LAC) at para 21] referred to by the respondent, the Labour Appeal Court (LAC), per Judge President Waglay, cautioned against merely making a settlement agreement an order of court precisely because in most instances, as typified in the present case, settlement agreements are conditional to the fulfilment of future events; alternatively, the terms are ambiguous or vague and thus requiring extraneous evidence to ascertain the intention of the parties before they could be enforced. It was pertinently stated that:Section 158(1)(c) of the LRA provides that the Labour Court has the jurisdiction to make any settlement agreement, concluded in respect of a matter arising within the scope of the LRA, an order of court. This does not mean that the order is there for the taking. The Labour Court has a discretion to make it an order of court even if it otherwise meets the criteria provided in section 158(1A), read with section 158(1)(c) of the LRA. Hence, where a settlement agreement provides for an employer to pay an employee R5000,00 by a particular date and the employer pays this amount on or before the due date the employee would be foolhardy to approach the Labour Court to make the settlement agreement an order of court, as no purpose would be served by doing so and the Court would refuse to make it an order of court. By the same token, where the settlement agreement provides that the employer will re-employ a dismissed employee if he feels like doing so, and the employer does not re-employ the employee, the employee would be ill advised to approach the Labour Court and seek to make that agreement an order of court, because no purpose can be served by making such an agreement an order of court. It is an agreement that leaves the discretion to employ entirely within the discretion of the employer and he may employ if he feels like doing so. He cannot be forced by a courts order to be in the mood to employ and there is no enforceable obligation to employ. The purpose of making a settlement agreement or an arbitration award, an order of court is to enforce compliance with the agreement, or the award. The agreement or the award must therefore be unambiguous and unequivocal and not open to any dispute. This does not mean that an award or agreement that provides payment of salary or wages of a certain period is not clear and precise. The parties would know or easily ascertain by having regard to documentation like pay slips or an independent accounting exercise what the amount is [although ideally the amount should be clearly set out to avoid unnecessary delays and expensive exercise to ascertain the exact amount due]. What all this means is that before the Labour Court will grant an order sought in terms of Section 158(1)(c ) of the LRA it must be satisfied that, at the very least :i. the agreement, is one which meets the criteria set in s 158 (1)(c) read with section 158(1A) of the LRA, and if it is an award, that it satisfies the criteria set in section142A of the LRA;ii. that the agreement or award is sufficiently clear to have enabled the defaulting party to know exactly what it is required to do in order to comply with the agreement or award; and,iii. There has not been compliance by the defaulting party with the terms of the agreement or the award.
[14] In the present case, the applicant is clearly grasping at straws. Simply stated, he is desperately trying to enforce a settlement agreement that is dependent on an event yet to take place. Having failed at the CCMA, his move to launch this application is obviously ill-considered.
[30] It is clear from the record that the arrangement entered into between the applicant, the third respondent and Rand Water entailed that the applicant would be employed for purposes of the Project, with effect from 1 October 2014 until its completion. This much is confirmed by the terms of the fixed-term contract. It is also not in dispute that the Project terminated on 30 November 2018.[31] In those circumstances it cannot be said that the applicant was dismissed by the third respondent. The fixed-term contract clearly expired automatically through the effluxion of time on 30 November 2018.
[34] In summary, it is implicit from the Commissioners award that he considered the third respondent to be the applicants employer and that the fixed-term contract had overtaken any notion of indefinite employment. The terms of the fixed-term contract resulted in the applicants employment terminating automatically at the end of the project i.e. 30 November 2018.
JR 1115/19
Mncedane v Maziya General Service and Others (JR 1115/19) [2020] ZALCJHB 142 (17 August 2020)
[25] Section 200A of the LRA provides specifically for situations of disguised employment by creating a rebuttable presumption as to whether a person is an employee for purposes of the LRA. It provides, inter alia, as follows:-(1) Until the contrary is proved, for purposes of this Act, any employment law and section 98A of the Insolvency Act, 1936 (Act 24 of 1936), a person who works for, or renders services to, any other person is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present:(a) . (Emphasis added).[26] In Universal Church of the Kingdom of God v Myeni & Others[(2015) 36 ILJ 2832 (LAC)] the Labour Appeal Court discussed the purpose behind the provisions of section 200A, inter alia, as follows:-[37] In my view, a better understanding of s 200A can only be informed by a clearer understanding of the circumstances surrounding the evolution of the section. There is no doubt that the introduction of this section was intended to safeguard and protect vulnerable workers who, in terms of the LRA, qualified to be treated as 'employees' and to enjoy the legal protection under the LRA, but who were somewhat manipulated by some unscrupulous employers and induced to conclude contracts in which they (the workers) were conveniently described either as independent contractors or something similar. In this way, employers escape their obligations under the LRA vis--vis the workers concerned. Therefore, in terms of s 200A, even B if a contract does not refer to 'employment', it is presumed to be an employment contract if the s 200A factors are present. This was doubtlessly the primary rationale behind the promulgation of s 200A. Simply put, s 200A advocates substance over form. (Emphasis added).[27] The endorsement of a substance-over-form approach by the LAC is precisely what is advocated by the Code of Good Practice: Who is an employee, which provides as follows:-The presumption applies regardless of the form of the contract. Accordingly, a person applying the presumption must evaluate evidence concerning the actual nature of the employment relationship. The issue of the applicant's employment status cannot be determined merely by reference to either the applicant's obligations as stipulated in the contract or a "label" attached to the relationship in a contract. Therefore a statement in a contract that the applicant is not an employee or is an independent contractor must not be taken as conclusive proof of the status of the applicant.[6] (Emphasis added).
JR 1333/18
Ntlatha v Phakisa Freight Management Services (Pty) Ltd and Others (JR 1333/18) [2020] ZALCJHB 121 (13 August 2020)
[25] A contract duration linked to the supply of work contracts by clients cannot be construed to equate to the occurrence of a "specified event", "the completion of a specified task or project" or "a fixed date", as contemplated by section 198B(1). This is so in that a "specified event", "the completion of a specified task or project" or a "fixed date" does not constitute a possibility that future contracts may not be supplied in future by an employer's clients. This remains a possibility and nothing more than that. It is by no means a specified event which in future will arise, nor is it related to the completion of a task or project or a fixed date, but is an operational risk which may occur, one under which the business operates.
[11] It stands to reason, therefore, that Mr Ntlahlas limited duration employment contract had been concluded in contravention of subsection 198B(3) of LRA and as such deemed to be of an indefinite duration in terms of section 198B(5) of the LRA. Accordingly, Phakisa had to follow the procedure contemplated in section 189 of the LRA and by failing to do so, the dismissal of Mr Ntlahla was procedurally unfair.
JR2187/17
Campher v Commission for Conciliation Mediation and Arbitration and Others (JR2187/17) [2020] ZALCJHB 107 (25 June 2020)
once the employee accepts the offer for a position which is clearly a fixed term contract there is no turning back to the erstwhile permanent contract of employment reasonable expectation that a fixed term contract would be renewed can be supported by practice or assurance by senior managers reinstatement is an adequate remedy.
he essence of Ms Camphers evidence in this regard is that, but for her questioning of the payment of Mr Motsoenengs R 11 million bonus, her fixed term contract would not have been prematurely terminated.[4] In the absence of any evidence in rebuttal, the evidence of Ms Campher must stand.
J 421/2020
Matlole v Mafube Local Municipality and Others (J 421/2020) [2020] ZALCJHB 71 (6 May 2020)
[3] The applicable legal principle is clear. Notice of termination of employment by an employee is a final unilateral act which once given, cannot be withdrawn without the consent of the employer (see Mafika v SA Broadcasting Corporation Ltd [2010] 5 BLLR 542 (LC), and Lottering and others v Stellenbosch Municipality [2010] 12 BLLR 542 (LC).
JS 740/18
NUMSA obo King and Others v BMW South Africa (Pty) Ltd (JS 740/18; JS 410/17; JS 177/17) [2020] ZALCJHB 115 (11 March 2020)
[59] In conclusion, the probabilities drive me to a conclusion that the agreed retirement age remained that of 65 years in respect of the dismissed employees. The unilateral change cannot be imposed on them in law. The common law position is such that a change of the terms of a contract without consent is impermissible in law[62]. In Mazista Tiles (Pty) Ltd v NUM and others[63], it was confirmed that a unilateral change of the terms and conditions by an employer is impermissible in law. Like its cousin, estoppel, the doctrine is not allowed to operate in circumstances where it would have a result which is not permitted by law. The doctrine cannot be upheld if its effect would be to render enforceable what the law has in the public interest declared to be illegal or invalid. In A Mauche (Pty) Ltd t/a Precision Tools v NUMSA and others[64], the LAC held that employees do have a vested right to preserve their working obligations completely unchanged as from the moment they begin work. Thus, the change from 65 to 60 having been effected unilaterally is ineffective in law. A legal option, which was never employed by the respondent, available to the respondent was to impose the change and if any of the affected employees does not accept it, then dismiss for operational requirements, only if it could be shown that the change was operationally related.
[69] Accordingly, I conclude that the respondent has breached the employment contract. The issue of payment of proven damages is to be determined later.
[22] Thus I take a firm view that when the legislature used the word right, it sought to denote a right of referral acquired after the conciliation referral. Therefore, where the settled dispute was never referred to conciliation its settlement agreement is not, in my view, one contemplated in section 158 (1A) of the LRA. The situation prior to the insertion of section 158 (1A) compelled the Labour Court in interpreting the phrase any settlement agreement to conclude that the settlement must be in relation to a labour matter justiciable under the LRA[Harriawak v La Farge (SA) (2001) 6 BLLR 614 (LC).]. The reason for that was obvious. The function of the Labour Court and other dispute resolution bodies is to resolve labour disputes as commanded and guided by the LRA.
[24] For the LAC, it did not matter whether the dispute in question was referred to conciliation in order to acquire the right to be referred to arbitration[18]. The Constitutional Court in September supra, seem to have endorsed the principle that the Labour Court lacks jurisdiction over a dispute that has not been referred for conciliation. The corollary of this conclusion, in my view, is that a party who has not referred a dispute for conciliation has no right to refer the dispute to the Labour Court. The same corollary applies mutatis mutandis to disputes to be referred to arbitration in terms of the LRA.
Eke v Parsons[2016 (3) SA 37(CC)]
[25] This in no way means that anything agreed to by the parties should be accepted by a court and made an order of court. There can only be one that is competent and proper. A court must thus not be mechanical in its adoption of the terms of a settlement agreement. For an order to be competent and proper, it must, in the first place relate directly or indirectly to an issue or lis between the parties. Parties contracting outside of the context of litigation may not approach a court and ask that their agreement be made an order of court.
J1171/17
Imatu obo Espach v Polokwane Local Municipality (J1171/17) [2020] ZALCJHB 30 (6 February 2020)
It is a cardinal principle of the law of contract that a simple contractual offer made to a specific person can be accepted only by that person; and that, consequently, a purported acceptance by some other person is ineffective and does not bring about the conclusion of a contract. Corbett JA in Levin v Driepork Properties (Pty) Ltd[1975 (2) SA 397 (A).], said amongst others the following:Krause J saidNow it is trite law that an offer made by one person to another cannot be accepted by a thirdfor simple reason that there was no intention on the part of the one person to contract with the other person whatever the subject matter of the contract may be.
CA8/2019
Department of Agriculture, Forestry and Fisheries v Teto and Others (CA8/2019) [2020] ZALAC 19; (2020) 41 ILJ 2086 (LAC); [2020] 10 BLLR 994 (LAC) (28 May 2020)
expired on 14 July 2014, they continued working in their positions performing the same tasks until they were dismissed on 26 August 2016.
[20] The fact that some of the terms and conditions of the respondents employment may have altered is not decisive. They remained employed by the same employer, albeit on different terms. If after the expiry of a fixed-term contract, an employee continues to render services to an employer and receives remuneration for the rendering of those services, the contract is deemed to be tacitly relocated or novated. The new contract may be on varied terms and its duration period must be determined in the light of the circumstances of each case. Unless a contrary intention can be inferred from the facts, it will generally be assumed that the parties intended the new contract to be of indefinite duration, terminable by reasonable notice given by either party.[5]
J Grogan Workplace Law (10th Edition) 41-42; Redman v Colbeck 1917 EDL 35 at 38; and Braund v Baker, Baker & Co. (1905) 19 EDC 54.
PA2/19
Ukweza Holdings (Pty) Ltd v Nyondo and Others (PA2/19) [2020] ZALAC 7; [2020] 6 BLLR 544 (LAC); (2020) 41 ILJ 1354 (LAC) (4 March 2020)
[14]...Furthermore, that he rendered services to the appellant after the end of January when his fixed-term contract came to an end does not mean that that the fixed-term contract morphed into permanent employment.
[13]...approach is not only too technical an approach, it fails to take into account the real and practical way in which the parties dealt with each other.
[16] It follows therefore that the CCMA erred in concluding that there was a dismissal and as such it was entitled to arbitrate the dispute.
JA78/18
Eskom Holdings SOC Ltd v National Union of Mineworkers and Others (JA78/18) [2020] ZALAC 2; [2020] 4 BLLR 362 (LAC); (2020) 41 ILJ 1129 (LAC) (6 January 2020)
Makate v Vodacom (Pty) Ltd 2016 (4) SA 121 (CC).
Mercifully, there is no need to deal with this question in that there is no evidence to suggest that the respondents were misled into believing that any ad hoc salary increase could have been granted, absent the approval of the Divisional Managing Director and that the provisions of the Collective Bargaining Agreement could have been bypassed.
JA52/2018
Khum MK Investments and Bie Joint Venture (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA52/2018) [2020] ZALAC 1; [2020] 4 BLLR 362 (LAC); (2020) 41 ILJ 1129 (LAC) (6 January 2020)
[11] At the subsequent arbitration proceedings, Khum submitted that the employees were not dismissed as contemplated in section 186(1) of the LRA. Its argument was premised on the contention that the Contractor Agreements automatically terminated due to the cancellation of the task orders and in terms of the termination clause regulating the relationship between Khum and the employees.
[22] The submission is not sustainable for two principal reasons. Firstly, tacit terms are unexpressed provisions of the contract derived from the common intention of the parties as inferred not only from the surrounding circumstances but also from the express terms of the written contract.[Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) 531-532]Therefore, before a tacit term may be imported into the contract, it is necessary to examine the express terms of the contract; and a tacit term should not be readily imported when the express terms specifically address the matter in question. Where the parties have expressly agreed upon a term and given expression to that agreement in the written contract in unambiguous terms, reliance on the surrounding circumstances to alter the clear meaning or to broaden the ambit of the express term may not be justified.[Union Government (Minister of Railways) v Faux Ltd 1916 AD 105, 112; and SA Mutual Aid Society v Cape Town Chamber of Commerce 1962 (1) SA 598 (A) 615D.]
[23] Secondly, a tacit term allowing automatic termination on cancellation of the task orders is not necessary to give business efficacy or functionality to the contract. A tacit term can only be implied into a contract if it is necessary in the business sense to give it efficacy;[Reigate v Union Manufacturing Co (Ramsbottom) [1918] 1 KB 592, 605]and courts should not do so unless there arises from the express language of the contract and the surrounding circumstances such an inference that the parties must have intended the term in question and hence the court is necessarily driven to the conclusion that it must be imported.[Union Government (Minister of Railways) v Faux Ltd 1916 AD 105, 112]In this case, any need to terminate the contract in the event of Eskom cancelling the PSA was adequately provided for by permitting Khum to cancel on operational requirements grounds without notice, provided it acted fairly in terms of section 189 of the LRA.
[25] In the result, the conclusion is inescapable that clause 3 of the Contractor Agreements did not allow for automatic termination of the contact in the event of Eskom cancelling the task orders.
In David Crouch Marketing v Du Plessis[36] the Court held that if the confidential information did not resort under the categories referred to above, then: it forms part of the employee's general knowledge and skill, which he is free to use for his own benefit or for the benefit of others after the termination of the contract of employment .
J2277/19
Pecsser (Pty) Ltd v Boshoff and Others (J2277/19) [2019] ZALCJHB 358 (5 December 2019)
[26] Restraints of trade are valid and binding, and as a matter of principle enforceable, unless the enforcement thereof is considered to be unreasonable.[11] A restraint of trade does not infringe on the constitutional right to free economic activity.[12] The general principles applicable to the enforcement of restraints of trade as set out in Basson v Chilwan and Others[13] are consistently applied, and are now trite.[14] These principles entails answering the following questions: (a) Does the applicant have an interest that deserves protection after termination of the agreement? (b) If so, is that interest threatened by the other party? (c) In that case, does such interest weigh qualitatively and quantitatively against the interest of the other party not to be economically inactive and unproductive? and (d) Is there an aspect of public policy having nothing to do with the relationship between the parties that requires that the restraint be maintained or rejected? More recent developments of these restraint enforcement principles includes answering a further question, being whether the restraint goes further than necessary to protect the relevant interest?[15] This approach of answering these five questions in total, in deciding whether the enforcement of a restraint of trade would be reasonable, is now trite and has been consistently applied in this Court and the Labour Appeal Court.[16]
Answering these five questions involves a determination on the facts of that particular case, applying, as held in Ball v Bambalela Bolts (Pty) Ltd and Another[17], the following approach: the determination of reasonableness is, essentially, a balancing of interests that is to be undertaken at the time of enforcement and includes a consideration of 'the nature, extent and duration of the restraint and factors peculiar to the parties and their respective bargaining powers and interests'
[27] A protectable interest of the applicant in a restraint of trade can mostly be found in one or both of two considerations, being confidential information (trade secrets), or trade connections.[18] In Labournet (Pty) Ltd v Jankielsohn and Another[19] the Court held:A restraint is only reasonable and enforceable if it serves to protect an interest, which, in terms of the law, requires and deserves protection. The list of such interests is not closed, but confidential information (or trade secrets) and customer (or trade) connections are recognised as being such interests.
[28] Considering first what constitutes confidential information, it can be summarized as follows:[20] (a) Information received by an employee about business opportunities available to an employer; (b) the information is useful or potentially useful to a competitor, who would find value in it; (c) Information relating to proposals, marketing to submissions made to procure business; (d) information relating to price and/or pricing arrangements, not generally available to third parties; (e) the information has actual economic value to the person seeking to protect it; (f) customer information, details and particulars; (g) information the employee is contractually, regulatory or statutory required to keep confidential; (h) Information relating to the specifications of a product, or a process of manufacture, either of which has been arrived at by the expenditure of skill and industry which is kept confidential; and (i) information relating to know-how, technology or method that is unique and peculiar to a business. Importantly, the information summarized above must not be public knowledge or public property or in the public domain. In short, the confidential information must be objectively worthy of protection and have value.
[29] Next, trade connections is where the employee has access to customers and is in a position to build up a particular relationship with the customers so that when he leaves employment and becomes employed by a competitor, the employee could easily or readily induce the customers to follow the employee to the new business.[21] Whether the employee can be seen to have the ability to exert this kind of influence, is dependent upon the duties of the employee, the employees particular personality and skill, the frequency and duration of contact between the employee and the customer, the nature of the relationship between the employee and the customer and in particular whether the relationship carried with it a notion of trust and confidence, the knowledge of the employee of the particular requirements of the customer and the nature of its business, how competitive the rival businesses are, and the nature of the product or services at stake.[22]
[30] The seniority of the employee concerned is also a relevant factor when deciding if a protectable interest exists.[23] The more senior the employee, the more likely it is that the employee would be entrenched with what can legitimately be considered to be a protectable interest based on the above two considerations.[24] Seniority is not just the level of the employee in the organization of the erstwhile employer, but also includes factors such as the influence, knowledge, expertise, nature of duties, relationships and even the particular person of the employee.
[31] In deciding whether a protectable interest has been infringed upon, it is not necessary to show that there has been actual harm to the employer. It is about the risk created to the employer.[25] It is not necessary to show that the employee had actually solicited the custom of the customers he or she dealt with whilst employed at the employer, and all that must be shown is that the employee indeed had a close working relationship with customers, and that it is likely that the employee is in a position to convince these customers to take their business elsewhere. In sum, is the employee in a position to act to the detriment of the erstwhile employer?[26] The same risk consideration applies to confidential information, the only consideration being whether it could harm the employer or lead to an unfair advantage to the competitor if disclosed.[27]
[32] Where it comes to the quantitative and qualitative weigh off to be conducted, the scope and period of the restraint is relevant. A shorter restraint and properly limited geographical area (if applicable) would mitigate in favour of enforcement, whilst an unduly long and broad restraint would mitigate against it.[28] It must also be considered whether the employee was possessed of the skills, expertise, qualifications and experience before joining the employer, as it could be seen as unfair in the weigh off to prevent the employee from earning a living under such circumstances.[29] The nature of the industry is also an important consideration, in that the more specialized the industry, the more the weigh off will favour the employer, as it limits the scope of the restraint and leaves much more avenues open to the employee to procure gainful employment in other industries. Whether the employee is wholly or partly remunerated for the restraint period is also a consideration in favour of enforcement, but this is not a requirement.
[33] It does not matter whether the employee, where employment with a competitor can be seen to be a violation of the restraint, gives an undertaking that the employee will not exploit trade connections or disclose confidential information, as this is not a consideration that can be applied in favour of the employee and simply does not serve as a defence.[30][34] As to whether the restraint goes further than needed to protect a protectable interest, the essence of the enquiry is to establish whether restraint only serves to stifle competition.[31] In other words, enforcing the restraint does nothing more than spiting the employee and the competitor for whom the employee intends to work, and does nothing to protect the business or interests of the erstwhile employer.[32][35] Finally, and where it comes to public interest, this consideration would arise where the enforcement of the restraint may be contra bones mores, or seek to support some kind of device or illegality or prohibited business model.[33] That which is unlawful cannot be protected.
Esquire System Technology (Pty) Ltd t/a Esquire Technologies v Cronj and Another[34] the Court held as follows where it comes to confidential information worthy of protection:Information is confidential if it meets the following requirements:(a) It must be capable of application in a trade or industry.(b) It must not be public knowledge or public property (in other words, it must be known only to a restricted number or closed circle of people).(c) It must, objectively, be of economic value to the person seeking to protect it.
JR113/18
Transnet Group Capital v Khwela and Others (JR113/18) [2019] ZALCJHB 335 (14 November 2019)
[10] The arbitrator was spot on when he concluded that a settlement agreement has as its genesis a dispute and must resolve that dispute. Correctly, and on the objective facts, the VSA did not resolve the unfair labour practice between the parties. The dispute remained live for resolution through arbitration. Therefore, a conclusion that the bargaining council has the requisite jurisdiction to arbitrate the dispute was correct.
Gollach & Gomperts v Universal Mills & Produce Co 1978 (1) SA 914 (AD)
was a transactio in the sense of the word as used in the Roman Dutch law and applied in South Africa. In Cachalia v Harberer & Co., 1905 TS 457 at p. 462, SOLOMON J., accepted the definition of transactio given by Grotius, Introduction, 3.4.2., asan agreement between litigants for the settlement of a matter in disputeThe purpose of transactio is not only to put an end to existing dispute but also to prevent or avoid litigation
Collen v Rietfontein Engineering Works 1948 1 SA 413 (A) at 420
It must also be remembered that a counter-offer is in general equivalent to refusal of an offer and that thereafter the original offer is dead and cannot be accepted until revived. (See Watermeyer v Murray 1911 AD 61)
[9] Mr Ford for the applicant placed reliance on the decision of Blue IQ Investment Holdings (Pty) Ltd v Southgate[4]. This decision is not helpful to the applicant. It dealt with a non-variation clause. In casu, at the time of the handwritten inscription by the first respondent, the parties had not reached an agreement yet. They were still at the point of offers. The applicant made an offer, which was not accepted by the first respondent. At the initial stages of the negotiations, the first respondent counter-offered and the counter-offer was rejected. However, the first respondent insisted with the counter offer and the second time around, Mohammedys, by appending his signature, he assented to the counter-offer. The first party to sign an agreement[5] makes an offer and the other by his signature accepts.[6] The fact that Mohammedys chose not to initial alongside the counter-offer is of no consequences. Further, Mr Ford placed reliance on the decision of Ulster v Standard Bank Ltd & another[7]. This decision too is unhelpful to the applicant. In it an employee attempted to resile from an already reached agreement. Finally, he placed reliance on Maetisa v Pernod Ricard SA Ltd[8]. Similarly, this decision does not advance the applicants case. In it, the employee attempted to bring into a settlement agreement an issue raised during a consultation process, which did not make its way into the settlement agreement. As pointed out earlier, in this matter, when the first respondent made the handwritten inscription (which I had termed a counter-offer), no agreement was reached as yet. I asked Mr Ford to demonstrate to the Court that an agreement was already reached, but he could not.
JR616/15
Mathopo,Moshimane and Mulangaphuma T/A DM5 INC v Commission for Conciliation,Mediation and Arbitration and Others (JR616/15) [2019] ZALCJHB 21 (5 February 2019)
[15] In determining whether the CCMA had jurisdiction, the commissioner had to establish whether the employment relationship was mutually terminated. In so doing, he had to interpret the settlement agreement.
Cook4Life CC v Commission for Conciliation Mediation and Arbitration and Others (2013) 34 ILJ 2018 (LC).
That being so, I fail to appreciate why, in matters such as the present, when it is contended that an agreement is voidable on account of it having been induced by duress, the CCMA is not empowered to make that determination in the exercise of its jurisdiction to determine the existence or otherwise of a dismissal. To require an applicant in those circumstances to refer a contractual dispute to this court as a precondition to arbitration on an unfair dismissal claim would defeat the statutory purpose of informal and expeditious dispute resolution, and would import a requirement that finds no reflection in the Act.
CTP Ltd T/A Caxton Newspapers Division v Mphaphuli NO and Others (2015) 36 ILJ 1042 (LC); Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk [2014] 1 All SA 517 (SCA); 2014 (2) SA 494(SCA) .
[10] In Natal Joint Municipal Pension Fund v Endumeni Municipality the current state of our law in regard to the interpretation of documents was summarised as follows:Over the last century there have been significant developments in the law relating to the interpretation of documents, both in this country and in others that follow similar rules to our own. It is unnecessary to add unduly to the burden of annotations by trawling through the case law on the construction of documents in order to trace those developments. The relevant authorities are collected and summarised in Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary School. The present state of the law can be expressed as follows: Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusiness-like results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or business-like for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a contract for the parties other than the one they in fact made. The 'inevitable point of departure is the language of the provision itself1, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.
[12] That summary is no longer consistent with the approach to interpretation now adopted by South African courts in relation to contracts or other documents, such as statutory instruments or patents. Whilst the starting point remains the words of the document, which are the only relevant medium through which the parties have expressed their contractual intentions, the process of interpretation does not stop at a perceived literal meaning of those words, but considers them in the light of all relevant and admissible context, including the circumstances in which the document came into being. The former distinction between permissible background and surrounding circumstances, never very clear, has fallen away. Interpretation is no longer a process that occurs in stages but is essentially one unitary exercise. Accordingly it is no longer helpful to refer to the earlier approach.
J4376/2018
Graffiti Design Proprietary Limited v Teffu and Another (J4376/2018) [2019] ZALCJHB 10 (22 January 2019)
Profibre Products (Pty) Ltd v Govindsami (J1448/18) [2018] ZALCJHB 240 (5 June 2018) at para [13]
Protectable Proprietary interests?[21] There are two kinds of proprietary interests that can be protected by a restraint agreement. The first relates to all confidential information (Trade Secrets) which is or might be useful to a competitor, if disclosed to it, to gain a relative advantage. The second relates to the relationships with customers, potential customers, suppliers and others that have been referred to as the trade connections of the business.[22] Whether information constitutes a trade secret is a question of fact. For information to be regarded as confidential and thus worthy of protection, it must be capable of application in the trade or industry (i.e. it must be useful and not be public knowledge); must only be known to a restricted number of people or a closed circle; and must be of economic value to the person seeking to protect it[9].
In determining whether a restriction on the freedom to trade and to practise a profession is enforceable, a court should have regard to two main considerations. The first is that the public interest requires, in general, that parties should comply with their contractual obligations even if these are unreasonable or unfair. The second consideration is that all persons in the interests of society, be permitted as far as possible to engage in commerce or professions or, expressing this differently, that it is detrimental to society if an unreasonable fetter is placed on a person's freedom of trade or to pursue a profession. In applying these two main considerations, a court will obviously have regard to the circumstances of the case before it.'
Sunshine Records (Pty) Ltd v Frohling and Others [1990] 1 ALL SA 8 (A) at 41 and 42.
JS1052/16
Kgwedi v Bidvest Protea Coin (Pty) Ltd (JS1052/16) [2018] ZALCJHB 425; [2019] 6 BLLR 562 (LC) (18 December 2018)
Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd and Another 2016 (12) BCLR 1515 (CC) at para 24
[12] Contractual principles apply to any agreement entered into between an employer and employee, including an agreement of compromise in terms of which parties agree to settle any dispute, or claims, that may exist between them.[15] A contract may be vitiated by duress where intimidation or improper pressure renders the consent of the party subjected to duress no true consent. Compulsion may be exercised by way of physical force, or indirectly, by way of a threat of harm. In order to obtain an order setting aside a contract on the grounds of duress, actual violence or reasonable fear must be shown. The fear must be caused by the threat of some considerable evil to the person concerned, or to his, or her, family. The threat or intimidation must be unlawful, or contra bonos mores and the moral pressure used must have caused damage. The burden of proving the existence of duress rests on the party raising it.
[38] When evaluating the bargaining power between the parties, the Court will take into account the position and status of the employee to the contract. In the current matter, the threat not to pay the applicant for failure to sign the settlement agreement cannot amount to a reasonable fear on the part of the applicant. It is apparent from the facts of this matter that the applicant did not hold a low-level position that could be seen to have been exploited
Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Limited and Another 2016 (12) BCLR 1515 (CC)
The public, and indeed our courts, have a powerful interest in enforcing agreements of this sort. The applicant must be held bound. When parties settle an existing dispute in full and final settlement, none should be lightly released from an undertaking seriously and willingly embraced. This is particularly so if the agreement was, as here, for the benefit of the party seeking to escape the consequences of his own conduct. Even if the clause excluding access to courts were on its own invalid and unenforceable, the applicant must still fail. This is because he concluded an enforceable agreement that finally settled his dispute with his employer.
JR 200/16
Xaba and Others v I G Tooling & Light Engineering (Pty) Ltd and Others (JR 200/16) [2018] ZALCJHB 395; (2019) 40 ILJ 638 (LC) (28 November 2018)
[19] A settlement agreement that has not been made an arbitration award in terms of section 142 of the LRA cannot be reviewed and there is no basis upon which the settlement agreement entered into between the parties can be reviewed.
Malebo v Commission for Conciliation,Mediation and Arbitration and Others (2010) ZALC 97 (15 April 2010) at para 12, referred to in Cindi v CCMA (2015) 36 ILJ 3080 (LC).
[u]ntil the agreement is made an award it remains simply a settlement agreement. Any legal force it carries is derived from the ordinary binding power of a contractual arrangement between the parties. Even though the agreement may have come into being through the facilitation of the commissioner, his role in the conclusion of the agreement does not entail the exercise of any statutory decision-making powers on his part to make an award or ruling which is binding on the parties. The document embodying the settlement simply records what the parties to the dispute have agreed.'
Makiwane v International Healthcare Distributors (2003) 24 ILJ 2150 (LC) at paras 18-19.
It is common cause between the parties that the applicant has been paid all the monies set out in the settlement agreement, that he has kept such monies and has made no tender to return them to the respondent. To my mind this clearly signifies his acceptance of such monies in full and final settlement of his claims against the respondent.Our law is trite that where a party accepts the benefits under any settlement agreement in full and final settlement of the benefits owing to him by his former employer arising from the termination of his employment relationship with such employer, and has abided by such acceptance of those benefits, he has placed himself beyond the jurisdiction of this court (see United Tobacco Co Ltd v Baudach (1997) 18 ILJ 506 (LAC)).
Hlatshwayo v Mare and Deas 1912 AD 242.
doctrine of peremption...'[A]t bottom the doctrine is based upon the application of the principle that no person can be allowed to take up two positions inconsistent with one another, or as it is commonly expressed to blow hot and cold, to approbate and reprobate.'
JS656/16
National Union of Metalworkers of South Africa and Another v Clear Creek Trading 167 (Pty) Ltd t.a Wireforce (JS656/16) [2018] ZALCJHB 340 (12 October 2018)
Duress is not necessarily a consequence of physical threat, such as locking the employees into a room and physically forcing them to sing an agreement
Kanku and Others v Grindrod Fuelogic (C602/2014) [2017] ZALCCT at para 43.
[38] Did the employees in this case sign the agreements voluntarily, i.e. without duress or coercion, unequivocal and with full knowledge of its terms and implications as a full and final settlement of all the issues?[39] On the facts and on the evidence before me, and on the probabilities, I am not persuaded that Grindrod has discharged that onus. All three drivers were called in out of the blue, with no prior warning and without the benefit of a notice that is required by law in s 189(3) of the LRA. They were presented with a fait accompli: This is Eskoms requirement; there is nothing we (Grindrod) can do about it; if you refuse, we lose the contract (and put all the South African drivers at risk); you have no choice but to sign. Mateus was on his own, confronted by his two superiors in their boardroom. Neither he, nor the other two, were given the opportunity to obtain union or legal representation. On the probabilities, I do accept that Kanku was not given the opportunity to ascertain for himself what Eskoms position was, even though I find it improbable that the door was locked. And the consistent evidence of all three drivers that Church insisted on leaving for Johannesburg with the signed agreements is also more probable than not. Under those circumstances, I do not think it can be said that Grindrod has shown that the employees accepted the agreement voluntarily, unequivocally and with full knowledge of its terms and implications.[40] The employees in this case had even less opportunity to consult anyone about the retrenchment agreement that was presented to them out of the blue than was the case of the employee at Adelkloof Drankwinkel. In that case, the employee was also called into a meeting and presented with a voluntary retrenchment agreement. She telephoned her mother and then signed it. The Court commented:I am unconvinced that there was any attempt to comply with the obligations placed upon an employer by section 189 of the Act. The applicant was told that her services had to be terminated on 15 December 2000. She heard about this for the first time on that day. Yet the document setting out her package is dated 11 December 2000, four days previously, and is titled "Kennisgewing van aflegging". She received no such notice, and she was taken to Mr Viljoen unprepared and unrepresented.The respondent argued in a special plea that the termination of the applicant's services was consensual, as she had signed the agreement in question. Any shortcomings in the process, which was conceded by the respondent's advocate or counsel for the respondent, that preceded the agreement was cured by the voluntary retrenchment package agreement.In my view, and for the reasons set out above, the respondent did not discharge its onus of proving that the dismissal was for a valid reason. The procedure was entirely unfair, high-handed and flawed. In Bekker v Nationwide Airlines (Pty) Ltd 1998 2 BLLR 139 (LC) Landman J held that where an agreement of this nature is reached as a form of settling a retrenchment, the agreement must be preceded by consultation. In this matter, the consultation process was so flawed that it amounted to no consultation at all. The applicant was taken to a building where she was confronted by a perfect stranger with the news that she had to be retrenched. Mr Viljoen had a standardised agreement ready at hand. Even if she declined the postponement of the meeting, Mr Viljoen says he offered, it was clear that she would eventually be retrenched whether, at this meeting or the next meeting. The circumstances in which her signature was procured were oppressive. She was in shock, needed advice, followed her mother's advice over the telephone in circumstances where no one had her interests at heart.The main objective of that meeting was to procure the applicant's signature on the agreement, and to circumvent the requirements of section 189 of the Act. The decision to dismiss was taken four days ago.From the respondent's point of view there was really nothing to discuss, and Mr Viljoen did nothing to discuss, other than the amounts set out in the retrenchment package. In the end he conceded, when asked about the minutes, the only notes he made were in relation to the amounts to be paid. All that was discussed was the package.In my view, an agreement obtained in such unfair circumstances amounts to a nullity. I therefore find that the dismissal was both procedurally and substantively unfair. The applicant should be reinstated.
[24] Clearly, like in Nationwide Airlines,[12] Wireforce had no intention to bargain or consult with the applicant employees but wanted to procure their signature on the settlement agreements and, consequently, circumvent the requirements of section 189. It is not surprising that NUMSA was never notified.[25] In the circumstances, I am persuaded that the applicant employees were coerced into signing the settlement agreements. Accordingly, the settlement agreements are annulled.[26] This matter must then be decided on the basis that the reason for the applicant employees dismissal is indeed due to Wireforces operational requirements.
J2400/18
Vumatel (Pty) Ltd v Majra and Others (J2400/18) [2018] ZALCJHB 335; (2018) 39 ILJ 2771 (LC) (9 October 2018)
Basson v Chilwan and Others [1993] ZASCA 61; 1993 (3) SA 742 (A) at 767G-H.
Basson v Chilwan and Others [1993] ZASCA 61; 1993 (3) SA 742 (A) at 767G-H. "(a) Does the one party have an interest that deserves protection after termination of the agreement?; (b) If so, is that interest threatened by the other party?; (c) In that case, does such interest weigh qualitatively and quantitatively against the interest of the other party not to be economically inactive and unproductive?; and (d) Is there an aspect of public policy having nothing to do with the relationship between the parties that requires that the restraint be maintained or rejected? Following the judgment in Basson, a further enquiry has been added, which can be called a question (e), being whether the restraint goes further than necessary to protect the relevant interest?[21] The above approach of answering these five questions in deciding whether the enforcement of a restraint of trade would be reasonable is now trite and has been consistently applied in this Court and the Labour Appeal Court.[22] Answering each of these questions is a determination on the facts of that particular case, applying, as held in Ball[23], the following approach: the determination of reasonableness is, essentially, a balancing of interests that is to be undertaken at the time of enforcement and includes a consideration of 'the nature, extent and duration of the restraint and factors peculiar to the parties and their respective bargaining powers and interests'[32] The protectable interest of the applicant in a restraint of trade can mostly be found in one or both of two considerations, being confidential information (trade secrets), or trade connections.[24] In Labournet (Pty) Ltd v Jankielsohn and Another[25] the Court held:A restraint is only reasonable and enforceable if it serves to protect an interest, which, in terms of the law, requires and deserves protection. The list of such interests is not closed, but confidential information (or trade secrets) and customer (or trade) connections are recognised as being such interests. "
confidential information
Dickinson (supra) at para 33; Jonsson (supra) at paras 46 49; David Crouch Marketing CC v Du Plessis (2009) 30 ILJ 1828 (LC) at para 21; Esquire (supra) at para 29; Experian (supra) at para 19; Medtronic (supra) at para 16.
(a) Information received by an employee about business opportunities available to an employer; (b) the information is useful or potentially useful to a competitor, who would find value in it; (c) Information relating to proposals, marketing to submissions made to procure business; (d) information relating to price and/or pricing arrangements, not generally available to third parties; (e) the information has actual economic value to the person seeking to protect it; (f) customer information, details and particulars; (g) information the employee is contractually, regulatory or statutory required to keep confidential; (h) Information relating to the specifications of a product, or a process of manufacture, either of which has been arrived at by the expenditure of skill and industry which is kept confidential; and (i) information relating to know-how, technology or method that is unique and peculiar to a business. Importantly, the information summarized above must not be public knowledge or public property or in the public domain. In short, the confidential information must be objectively worthy of protection and have value.
North Safety Products (Africa) (Pty) Ltd v Nicolay (2007) 28 ILJ 350 (C) at 353H-I; Sibex Engineering Services (Pty) Ltd v Van Wyk and Another 1991 (2) SA 482 (T) at 507A-B; Labournet (supra) at paras 41 and 62; FMW (supra) at para 43.
[41] As to whether the restraint goes further than needed to protect a protectable interest, the essence of the enquiry is to establish whether restraint only serves to stifle competition.[40] In other words, enforcing the restraint does nothing more than spiting the employee and the competitor for whom the employee intends to work, and does nothing to protect the business or interests of the erstwhile employer.
[64] In the result, the applicant fails at the point of establishing a breach of its protectable interest as contemplated by enquiry (b) in Basson. It is therefore not necessary to consider any of the other issues. The consequence of this is that the applicant has failed to establish the existence of a clear right to the relief sought, and as such, is not entitled to the interdict sought. It is not necessary to then consider any of the other requirements for final relief, as well.
JA40/2018
Murray and Roberts (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA40/2018) [2019] ZALAC 58; [2019] 11 BLLR 1224 (LAC); (2019) 40 ILJ 2510 (LAC) (20 August 2019)
[32] It is settled that a compromise or settlement agreement may be set aside on the grounds of fraud or iustus error.[21] It may also be set aside for being void or on the ground that it was entered into on the basis of a common, but false assumption.[22] In the case of the latter, there is no lack of consensus, but the contract is regarded as void if the mistake relates to a material, underlying fact.[23] A common mistake has been said to have this effect because it is inferred that the parties intended to contract on the grounds of their common, but false assumption that is, they tacitly agreed to contract on the supposition that the fact about which they were mistaken did, in fact, exist.[24]....[37] Having taken into account what was held in, inter alia, Van Reenen Steel and Rubenstein regarding common mistake, the view, which I respectfully agree with, is expressed by LTC Harms,[32] who was also the scribe of the courts judgment in Van Reenen Steel, that a party who wishes to avoid a contract on the basis of a common mistake must allege and prove that: (a) the contract was based on a common assumption; (b) the assumption was incorrect; and (c) the subject-matter of the assumption was vital to the transaction in other words, had both parties been aware of the true position the transaction would not have been entered into.
JA70/2017
Maripane v Glencore Operations South Africa (Pty) Ltd (JA70/2017) [2019] ZALAC 34; [2019] 8 BLLR 750 (LAC); (2019) 40 ILJ 1999 (LAC) (7 May 2019)
GB Bradfield Christies Law of Contract in South Africa 7ed. (LexisNexis 2016) (Christies) at 266 and the cases referred to there, including Crookes v Watson 1956 (1) SA 277 (A) at 291C; and Joel Melamed and Horwitz v Cleveland Estates (Pty) Ltd [1984] ZASCA 4; 1984 (3) SA 155 (A) at 172A F.
inter alia, McCullough v Fernwood Estates Ltd1920 A.D. 204at 206, cited inChristies(above) at 310.
J1239/18
P B Hairdressing Organization (Pty) Ltd v Kruger and Another (J1239/18) [2018] ZALCJHB 308 (6 June 2018)
[43] Kruger has been in the hairdressing industry since 2000, and I accept that his skills and expertise can only be said to be in that field. There is nothing placed before the Court that suggests that Kruger during his employ or training by the applicant, was exposed to any particular special techniques, methods, secrets, or specialised products which are unique to the applicant, and which would make his own personal attributes unique for the purposes of a legitimate claim to any proprietary interest deserving of protection.
[18] To the extent that the applicants right to seek a paring down of the restraint is the subject of challenge, the respondent relies on the judgment by the High Court in Kelly Group Ltd v Capazorio & others, the court stated that if a court is asked to read down an agreement so as to make it reasonable, this is an issue that must be pertinently raised on the papers and the facts in support of any severance set out. In New Just Fun Group (Pty) Ltd v Turner and others (J786/14, unreported) this court said:The truncated relief sought seeks to limit the scope of the restraint There are at least two reasons why the applicant ought not to be bound to attempt to enforce the full ambit of the restraint. First, it is well-established that a court is entitled to enforce the restraint partially by restricting the scope of its operation to reflect what is found to be reasonable.The court referred to the judgment by Wallis AJ (as he then was) in Den Braven SA (Pty) Ltd v Pillay 2008 (6) SA 229 (D) and continued:The nature and extent of any partial restraint is a matter to be determined from the papers. I do not understand the applicable authorities to preclude an applicant from seeking a partial restraint only because the applicant has sought in its founding affidavit to enforce the full ambit of the agreed restraint. In any event, the extent to which any restraint agreement ought to be pared down is ultimately the decision of the court, having regard to all of the facts and circumstances, to grant more limited relief than that initially sought.
J1448/18
Profibre Products (Pty) Ltd v Govindsami (J1448/18) [2018] ZALCJHB 240 (5 June 2018)
A party seeking to enforce a contract in restraint of trade need only invoke the contract and prove a breach of its terms.
Thereafter, any respondent who seeks to avoid the restraint bears an onus to demonstrate, on a balance of probabilities, that the restraint agreement is unenforceable because it is unreasonable (see Basson V Chilwan [1993] ZASCA 61; 1993 (3) SA 742 (A); Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA)).
That notwithstanding, it is generally accepted that a restraint will be considered to be unreasonable (and thus contrary to public policy and unenforceable), if it does not protect some legally recognisable interest of the employer but merely seeks to exclude or eliminate competition...Ordinarily, a restraint will be unenforceable if it does not protect a trade connection and/or confidential information to which the ex-employee was exposed. (For a recent summary of the relevant principles, see the judgment of the Labour Appeal Court in Labournet (Pty) Ltd v Jankielson & another (2017) 38 ILJ 1302 (LAC) at paragraphs 39 to 45.)
all an applicant in an application such as the present need do is show that there is confidential information to which the employee had access and which he or she could transmit if so inclined. It is not necessary to show that the employee has in fact used information confidential to the applicant. Similarly, in relation to customer connections, it is necessary to do no more than show that trade connections through customer connections exist, and that they could be exploited by the former employee if employed by a competitor (see Den Braven SA (Pty) ltd v Pillay and Another 2008 (6) SA 229 (D) at 240H).
[11] In Basson v Chilwan (supra) the court held that to determine the reasonableness or otherwise of a restraint of trade provision, the following questions should be asked:- 1. Is there an interest of the one party, which is deserving of protection at the termination of the agreement? 2. Is such interest being prejudiced by the other party? 3. If so, does such interest so weigh up qualitatively and quantitatively against the interest of the latter party that the latter should not be economically inactive and unproductive? 4. Is there another facet of public policy having nothing to do with the relationship between the parties but which requires that the restraint should either be maintained or rejected?
[12] The proprietary interests that can legitimately be protected by a restraint agreement, generally speaking, fall into two categories. The first is confidential information which is useful for the carrying on of the business and which could be used by a competitor, if it were to be disclosed to that competitor, to gain a relative competitive advantage (sometimes referred to as trade secrets). The second is relationships with customers, potential customers, suppliers and others that go to make up what is sometimes referred to as the trade connection of the business, this being an important aspect of its incorporeal property known as goodwill.
[13] Whether information constitutes a trade secret is a question of fact (see Mossgas (Pty) Ltd v Sasol Technology (Pty) Ltd [1999] 3 All SA 321 (W) at 333), Walter McNaughten (Pty) Ltd v Schwartz & others 2004 (3) SA (C)). For information to be confidential, it must be capable of application in trade or industry, i.e. it must be useful and not public knowledge and property; secondly, it must be known to a restricted number of people or a close circle; and thirdly, it must be of economic value to the person seeking to protect it (see Townsend Productions (Pty) Ltd v Leech & others 2001 (4) SA 33 (C) Walter McNaughten (Pty) Ltd v Schwartz & others (supra)).
J961/18
WNS Global Services SA (Pty) Ltd v Hayes (J961/18) [2018] ZALCJHB 175 (9 May 2018)
[22] Two categories of proprietary rights that a restraint of trade may protect are recognised in our law. The first one relates to the relationship one might have or have developed with existing or potential customers, a business or its suppliers. This is commonly referred to as trade connections. The second one relates to confidential information useful for the wellbeing of the business commonly known as trade secrets[2][23] In this case, despite his aforementioned undertakings, the respondent denies that the applicant has proprietary interests worthy of protection.
The respondent is interdicted and restrained for a period of 365 (three hundred and sixty-five) days with effect from 30 April 2018 and in the Republic of South Africa, in any capacity whatsoever,..
P206/16
Peter v Capacity Outsourcing (P206/16) [2017] ZALCJHB 123 (27 March 2017)
failed to make himself available when offered re-employment.
South African Post office Ltd [2013] 12 BLLR 1203 (LAC).
[11] Therefore, I find that the applicant failed to prove non-compliance on the part of the respondent. In view of the Labour Appeal Court judgment in the case of South African Post office Ltd,[5] the applicants application to make the settlement agreement an order of the court, cannot succeed.
JS79/14
ARWYP Medical Centre (Pty) Ltd v Harris (JS79/14) [2018] ZALCJHB 30 (6 February 2018)
Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd and Another (JA95/2014) [2016] ZALAC 4; (2016) 37 ILJ 902 (LAC); [2016] 5 BLLR 425 (LAC) at para 12
[12] A compromise is a contract between two or more persons which has as its object the prevention, avoidance or termination of litigation[1]. Contractual principles apply to any agreement entered into between an employer and employee, including an agreement of compromise in terms of which parties agree to settle any dispute, or claims, that may exist between them
Karroo & Eastern Board of Executors & Trust Company v Farr and Others 1921 AD 413 at 415.
[13]It is further trite that for an applicant to succeed with a claim or plea of misrepresentation, he/she must show that he or she was induced to enter into the settlement agreement by virtue of a misrepresentation of fact; that the misrepresentation was material and false; that the misrepresentation was intended to induce him or her to enter into the contract and; and had in fact succeeded in doing s
Goddard v Metcash Trading Africa (Pty) Ltd [2010] 2 BLLR 186 (LC) at para 21
[14] A further requirement is that it had to be shown that the misrepresentation was material, in a sense that it would have induced a reasonable person to enter into the agreement[4]. It is further trite that a misrepresentation, once established, effectively removes the applicants assent thereby resulting in an agreement being non-existent. The agreement will accordingly be void ab initio
Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Limited and Another (2016) 37 ILJ 2723 (CC);2016 (12) BCLR 1515(CC);[2017] 1 BLLR 1(CC)at para 24
he Constitutional Court has held that when parties settle an existing dispute in full and final settlement, none should be lightly released from an undertaking seriously and willingly embraced.
J2509/2016
Imbawula Technical Services and Supplier Group (Pty) Ltd v Brown and Another (J2509/2016) [2016] ZALCJHB 496 (9 December 2016)
[8]Nine of the Applicants clients that are set out in Annexure A are municipalities. Most of their business is conducted through the supply chain management policy and are therefore subject to open procurement of services in terms of s217 of the Constitution of thee Republic of South Africa. They can therefore not be regarded as a client list drawn by a trader, and kept confidential for the purposes of his own business as envisioned inDickinson Holdings Group (Pty) Ltd and Others v Du Plessis and Another.[3]With such a category of clients it cannot be claimed that the Applicant has built up a particular relationship with the clients.
JS990/15
Kobrin v Periscopic Masingita (Pty) Ltd and Others (JS990/15) [2016] ZALCJHB 543 (21 October 2016)
[15] The common law rules relating to termination on notice by an employee can be summarised as follows:
15.1 Notice of termination must be unequivocal Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd1985 4 SA 809(SCA) at 830E. 51.2 Once communicated, a notice of termination cannot be withdrawn unless agreed Rustenberg Town Council v Minister of Labour 1942 TPD 220 and Du Toit v Sasko (Pty) Ltd (1999) 20 ILJ 1253 (LC).5.3 Termination on notice is a unilateral act it does not require acceptance by the employer Wallis Labour and Employment Law para 33 at 5-10. This rule is disputed by the applicants in so far as it applies to notice not in compliance with the contract. The rule is accordingly dealt with more fully below.15.4 Subject to the waiver of the notice period and the possible summary termination of the contract by the employer during the period of notice, the contract does not terminate on the date the notice is given but when the notice period expires SALSTAFF obo Bezuidenhout v Metrorail [2001] 9 BALR 926 (AMSA) at para [6].15.5 If the employee having given notice does not work the notice, the employer is not obliged to pay the employee on the principle of no work no pay;15.6 If notice is given late (or short), that notice is in breach of contract entitling the employer to either hold the employee to what is left of the the contract or to cancel it summarily and sue for damages SA Music Rights Organisation v Mphatsoe [2009] 7 BLLR 696; and Nationwide Airlines (Pty) Ltd v Roediger & Another (2006) 27 ILJ 1469 (W).15.7 If notice is given late (or short) and the employer elects to hold the employee to the contract, the contract terminates when the full period of notice expires. In other words if a months notice is required on or before the first day of the month, notice given on the second day of the month will mean that the contract ends at the end of next month. Honono v Willowvale Bantu School Board & Another 1961(4) SA 408 (A) at 414H 415A. Since this articulation of the rule is contentious and its application was placed in dispute by the applicants, it too is dealt with more fully below.
J2277/16
Mtati v KPMG Services (Pty) Ltd (J2277/16) [2016] ZALCJHB 403; [2017] 3 BLLR 315 (LC); (2017) 38 ILJ 1362 (LC) (18 October 2016)
Urgent interdict. The power of the employer to discipline an employee after resigning. First resignation- the employee undertake to serve the notice period. The second resignation- the employee resigning during the notice period without withdrawing the first resignation and the employer not waiving its rights in relation to the first resignation. The second resignation was with immediate effect. Court found that the chairperson of the disciplinary hearing did not have the power over the employee once she resigned before the expiry of the notice period. The ruling and the decision of the chairperson of the disciplinary hearing declared null and void and set aside....[25] On the basis of the above discussion, it then means that at the time the chairperson, in the present matter, conducted the disciplinary hearing against the applicant there was no employment contract between the parties and thus the respondent had no power to discipline her.
Toyota SA v The Commission for Conciliation Mediation and Arbitration and others (2016) 37 ILJ 313 (CC).
[142] Another context of resignation is the normal resignation. Where an employee resigns from the employ of his employer and does so voluntarily, the employer may not discipline that employee after the resignation has taken effect. That is because, once the resignation has taken effect, the employee is no longer an employee of that employer and that employer does not have jurisdiction over the employee anymore. Indeed, even the CCMA or the relevant bargaining council would have no jurisdiction to entertain a referral of a dismissal dispute in such a case because there would be no dismissal as envisaged insection 186of the LRA. Therefore, if an employee who has validly resigned later refers an alleged unfair dismissal dispute to arbitration under the LRA and it is found that the employee had validly resigned and had not been dismissed, reinstatement would be incompetent....
Mahamo v Nedbank Lesotho Limited (2011) 9 LSLAC 9,
Resignation is a unilateral act which brings about termination of the employment relationship without requiring acceptance...Whilst the Respondent took every effort to ensure that the disciplinary hearing was procedurally fair, its efforts were unnecessary because the employment contract had already been terminated by the Applicant himself on 20thOctober 2000. . .
JR1983/2014
NUM obo Mpaki v Commission for Conciliation, Mediation and Arbitration and Others (JR1983/2014) [2016] ZALCJHB 354 (9 September 2016)
[133] A number of criteria have been identified as considerations which have influenced the findings of past judgments of the Industrial and Labour Appeal Courts. These include an approach involving the evaluation of all the surrounding circumstances, the significance or otherwise of the contractual stipulation, agreements, undertakings by the employer or practice or custom in regard to renewal or re-employment, the availability of the post, the purpose of or reason for concluding the fixed-term contract, inconsistent conduct, failure to give reasonable notice and nature of the employers business (see Olivier (supra) at 1030). [134] These factors are not a numerus clausus. Indeed, in my view, the identified approach of an evaluation of all the surrounding circumstances entails an analysis of the facts in any given situation for the purpose of establishing whether a reasonable expectation has come into existence on an objective basis.'
MEC for the Department of Finance, Eastern Cape versus De Milander & others[2011] 9 BLLR 893 (LC)
the Labour Court emphasised that the first test is whether the employee has actually expected a fixed term contract to be renewed. The employee testified to the reasons for the expectation that she had formed. The Court however held as follows: '[35] Turning to the facts of the present case, I am of the view that the employee has failed to discharge the onus of showing in the very first instance that she subjectively had an expectation that her contract would be renewed at the end thereof', and '[43] In my view, the above discussion indicates very clearly that the employee had failed to pass the first part of the test which is that she subjectively had the expectation that her fixed-term contract would be renewed. It is further my view that on this ground alone the employee failed to discharge the onus of showing the existence of a reasonable expectation that her contract would not have terminated but for the failure by the applicant to renew it. The contention of the employee is not supported by the facts and the circumstances of this case. The contention of the employee is also not supported by the objective facts which were put before the commissioner.'
Dierks v University of South Africa[1999] 4 BLLR 304 (LC)
It is clear from these cases that in this context legitimate expectations are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis (Attorney-General of Hong Kong case supra at 350c) (Administrator of the Transvaal & others v Traub & others (1989) 10 ILJ 823 (A) at 835D).
SA Rugby Players Association (SARPA) & others v SA Rugby (Pty) Ltd & others; SA Rugby Pty Ltd v SARPU & another [2008] ZALAC 3; [2008] 9 BLLR 845 (LAC) at 857
[41] The question before the courta quowas whether, on the facts of the case, a dismissal had taken place. The question was not whether the finding of the commissioner that there had been a dismissal of the three players was justifiable, rational orreasonable. The issue was simply whether, objectively speaking, the facts which would give the CCMA jurisdiction to entertain the dispute existed. If such facts did not exist, the CCMA had no jurisdiction irrespective of its finding to the contrary.
J 1292/16
Michelin Tyre CO South Africa (Pty) Ltd v Coetzee and Another (J 1292/16) [2016] ZALCJHB 249 (7 July 2016)
Natal Joint Municipal Pension Fund v Edumeni Municipality 2012 (4) SA 593 (SCA).
[18]The present state of the law can be expressed as follows: interpretation is the process of attributing meaning to the words use in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document.The inevitable point of departure is the language of the provision itself read in context and having regard to the purpose of the provision and the background to the preparation and production of the document
JS363/12
Nord v Civicus World Alliance for Citizen Participation Inc (JS363/12) [2016] ZALCJHB 162 (21 April 2016)
premature termination of a fixed term contract is permissible, where an express provision is made for such an event.respondent could retrench the applicant.
Buthelezi v Municipal Demarcation Board [2005] 2 BLLR 115 (LAC) at para 9
The first question that arises in the present matter is whether the respondent was entitled to terminate the employment contract between it and the appellant when it cancelled it. There is no doubt that at common law a party to a fixed term contract has no right to terminate such contract in the absence of a repudiation or a material breach of the contract by the other party. In other words there is no right to terminate such contract even on notice unless its terms provide for such termination.
Lottering v Stellenbosh Municipality [2010] 12 BLLR 1306 (LC) at para 14.
If the contract is for a fixed term, the contract may only be terminated on notice if there is a specific provision permitting termination on notice during the contractual period it is not an inherent feature of this kind of contract and accordingly requires specific stipulation.
Nkopane and Others v Independent Electoral Commission (2007) 28 ILJ 670 (LC).
To the extent that the provisions of the documents, including the form, are equally capable of different interpretations, it must be borne in mind that the respondent was the author of the relevant documents. It could easily have worded the form and the related documents to make it clear that the employment would terminate at the latest on the date specified and was subject to earlier termination for operational reasons. To the extent that it failed to make its intentions clear, the interpretation which favours the employee must, in accordance with the contra proferentem rule be preferred.
JA95/2014
Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd and Another (JA95/2014) [2016] ZALAC 4; (2016) 37 ILJ 902 (LAC); [2016] 5 BLLR 425 (LAC) (3 February 2016)
Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd1978 (1) SA 914(A); Hamilton v Van Zyl1983 (4) SA 379(E);Blou Bul Boorkontrakteurs v McLachlan1991 (4) SA 283 (T).
It follows that a term cannot be inferred because it would, on the application of the well-known officious bystander test, have been unreasonable of one of the parties not to agree to it upon the bystanders suggestion. Nor can it be inferred because it would be convenient and might therefore very well have been incorporated in the contract if the parties had thought about it at the time. A proposed tacit term can only be imported into a contract if the court is satisfied that the parties would necessarily have agreed upon such a term if it had been suggested to them at the time (see e.g.Alfred McAlpine(supra) at 532H - 533B andConsol Ltd t/a Consol Glass (supra)at para [50]. If the inference is that the response by one of the parties to the bystanders question might have been that he would fist like to discuss and consider the suggested term, the importation of the term would not be justified.
A contract may be vitiated by duress where intimidation or improper pressure renders the consent of the party subjected to duress no true consent.[2]Compulsion may be exercised by way of physical force, or indirectly, by way of a threat of harm. In order to obtain an order setting aside a contract on the grounds of duress, actual violence or reasonable fear must be shown. The fear must be caused by the threat of some considerable evil to the person concerned, or to his, or her, family. The threat or intimidation must be unlawful, orcontra bonos moresand the moral pressure used must have caused damage.[3]The burden of proving the existence of duress rests on the party raising it.
Arend and Another v Astra Furnishers (Pty) Ltd1974 (1) SA 298, Broodryk v Smuts NO 1942 TPD 47 at 51-52; Machanick Steel & Fencing v Transvaal Cold Rolling 1979 (1) SA 265 (T) at 271; Paragon Business Forms (Pty) Ltd v Du Preez 1994 (1) SA 434 (SOK) at 439F; Van den Berg & Kie Rekenkundige Beamptes v Boomprops 102 BK 1999 (1) SA 780 (T) at 784, Ball v Bambalela Bolts (Pty) Ltd and Another [2013] 9 BLLR 843 (LAC); (2013) 34 ILJ 2821 (LAC) at para 19; Tully v MLS Bank Limited [1999] ZALAC 36 (28 September 1999) at para 29
J2195/14
Western Platinum Ltd v Swart (J2195/14) [2016] ZALCJHB 454 (25 May 2016)
9] In any event, the founding affidavit does not establish that the respondent fraudulently induced the applicant to conclude the settlement agreement. There is no evidence that the respondent made any representation, let alone a representation that was false and which served actually to mislead the applicant. In these circumstances, I fail to appreciate how it can be said that the respondent fraudulently induced the applicant to enter into the settlement agreement.
PA07/15
Nogcantsi v Mnquma Local Municipality and Others (PA07/15) [2016] ZALAC 54; (2017) 38 ILJ 595 (LAC); [2017] 4 BLLR 358 (LAC) (22 November 2016)
subject to[a]vetting and screening process the municipality was conducting at the time and, in this regard, it was provided that should the revealed outcomes become negative your contract will be automatically terminated.[42] Significantly, the appellant freely and voluntarily agreed to a vetting and to an automatic termination, if the vetting yielded a negative result. This was material to the appellants suitability for the position he was employed in. As was pointed out earlier, the result was patently and objectively negative of and concerning the appellants suitability, which resulted in the automatic termination of the employment contract. The termination was not triggered by an act of which the aim and object (whether primary or secondary) was to end the employment relationship. Further, the condition in the agreement was not impermissible in terms of the LRA.
In deciding whether the suggested term can be inferred, the court will have regard primarily to the express terms of the contract and to the surrounding circumstances under which it was entered into. It has also been recognised in some cases, however, that the subsequent conduct of the parties can be indicative of the presence or absence or of the proposed tacit term.
Mampuelein particular, that even if a contract of employment is terminated by operation of law, but the termination was as a result of an act of the employer, the termination would constitute a dismissal...must also be understood as a deliberate or intentional act.
J118/13
Solidarity obo Snyman v Maxi Group Scheme (J118/13) [2016] ZALCJHB 185 (7 April 2016)
Application in terms of section 158(1)(c). Application satisfying requirements for settlement to be made an order of the court. Alleged breach of settlement agreement by Applicant not proved. Application granted.
JS172/15
De Lange v Kosmosdal Ext 61 and Ext 62 Homeowners Association Brooklands 3 Lifestyle Estate (JS172/15) [2016] ZALCJHB 481 (4 April 2016)
Fedlife Assurance Ltd v Wolfaardt(2001) 22 ILJ 2407 (SCA)
The majority of the court held that they did, and concluded that a contract of employment for a fixed term is enforceable in accordance with its terms, and that an employer is liable for damages for breach of contract on ordinary common law terms. Support for this view was found ins 195of the LRA, which provides that any award of compensation for an unfair dismissal is in addition to and not a substitute for any other amount to which an employee may be entitled in terms of any law or the contract of employment.
Cash In CC v OK Bazaars (1929) Limited[1993] ZASCA 204;1994 (2) SA 347AD.
KPMG Chartered Accountants (SA) v Securefin Limited and Another2009 (4) SA 399(SCA)
any person who is tasked with interpreting a contract and applying theparol evidencerule must first read and attach the ordinary grammatical meaning to the words
The second step is to determine the context within which the contract was drafted to understand the grammatical meaning thereof. Evidence regarding the circumstances that give a direct indication of the parties collective intention when the contract was negotiated and concluded, may be accepted and taken into consideration in interpreting the contract.
J633/2015
Orange Riet Water Users Association (Pty) Ltd v PAWUSA obo Moolman (J633/2015) [2016] ZALCJHB 84 (25 February 2016)
The award was overtaken by the settlement agreement...In the present matter the issue is whether the settlement agreement must take precedence over the award, which in my view is a different issue altogether. I see no reason in law or fairness why parties cannot conclude a settlement agreement after an award or even a judgment has been handed down to finally resolve the matter and avoid further litigation.
Molaba v Emfuleni Local Municipality [2009] 7 BLLR 679 (LC).
That judgment deals with the question whether a settlement agreement concluded prior to invoking the dispute resolution mechanisms set out in theLabour Relations Act canbe made an order of court. The court found that it could not.
A garden leave clause is understood to typically provide that if an employee gives notice, the employer may require the employee to spend a whole or part of the notice period at home, thus allowing confidential information to which the employee had access to become stale and keeping the employee out of the clutches of a competitor. (See Harvey on Industrial Relations and Employment Law A11 -90 paragraph [251], Whether the employee elects to do any gardening, it would seem, is a matter of personal inclination). The advantage for the employer, of course, is that the employee is rendered commercially inactive because he or she remains in employment, in circumstances where there is no risk to a reasonableness challenge that a restraint undertaking might otherwise attract. Of course, the disadvantage for the employer is that the employee remains entitled to remuneration for the notice period. In the case of a restraint, of course, the employee is not rendered entirely inactive, at least not outside of the bounds of the restraint. Here, public policy and other considerations play a role and the court must necessarily take into account the employees right to exercise his or her skills.
J 74/16
Vodacom (Pty) Ltd v Motsa and Another (J 74/16) [2016] ZALCJHB 53; 2016 (3) SA 116 (LC); [2016] 5 BLLR 523 (LC); (2016) 37 ILJ 1241 (LC) (9 February 2016)
Resignation is a unilateral act; When an employee gives the required notice, the contract terminates at the end of the notice period. When an employee leaves his or her employment without giving the required period of notice, the employee breaches the contract. Ordinary contractual rules dictate that the employer may hold the employee to the contract and seek an order of specific performance requiring the employee to serve the period of notice. Alternatively, the employer may elect to accept the employees repudiation, cancel the contract and claim damages. Of course, it is always open to the parties to terminate an employment contract on agreed terms and for either of them to waive whatever rights they might otherwise have enjoyed.
Sihlali v South African Broadcasting Corporation (J799/08; 14 January 2009)
JS1052/13
In this respect the applicant contends that the Commissioner did not have jurisdiction to determine the existence of the settlement agreement.
Gobombo v Servest (Pty) Ltd t/a Servest Security (JS1052/13) [2016] ZALCJHB 4 (6 January 2016)
Arend v Another v Astra furnishers 1974 (1) SA 298 (C).
it is clear that a contract may be vitiated by duress (metus), the reason detre of the rule apparently being that intimidation or improper pressure renders the consent of the party subject to the duress no consent.Duress may take the form of inflicting fear by means of threats, Where a person seeks to set aside a contract, or resist the enforcement of a contract on the ground of duress based on fear, the following elements must be established:(1) The fear must be a reasonable one. (2) It must be caused by the threat of some considerable evil to the person concerned or his family. (3) It must be a threat of an imminent or inevitable evil. (4) The threat or intimation must be unlawful or contra bones mores. (5) The moral pressure must have caused damage.
JR 2610/13
Cindi v Commission for Conciliation Mediation And Arbitration and Others (JR 2610/13) [2015] ZALCJHB 236 (4 August 2015)
Application to review and set aside the settlement agreement. Settlement agreement not a decision of the Commissioner but a decision reached by consensus between the parties. The role of a Commissioner is to facilitate a settlement agreement and not to make a decision for the parties. A settlement agreement is an outcome based on the consensus between the parties and not a decision of a Commissioner.
In my view, the third respondent is correct in its contention that the remedy in challenging the agreement that came into existence due to the alleged undue influence by the Commissioner, lies in the common law principles of contract. It is in this regard trite that the validity of an agreement in terms of the general principles of contract can be challenged under the following grounds:o impossibility of performance.o duress and/or undue influence.o Misrepresentation and/or fraud.
Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co 1978 (1) SA 914 (AD)
A transaction is an agreement between two or more persons either to end litigation or to prevent litigation resulting from the differences between them. It is most closely equivalent to consent judgment.Whether extra- judicial or embodied in an order of Court, it has the effect of res judicata and, like any other contract and any order of court, made by consent, it may be set aside on the grounds that it was fraudulently obtained or on the grounds of justus error, provided the error vitiated true consent and did not merely relate to motive or the merits of a dispute which it was the very purpose of the parties to compromise.
Not permitted to be employed in a similar business within a radius of 50 km from the applicants premises.
Applicant had not shown a persuasive interest worthy of protection but was merely seeking to stifle competition. The court was not satisfied that the interests of the applicant outweighed those of respondent and public policy required that it was more important for the employee to remain economically active
He would give undertakings not to contact the applicants customers or any of its employees and would not be employed in sales but merely as a bow technician. The applicant had another remedy available to it, namely it could have accepted the undertakings offered.
Phrase the pro rata portion of the profit share clearly and unambiguously meant the relevant portion of the amount. Agreement was to incentivise employees to remain in service
The applicant was de jure employed (in terms of the two contracts she relies on) at a job grade and with a remuneration package above the threshold provided for in section 10 and 17 of the BCEA. The fact that she takes home remuneration below that threshold had come about at her own instance.
The restraint was for a period of 12 months from the termination of his employment and applied countrywide and extended furthermore to any country in southern Africa in which the applicant conducted business.
The court held that it was reasonable to conclude that the first respondent had breached the provisions of the restraint prohibiting attempts to conduct business with prescribed customers in respect of prescribed services. Was interdicted for a period of 12 months from soliciting orders from prescribed customers for any prescribed services and for canvassing business in respect of any of the prescribed services from any prescribed customers.
There had to be a nexus between the breach and the loss actually suffered. As regards the claim for repayment of training costs, the court held that the terms of the agreement providing for the repayment of the costs was nothing but a penalty stipulation as envisaged by s 1(1) of the Conventional Penalties Act 15 of 1962. That clause was introduced as a weapon in terrorem and had been inserted to force the respondent to stay with the applicant.
Court could mero motu reduce the penalty.
s no evidence of an intention not to be bound by the employment agreement, there was no repudiation, employer wished her to hand in her access card did not suggest that she was dismissed.
legitimate expectation to renew
Deductions
It was clear that the amounts paid to employees as special skills allowances could not be deemed to have been overpayments made in error and therefore s 34(5)(a) did not apply
repudiation of the contract, entitling the innocent party either to elect to hold the other party to the contract and claim specific performance, or to claim damages caused by the breach.
Refused to sign; Stated that there is no contract; no written agreement needed
that in terminating his employment with immediate effect the municipality had committed a material breach of the contract
had no right in law to terminate the fixed-term contract prior to its expiry even if there were operational requirements that could have justified the termination for an indefinite period.
At common law a party to a fixed-term contract has no right to terminate such a contract in the absence of repudiation or a material breach by the other party
the LRA has no effect on the common law rule of termination of such a contract and that the common law rule was consistent with the spirit, purport and objects of the Bill of Rights
JA 37/02
Buthelezi, Nkanyiso Eustace v Municipal Demarcation Board
Rejected further the employers argument that the employee was only entitled to withdraw the offer with the employers consent (at [37] - [39], distinguishing Rustenburg Town Council v Minister of Labour & others 1942 TPD 220 on the basis that that case (and the line of cases following it) dealt with resignation, which is a unilateral act which terminates the employment relationship and therefore does not require acceptance).
party who approaches the LC in terms of s77(3) may only bring a strict contractual claim.
a restraint of trade clause binds the parties unless it is contrary to public policy. Noted further that the first question to be asked is whether the applicant had a protectable interest
LNH was merely a holding company and that the services sought to be protected by the restraint were in fact carried out by LNHs subsidiary companies in the various regions. Concluded that LNH did not have a protectable interest in the matter
Employee downplaying his importance in the organisation. Court holding that he would have had access to confidential information. Employer having a protectable interest.
Interpretation contended for by employee that what was prohibited was only the setting up by him of a new company would have absurd consequences. Employer had a protectable interest and restraint reasonable in its duration and extent.
restraint agreement itself contained no stipulated obligation on the part of the respondents when it came to confidential information in the agreement itself. It was not good enough to just define confidential information and describe what it was. The agreement also had to prescribe what was expected from the respondents with regard to such defined confidential information.
Fixed term contracts extended on two occasions and providing for continued employment after the expiry of contract on terms.
Validity of. Whether employee had acquired sufficient knowledge of secret information that created a protectable interest. Employee having only worked for a few months. Employer operating in sector that was highly competitive and where there was easily acquired price information. Period of restraint reduced from three years to four months.
the effect on their freedom to work was not disproportionate. They could work for an employer anywhere provided they did not breach the restraint clauses for a period of 12 months. The restraint was accordingly not unreasonable. The applicant had established a clear right for the relief it sought.
Although less compelling reasons for dismissal of probationary employee required, the dismissal still had to be for a fair reason which needed to be tested against item 8 (1) (a) to (h) of the Code of Good Practice, Unrealistic performance targets set and agreed to where infrastructure supporting employee not able to allow him to achieve his goals
had not in fact been dismissed but that her short term contract of employment had terminated. All permanent employees had written contracts whereas there were no written contract for temporary employees. No dismissal.
It appeared that the valve sales business formed a mere 10% of the applicants business and that the five customers whom she undertook not to supply, made up at least 90% of the applicants business in the valves. Too wide and not enforseable.
Applicant had refused to sign any contract. applicant was aware that the contract would expire at the end of April. the only offer of employment made by the employer was one of fixed term employment and there was no evidence of any oral agreement to contract on a different basis; the applicant not only bore the onus of proving a dismissal, but as he was claiming the existence of an indefinite employment relationship.
There was nothing confidential and unique about the manufacturing of clothes by the applicant. there was nothing confidential and unique about the manufacturing of clothes by the applicant.Dismissed.
Only for one year and Ltd to 4 provinces was not unreasonable. Restraint was not such that nullified the appellants right to choice of a trade, profession or occupation. Appellant had other skills.
At the end of those contracts it offered further contracts to the employees on amended terms. It then terminated the employment contracts through letters issued to each employee approximately 6 months after the termination of the original contract. The refusal to sign, which clearly was the reason for the termination of the contracts. Applicant issued the employees a number of ultimatums regarding the signing of the new contract.
circumstances to refer a contractual dispute to the Labour Court as a precondition to arbitration on an unfair dismissal claim, would defeat the statutory purpose of informal and expeditious dispute resolution, and would import a requirement that found no reflection in the Act. Certificate of outcome issued by a commissioner was not ordinarily an appropriate subject foran application for review and to the extent that the applicant sought to have the certificatereviewed and set aside, that part of the application had to fail. challenge that was best deferred to the arbitration stage of the statutory process.
To require an applicant in those
Private Arbitration
amounted to an award in terms of s31 of the Arbitration Act 42 of 1956 and could be made an order of the LC
Compensation
compensation in respect of unexpired portion of his contract
Substance not form considered
Section 24
to be referred to arbitration
C1006/2011
Cape Clothing Association v Southern African Clothing and Textile Workers Union and Another
Tsotetsi v Stallion Security Ltd (2009) 30 ILJ 2802 (LC) at para [17] [18] and Dell v HPD Construction [2010] 6 BLLR 626 (LC) were in conflict with the judgment of Van Niekerk J in Molaba & others v Emfuleni Local Municipality [2009] 7 BLLR 679 (LC) para [6]
Thus a settlement agreement in respect of a dispute that had not been referred to the CCMA could not be made an arbitration award in terms of s 142A(1).
CCMA lacked jurisdiction to declare a settlement agreement invalid
signed agreement under duress
Threat
party seeking to raise duress had to allege and prove a threat of considerable evil to the person or his family which induced fear; the fear was reasonable; the threat was imminent or inevitable; the threat was unlawful; and that the contract was concluded as a result of a threat.
JS707/03
Buthelezi v Liberty Group Ltd
Agreement to work new shifts ended dispute
either in words or conduct, evince[d] a clear intention not to go on with his [or her] contract of employment
Fijen v Council for Scientific & Industrial Research (1994) 15 ILJ 759 (LAC)
JR2007/07
Uthingo Management (Pty) Ltd v Shear NO & Others
resignation letters clear and unambiguous
Expectation of renewal; Objective test should be applied, namely whether a reasonable employee in the circumstances prevailing at the time would have expected the employer to renew his or her contract on same or similar terms
Height Safety and Safety Gear were in law, two separate entities
Safety Gear, based on the nature of its business, was not in competition with the applicant and therefore the interest which the applicant sought to protect through the restraint of trade provisions was not enforceable.
employee had breached agreement in that she hacked into employers IT system No evidence
Court order
not be enforced by a contempt order.
was in law and fact, a collective agreement and as such could be terminated on reasonable notice
J439/2010
Public Servants Association of SA v Gwanta and Another NNO
24 weeks or alternatively until the completion of the construction
It was a termination for operational reasons
Was reasonable and not contrary to public policy
24 months reduced to 12 months
reasonable expectation
subject to performance All indications were that employee had performed well during the five year period
not vested right; Strike unprotected
If supervisor terminate=terminate
Contra sec 5 and right not to be unfairly dismissed
does not include employment
not automatically give court jurisdiction to entertain review arising from such a process
no agreement implied or otherwise
187(1)(a)
withhold the employees salary until he signed the new contract; A refusal to pay an employee his salary would in most instances constitute a material breach of the contract
the employee gave no indication during the consultation meetings that he was unhappy with the process or the proposed changes and submitted no alternatives and no dispute in respect of a unilateral change of conditions and service was referred to the bargaining council. By refusing to sign the new contract, the employee in fact repudiated the terms and conditions of his employment, which constituted a breach of contract. The employers refusal to pay the employees salary was lawful as no reciprocal duty to pay the employee his salary arose as a result of the employees refusal to render his services in terms of the new contract.
Amazwi Power Products (Pty) Ltd v Shelly Turbull (JA 14/07),
Must be clear and unequivocal
77 BCEA
Novick & Another v Comair Holdings & Others 1979 (2) SAS 116 (WLD).
to reveal the nature or form of the misrepresentation made by the employer and how the misrepresentation had settlement agreement. Induced him to enter into the
Agreement has status of an award and cannot be set aside without the award being rescinded or set aside on review
142A
ECT Act defines an email, but not an sms; an sms is indeed an electronic communication which is transmitted from the originator to the addressee; did conclude a contact of employment, that the employer had unlawfully repudiated the contract
common law requirements for acceptance of an offer.
had to be an unequivocal acceptance of the offer. The acceptance had to correspond with the offer.(had to respond to the offer within the time stipulated by the employer.)the acceptance had to be made in the mode prescribed by the offeror.the offeree had to communicate acceptance of the offer to the offeror,
Electronic Communications Transactions Act 25 of 2002
D204/07
Jafta v Ezemvelo KZN Wildlife
contract was concluded and terminated in South Africa; the parties were both South Africans; the employees salary was paid in rands and in South Africa; after the employees second arrest, he was given an assignment to address tenders in various parts of South Africa; the calculation and administration of the employees salary and benefits were done in South Africa; and the arrangement for the return of the employers property which was in the possession of the employee was done in South Africa
dominant impression test used to determine employee status determining the proper law of contract and jurisdiction; most significant connection to the contract,
novation of fixed term contract not supported by evidence
whether the employee had a subjective expectation that the employer was going to renew his fixed term contract on similar or same terms and, if answered in the affirmative, whether such expectation was reasonable
186(1)(b)
Rectification
show the existence of the common, continuing intention of the parties, as it existed when the agreement was reduced to writing
Reasonable expectation of continued employment
equity and fairness; whether the employee subjectively expected the contract to be renewed or extended (which he/she need not share with the employer); and objective factors that support the expectation
in addition to showing the subjective anticipation for the renewal; the employee has to adduce evidence that points to the objective creation of such anticipation. Test: whether a reasonable employee in the circumstances prevailing at the time, would have expected the contract to be renewed on the same or similar terms.
C277/05
SACTWU & Another v Cadema Industries (Pty) Ltd
minority of unions members; Agreement entered into on behalf of union members is generally binding on them if they were members at the time of conclusion
no dismissal but rather a consensual termination in that the contract provided a mechanism for its own termination which had simply occurred. Held that not only was such a contract dubiously enforceable since the term appeared to be contra bonos mores and unconstitutional, it had not been recorded in writing
Short notice
could have sought an interdict in the form of a mandamus compelling the employee to adhere to the terms of the contract or could have sued him for three months salary in lieu of notice.
No right or expectation to be employed due to irregular application of a Policy
Bind non-members
E/r unlawful
fully breached its contractual obligations
JR853/18
Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (JR853/18) [2022] ZALCJHB 272 (4 October 2022)
[26] Ekurhuleni seems to suggest that it was justified in unilaterally implementing the Policy and, in so doing, reducing the rate of respondent employees nightshift allowance. This contention is untenable in the light of the following pertinent legal principles aptly enunciated by Labour Appeal Court, per Jafta AJA (as he was then) in Mazista Tiles (Pty) Ltd v National Union of Mineworkers and Others[(2004) 25 ILJ 2156 (LAC) at paras [48]; see also National Union of Metalworkers of South Africa and others v Aveng Trident Steel (a division of Aveng Africa (Pty) Ltd) and another [2021] 1 BLLR 1 (CC) at para [97] [101].]:An employer who is desirous of effecting changes to terms and conditions applicable to his employees is obliged to negotiate with the employees and obtain their consent. A unilateral change by the employer of the terms and conditions of employment is not permissible. It may so happen, as it was the position in the case, that the employees refuse to enter into any agreement relating to the alteration of their terms and conditions because the new terms are less attractive or beneficial to them. While it is impermissible for such employer to dismiss his employees in order to compel them to accept his demand relating to the new terms and conditions, it does not mean that the employer can never effect the desired changes. If the employees reject the proposed changes and the employer wants to pursue their implementation, he has the right to invoke the provisions of s 189 and dismiss the employees provided the necessary requirements of that section are met. (Own emphasis)
J 943/2022
Nlapo-Mofokeng v Emfuleni Local Municipality and Another (J 943/2022) [2022] ZALCJHB 236 (18 August 2022)
[10]...As the court pointed out in Du Randt, the remedy of specific performance may be available to an employee where terms and conditions are unilaterally varied by an employer. No such case is made in the founding affidavit. In any event, and to the extent that the applicant relies on section 158 (1)(a)(i), it is correct that the court is empowered to grant urgent interim relief where a case for that relief is properly made. In the present instance, as I have indicated, the dispute referred to the bargaining council is misguided, in the sense that section 64(4) does not create a substantive right in favour of individual employees who seek to reverse changes unilaterally effected to their contracts of employment. In so far as the applicant now appears to contend that her cause of action is contractual, bargaining councils have no jurisdiction to determine contractual disputes. This court will not grant interim relief pending the outcome of a dispute referred to a forum that patently has no jurisdiction.
[9] In Schoeman & another v Samsung Electronics SA (Pty) Ltd (1997) 18 ILJ 1098 (LC), this court held, in the context of a dispute that concerned the alleged unilateral reduction of a commission payable to an employee, that section 64 did not apply and that the section pertains to employees in a strike context. The court observed further that an individual employee cannot strike and that the section therefore had no application in the dispute, it being a dispute between an individual employee and her employer.
J711/2022
National Education, Health and Allied Workers Union [NEHAWU] obo Mamogale and 14 Others v Northwest Department of Community Safety and Transport Management and Another (J711/2022) [2022] ZALCJHB 182; (2022) 43 ILJ 2369 (LC) (12 July 2022)
[18] Since Mpanza, a number of judgments have limited an employers right to recover monies due to it from an employee by simply deducting the amount due from their salary, though they did not all deal with the application of section 34 of the BCEA[5]. The department has not made out a case that the recovery they are implementing satisfies the requirements of section 34, nor that it is permissible in terms of section 38 of the Public Service Act[6] (PSA). [19] The consequence is that deductions being implemented to recover the overpayment of salaries and which the department plans to continue are unlawful.
JR 1696/17
Independent Communications Authority of South Africa v Malapane and Others (JR 1696/17) [2022] ZALCJHB 90 (7 April 2022)
"[31] Obviously, the question is whether the amount that was deducted from Ms Malapanes salary in order to recover the study loan in terms of the AOD constitutes a statutory claim in terms of the BCEA so as to clothe the Commissioner with the jurisdiction in terms of section 74(2) of the BCEA. Notably, section 1 of the BCEA defines a basic condition of employment to mean a provision of this Act or sectoral determination that stipulates a minimum term or condition of employment.[32] To my mind, the proper construction to be accorded to section 74(2), given the facts and context of this matter, is that its applicability is ousted by the fact that Ms Malapanes claim for the amount that was deducted in relation to the study loan is not a claim of a basic condition of employment in terms of the BCEA.[Andrew Pandeka Chimphondah v Housing Investment Partners (Pty) Ltd and Others (JR 1195 of 2019) [2021] ZALCJHB 58 at paras 28-29.] Ms Malapanes reliance on section 74(2) is obviously misplaced. Hence, the Commissioner had no jurisdiction to entertain Ms Malapanes contractual claim."
[31] Obviously, the question is whether the amount that was deducted from Ms Malapanes salary in order to recover the study loan in terms of the AOD constitutes a statutory claim in terms of the BCEA so as to clothe the Commissioner with the jurisdiction in terms of section 74(2) of the BCEA. Notably, section 1 of the BCEA defines a basic condition of employment to mean a provision of this Act or sectoral determination that stipulates a minimum term or condition of employment.[32] To my mind, the proper construction to be accorded to section 74(2), given the facts and context of this matter, is that its applicability is ousted by the fact that Ms Malapanes claim for the amount that was deducted in relation to the study loan is not a claim of a basic condition of employment in terms of the BCEA.[Andrew Pandeka Chimphondah v Housing Investment Partners (Pty) Ltd and Others (JR 1195 of 2019) [2021] ZALCJHB 58 at paras 28-29.] Ms Malapanes reliance on section 74(2) is obviously misplaced. Hence, the Commissioner had no jurisdiction to entertain Ms Malapanes contractual claim.
JR1380/19
Sibanye Gold Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR1380/19) [2021] ZALCJHB 254; [2021] 11 BLLR 1153 (LC); (2021) 42 ILJ 2467 (LC) (23 August 2021)
1. The arbitration award issued by the Commissioner under case number GAJB25639-17 dated 14 June 2019 is reviewed and set aside, only to the extent that the Commissioner incorrectly found the acting allowance should be included when calculating Mr Hlophes severance pay and notice pay in terms section 41 BCEA, and replaced with the following order: 1. The method of calculating severance pay prescribed in the BCEA applies only to the calculation of severance pay payable in terms of the BCEA.
JS 522/19
Mkokeli v Bloemberg (JS 522/19) [2021] ZALCJHB 47; (2021) 42 ILJ 1224 (LC) (25 March 2021)
Section 187 (1) (d) requires the action to be in the exercise of any right conferred by the LRA. Lodging a grievance is not an exercise of a right conferred by the LRA. Referring a dispute alleging an unfair labour practice amounts to exercising of the right conferred by section 191 (1) (a) of the LRA.
[16] Mkokeli seem to be under an impression that by lodging a grievance he was insulated from dismissal on the strength of section 187 (1) (d) of the LRA. That impression is wrong just by mere regard to the text of the section. The section provides that the dismissal is automatically unfair if the reason for the dismissal is that the employee took action against the employer by exercising any right conferred by the LRA. Lodging a grievance is not one of the rights conferred by the LRA. The LRA confers many rights on employees but lodging an internal grievance is not one of those rights.
[18] The word by is used to identify the action an employee takes or intends taking. That action is to exercise any right conferred by the LRA. As indicated earlier, lodging a grievance as an agent of performing an action is not a right conferred by the LRA. In my view this issue has been authoritatively settled by the LAC in DBT Technologies. This judgment is authority for the proposition that lodging a grievance is not an exercise of a right conferred by the LRA. The judgment suggested that the only instance when a lodging of a grievance may be seen as an exercise of a right is where such an exercise is done in terms of a collective agreement. Murphy AJA stated the following:
[18] Where an employee files a grievance under a grievance procedure forming part of a collective agreement binding in terms of section 23 of the LRA, it is perhaps arguable that she exercises a right conferred (albeit indirectly) by the LRA. It does not seem that the grievance procedure applicable in this case formed part of a collective agreement. However, even if it did, such alone would not be sufficient
[23] As it was done in TSB Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey[10] where an employee was disciplined and/or dismissed owing to reporting an employer for a failure to adhere to a statutory duty, such may be instances covered by the Protected Disclosure Act[11]. I firmly take a view that such an instance does not fall under the section involved herein. Once there is no right conferred by the LRA and its exercise, the section cannot be invoked. With regard to subsection (1) (d) (ii) what is required is participation in any proceedings in terms of the LRA. The LRA contemplates the following proceedings; namely (a) conciliation; (b) mediation; (c) arbitration; and (d) adjudication. Grievance proceedings are not contemplated in the LRA. The only time the LRA reference the word grievances is in section 115 (3) (d) of the LRA. Such is specific to an advice and training for prevention and resolution of grievances. The other place to find reference to the term is in the definition of a strike action. I take a view that the purpose of the giving of an advice and training by the CCMA is aimed at limiting industrial strife.
J38/2021
National Union of Metalworkers of South Africa (NUMSA) obo Members and Others v South African Airways (SOC) Ltd and Others (J38/2021) [2021] ZALCJHB 6; (2021) 42 ILJ 1256 (LC) (8 February 2021)
Whether by making the settlement proposal the business rescue practitioners have breached the requirement in section 135 (3) by failing to treat all claims contemplated by section 135 (1) equally, or whether they have abused their positions and seek to extort a compromise from the unions and the members (as the applicants allege), is not a matter that falls to be regulated by the LRA, the BCEA or any other employment-related legislation. In short, given this courts limited statutory jurisdictional footprint in terms of section 157 (1) of the LRA, any claim that the business rescue practitioners have acted unlawfully, either by failing to follow the business rescue plan, or by failing to comply with section 135 (3) (a) of the Companies Act, is not for this court to determine.
[20]...I fail to appreciate how given these provisions, an employee of a company under business rescue is entitled to rely on section 32 (3) of the BCEA to enforce the payment of remuneration due, either in whole or as in the present case, in part. The reference to discrimination in section 79 of the BCEA is clearly an element of the protection against victimisation that is established by that section.
PA10/18
Zono v National Commissioner of Correctional Services N.O and Others (PA10/18) [2020] ZALAC 18; [2020] 9 BLLR 923 (LAC) ; (2020) 41 ILJ 2447 (LAC) (18 May 2020)
The Labour Court held that the determination of the appellants pensionable service in terms of the Rules of the GEPF is not a matter concerning a contract of employment. It is rather a matter concerning the interpretation and application of the Rules of the GEPF, which in this instance form a contract between the appellant and the GEPF.
No contractual dispute between employer and employee as contemplated in s 77(3) of the Basic Conditions of Employment Act- Labour Court not having jurisdiction
JR 580/2015
Health and Others Services Personnel Trade Union of South Africa (HOSPERSA) and Another v Mec-Free State Province and Others (JR 580/2015) [2019] ZALCJHB 53 (15 March 2019)
Unitrans Supply Chain Solutions (Pty) Ltd v SA Transport and Allied Workers Union and Others (2014) 35 ILJ 265 (LC) at para 13
[9] Aligned to the above enquiry however is whether what is alleged to have been changed falls squarely within the ambit of part and parcel of the terms and conditions of employment of the Dentists contract of employment[5].
See Ram Transport SA (Pty) Ltd v SATAWU and Another [2011] JOL 26805 (LC); Johannesburg Metropolitan Bus Services (Pty) Ltd v SAMWU and Others [2011] 3 BLLR 231 (LC);)
In determining this issue, the Courts have further drawn caution that a distinction ought to be drawn between a work practice as it exists and a term and condition of employment[6].
See A Mauchle (Pty) Ltd t/a Precision Tools v NUMSA [1995] 4 BLLR 11 (LAC); Apollo Tyres South Africa (Pty) Ltd v National Union of Metalworkers of South Africa (NUMSA) and Others [2012] 6 BLLR 544 (LC)
This is premised on the basic principle that whilst the terms and conditions of employment cannot merely be changed at the whim of the employer, work practices on the other hand are by their nature subject to the employers prerogative[7].
[12] The applicants case was that commuted overtime had resulted in a tacit terms to their contracts of employment, which could not be overridden by the Departments Policy as implemented from 1 April 2014. As I understood the argument, the applicants rely on a tacit term based on a long-standing practice in regards to commuted overtime. In CEPPWAWU obo Konstable & others v Safcol[[ 2003] 3 BLLR 250 (LC). See also Edcon Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2017] 4 BLLR 391 (LC); (2017) 38 ILJ 1660 (LC] the Court held that a long-standing practice and yearly custom did not form an employment condition, unless the parties intention was to create a contractual right.
[15] The above lapses and omissions to comply with the provisions of the Policy in my view could not have created a tacit term in the contracts of employment of the Dentists for a variety of reasons, including that the Department is enjoined to manage public finances in accordance with the provisions of the PFMA and other strict Treasury Regulations.
J3701/18
Gama v Transnet SOC Limited and Others (J3701/18) [2018] ZALCJHB 348 (19 October 2018)
Mmethi v DNM Investment CC t/a Bloemfontein Celtics Football Club (2011) 32 ILJ 659 (LC) at para 17.
In short the principle in our law is that a clause in an agreement, as is the case in the present matter, which provides for a dispute to be referred to arbitration does not preclude a party from initiating court proceedings to have the dispute adjudicated by the court. What an arbitration clause however does is that it obliges the parties in the first instance to refer the dispute to arbitration. As stated earlier a party seeking to invoke and rely on the arbitration clause in the agreement must request a stay of such proceedings, pending the determination of the matter by an arbitrator. The court retains discretion whether or not to entertain the matter or hold the parties to their agreement and order them to resolve their dispute in terms of their agreement but retain the supervisory power over the arbitration process.'
Lufuno Mphaphu/i and Associates (Pty) Ltd v Andrews and another 2009 (6) BCLR 527 (CC) at para 219.
The decision to refer a dispute to private arbitration is a choice which, as long as it is voluntarily made, should be respected by the courts...'
JR1249/16
Trans Caledon Tunnel Authority SOC Limited v Bleeker and Others (JR1249/16) [2018] ZALCJHB 261 (15 August 2018)
[20] Also, without prior notice, Ms Bleeker could not have known that she was going to be held responsible for the overall performance of the organisation, including the fruitless and wasteful expenditure. At least, the applicant ought to have afforded Ms Bleeker an opportunity to be heard prior to taking the final decision not to pay her bonus, a well-entrenched benefit defined in Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[[2013] 5 BLLR 434 (LAC) at para 50.] as an existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employers discretion. Even though the employer has a discretion not to pay a bonus, that discretion must be exercised judiciously. In this instance, Ms Bleeker was presented with a fait accompli.[21] In the premise, it is my view that the applicants decision not to pay Ms Bleeker her performance bonus for the financial year 2014/2015 is arbitrary, capricious and inconsistent with the constitutional imperatives.[Supra at paras 42 and 53. See also NEHAWU v University of Cape Town and Others 2003 (2) BCLR 154 (CC) at para 34.] The commissioner cannot be faulted in her finding in that regard.
J1833/18
Association of Mineworkers and Construction Union v Anglo American Platinum Ltd and Others (J1833/18) [2018] ZALCJHB 238; [2018] 11 BLLR 1110 (LC); (2018) 39 ILJ 2280 (LC) (2 July 2018)
[31] A unilateral change to a contract of employment, as with any contract, ordinarily amounts to a breach of the contract and affords the aggrieved party the contractual remedies of specific performance or cancellation and damages (see Abrahams v Drake and Scull Facilities Management (SA) Pty Ltd (2012) 33 ILJ 1093 (LC)).
[32] As a general rule, an employer who wishes to effect changes to an employees terms and conditions of employment is required to obtain the employees consent. This is ordinarily effected by agreement with the individual concerned. Where the employee is represented by a bargaining agent in the form of a trade union, any changes to terms and conditions are regulated at a collective level and must necessarily be effected through the process of collective bargaining. In general terms, that process must be exhausted before any unilateral change can be made by the employer which at this stage, subject to the protection granted by s 64(4) of the LRA, constitutes a legitimate exercise of economic power.
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA). At para 18
Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. The 'inevitable point of departure is the language of the provision itself', read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.
[44] Taking all of these instruments into account, in my view, Rusplats retains the prerogative in terms of the contracts of employment of each of the unions members to determine the provident fund to which its employees are required to belong. That being so, Rusplats did not breach the terms of the contracts when it required the unions members to join Old Mutual.
[45] To the extent that the union avers, as it does in the founding affidavit, that a change of retirement fund is a change to the term and conditions of an employment contract which requires at the very least proper and transparent consultations prior to any changes being made, it follows from the above finding that Rusplats was in law not required to consult with the union before implementing the change. The subject of the change cannot give rise to any legal obligation to consult. What matters in contractual terms is whether the employer is permitted to effect the change without securing the employees prior consent. For the reasons recorded above, in this instance, it is.
[54] ...The LRA does not compel bargaining, even less so does it require any party to a collective bargaining process to bargain in good faith. The absence of any statutory duty to bargain in good faith was a conscious policy choice. The model that finds expression in the LRA is one which allows parties, through the exercise of power, to determine their own arrangements. It avoids the rigidities that might be introduced by way of judicial intervention should an obligation to bargain in good faith be legally enforceable (see the Explanatory Memorandum published in (1995)16 ILJ at 292). This court has on numerous occasions held that it will not subject the conduct of collective bargaining partners to scrutiny, unless they act unlawfully.
SA Municipal Workers Union & another v SA Local Government Association & others (2010) 31 ILJ 2178 (LC), this court said (at paragraph 16 of the judgment)
The LRA introduced a voluntarist system of collective bargaining, a system in which neither this court (nor any other court or tribunal) is empowered to scrutinize bargaining conduct or make pronouncements on the good faith or otherwise exhibited by the any of the parties to collective bargaining
[56] In short: in the absence of a legally enforceable duty to bargain in good faith, this court is not empowered to subject the lawful acts of collective bargaining partners to scrutiny by reference to any standard of good faith.
J 867/15
Mahasha v BT Interior DSGN (PTY) LTD (J 867/15) [2018] ZALCJHB 438 (8 June 2018)
[17] Effectively the Applicant is faced with a task of establishing that she was indeed a party to a contract that was to run for 31 months prior to canvassing its breach and the remedies. To this end and based on what is placed before the Court which is indeed and by and large of common cause in this respect, the Applicant has not attempted to demonstrate this as her case was solely focused on the last day of the 31 months period without any certainty about the first. In essence it cannot be said that the Applicant is entitled to a claim for damages under a contract which its endurance was subject to successful completion of probation.
Johnson & Johnson v Chemical Workers Industrial Union (1999) 20 ILJ 89 (LAC) and again on Fedlife Assurance Ltd v Wolfaardt [2002] 2 ALL SA295 (A).
Since the Respondent did not afford the Applicant an opportunity to be assessed, termination of her contract before the end of the probation period coupled with its failure to proffer a cogent reason, the Respondent should as such be found to be in breach of the contract. The Applicant should under the circumstances be awarded damages as prayed for.
JS581/15
Garnevska v DBT Technologies (Pty) Ltd t/a DB Thermal (JS581/15) [2018] ZALCJHB 23 (26 January 2018)
[47]Evidence presented before me in respect of charge 2 clearly indicates that the respondent reacted to the grievance that the respondent had lodged whereby she was exercising her rights, and most importantly the evidence of Mr Kruger as conceded that the decision to call the applicant before a disciplinary hearing and what led to her dismissal was the outcome of the grievance hearing. As I have mentioned that the outcome therein suggests nothing and/or raises the allegations in charge 2. In addition to the above, I have taken into account the evidence of Ms Govender that she was only asked in March2015 about an incident that took place in April2014, clearly, this came about as a result of the applicant exercising her rights.
National Union of Public Service and Allied Workers obo Mani and others v National Lotteries Board (Mani) (2014) 35 ILJ 1885 (CC)
the court would determine whether, upon an evaluation of all the evidence, was thedominantormost likely cause of the dismissal(Own emphasis)
SA Chemical Workers Union & Others v Afrox Ltd (1999) 20 ILJ 1718 (LAC). Cited in Kroukam.
The enquiry into the reason for the dismissal is an objective one, where the employers motive for the dismissal will merely be one of a number of factors to be considered. This issue (the reason for the dismissal) is essentially one of causation and I can see no reason why the usual two fold approach to causation, applied in other fields of law should not also be utilized here . The first step is to determine factual causation: was participation or support, or intended participation or support, of the protected strike a sine qua non (or prerequisite) for the dismissal? Put another way, would the dismissal have occurred if there was no participation or support of the strike? If the answer is yes, then the dismissal was not automatically unfair. If the answer is no, that does not immediately render the dismissal automatically unfair; the next issue is one of legal causation, namely whether such participation or conduct was the main or dominant, or proximate, or most likely cause of the dismissal. There are no hard and fast rules to determine the question of legal causation (compare S v Mokgethi at 40). I would respectfully venture to suggest that the most practical way of approaching the issue would be to determine what the most probable inference is that may be drawn from the established facts as a cause of the dismissal, in much the same way as the most probable or plausible inference is drawn from circumstantial evidence in civil cases. It is important to remember that at this stage the fairness of the dismissal is not yet an issue Only if this test of legal causation also shows that the most probable cause for the dismissal was only participation or support of the protected strike, can it be said that the dismissal was automatically unfair in terms of s 187(1)(a)? If that probable inference cannot be drawn at this stage, the enquiry proceeds a step further.
Cooperand Another v Merchant Trade Finance Ltd (474/97) [1999] ZASCA 97 (1 December 1999).
It is not incumbent upon the party who bears the onus of proving an absence of an intention to prefer to eliminate by evidence all possible reasons for the making of the disposition other than an intention to prefer. This is so because the court, in drawing inferences from the proved facts, acts on a preponderance of probability. The inference of an intention to prefer is one which is, on a balance of probabilities, the most probable, although not necessarily the only inference to be drawn. If the facts permit of more than one inference, the court must select the most plausible or probable inference. If this favours the litigant on whom the onus rests he is entitled to judgment. If on the other hand an inference in favour of both parties is equally possible, the litigant will have not discharged the onus of proof [17](Own emphasis)
[47]Evidence presented before me in respect of charge 2 clearly indicates that the respondent reacted to the grievance that the respondent had lodged whereby she was exercising her rights, and most importantly the evidence of Mr Kruger as conceded that the decision to call the applicant before a disciplinary hearing and what led to her dismissal was the outcome of the grievance hearing. As I have mentioned that the outcome therein suggests nothing and/or raises the allegations in charge 2.
JR1078/14
Bakker v Commission for Conciliation, Mediation and Arbitration and Others (JR1078/14) [2018] ZALCJHB 13 (24 January 2018)
Wulfsohn Motors (Pty) Ltd t/a Lionel Motors v Dispute Resolution Centre & Others (2008) 29 ILJ 356 (LC) at para [12]
Where it appears from the circumstances of a particular case that an employee could or should reasonably have channelled the dispute or cause of unhappiness through the grievance channels available in the workplace one would generally expect an employee to do so. Where however, it appears that objectively speaking such channels are ineffective or that the employer is so prejudiced against the employee that it would be futile to use these channels, then it may well be concluded that it was not a reasonable option in the circumstances.
[57]Absa took all reasonable steps to address the Applicants cause of complaints despite the fact that there was no substance to the complaints.
JA90/15
Lou-Anndree v Afrox Oxygen Limited (JA90/15) [2018] ZALAC 4 (29 January 2018)
JA48/2016
Labournet (Pty) Ltd v Jankielsohn and Another (JA48/2016) [2017] ZALAC 7; [2017] 5 BLLR 466 (LAC); (2017) 38 ILJ 1302 (LAC) (10 January 2017)
Court also finding that true dispute about retraining employee working for a competitor court restating that employee cannot be interdicted or restrained from taking away his or her experience, skills or knowledge, even if those were acquired as a result of the training which the employer provided to the employee. Labour Courts judgment upheld and appeal dismissed.
Reddy v Siemens Telecommunications (Pty) Ltd (above) is really covered by the relationship between the first and third questions identified in Basson v Chilwan (above) and relates to proportionality. See further Ball v Bambalela Bolts (Pty) Ltd and Another (above) at para 18.
the following questions require investigation,[9] namely, whether the party who seeks to restrain has a protectable interest, and whether it is being prejudiced by the party sought to be restrained. Further, if there is such an interest to determine how that interest weighs up, qualitatively and quantitatively, against the interest of the other party to be economically active and productive. Fourthly, to ascertain whether there are any other public policy considerations which require that the restraint be enforced. If the interest of the party to be restrained outweighs the interest of the restrainer the restraint is unreasonable and unenforceable.[10]
that the reasonableness and enforceability of a restraint depend on the nature of the activity sought to be restrained, the rationale (purpose) for the restraint, the duration of the restraint, the area of the restraint, as well as the parties respective bargaining positions. The reasonableness of the restraint is determined with reference to the circumstances at the time the restraint is sought to be enforced.[12] With reference particularly to the facts of this matter, it is an established principle of law that the employee cannot be interdicted or restrained from taking away his or her experience, skills or knowledge, even if those were acquired as a result of the training which the employer provided to the employee.[13]
[44] Even though it is acknowledged that it is difficult to distinguish between the employees use of his or her own knowledge, skill and experience, and the use of his or her employers trade secrets, it is accepted that an employee cannot be prevented from using what is in his, or her, head.[14]
Sibex Engineering Services (Pty) Ltd v Van Wyk and Another 1991 (2) SA 482 (T) at 507D-H.
In seeking to protect his investment in training the workmen, the employer is pursuing an objective which is unreasonable and contrary to public policy. For public policy requires that workmen should be free to compete fairly in the market place to sell their skills and know-how to their own best advantage; and the enforcement of a restraint which has no objective other than to stifle such free and fair competition is unreasonable and contrary to public policy.
J1034/16
Maboza v Matjhabeng Local Municipality and Another (J1034/16) [2017] ZALCJHB 427 (23 November 2017)
[2] The deductions made by the First Respondent from the Applicants monthly remuneration to recover overpayments made as a result of her being paid as an Electrician at level 8 instead of level 9 (the overpayments) are unlawful by virtue of being in breach of s 34 of the BCEA.
[12] The deductions made must satisfy the requirements of s 34(1) to be lawful. If no agreement to the deduction is concluded in accordance with s 34(1)(a) then there must be some other source for the legal authority to make it in terms of s 34(1)(b), which inter alia authorises a deduction permitted in terms of a law. Section 34(5) is a provision in terms of the same Act, which permits deductions to be made for overpayments, but only if the reason for the overpayment was an error in calculating the employees remuneration. The error in this case was not one of calculation but one relating to the true level on which the applicant had been employed, so the employer cannot rely on s 34(5)(a).
Sibeko v CCMA (2001) JOL 8001 (LC)
It is indeed so that in terms of the Basic Conditions of Employment Act, an employer may not deduct amounts from the salary or remuneration of an employee without the employee's consent. Where an employee was however overpaid in error, the employer is entitled to adjust the income so as to reflect what was agreed upon between the parties in the contract of employment, without the employee's consent.' [4]
Jonker v Wireless Payment Systems CC (2010) 31 ILJ 381 (LC)
[21] In support of her case that her right had been interfered with the applicant relied on the provisions of s 34(1) of the Basic Conditions of Employment Act. That section prohibits an employer from making any deductions from an employee's remuneration unless the employee agrees in writing. It is indeed correct that as a general rule the Basic Conditions Employment Act prohibits deductions from employees' salaries without their prior consent. However, deductions without consent are permitted where they are permitted by the law, a collective bargaining agreement and a court order or arbitration award. In these instances all that the employer needs to do is to advise the employee of the error in payment and the deduction made or to be made. See Papier & others v Minister of Safety & Security & others (2004) 25 ILJ 2229 (LC).
J1862/1
Sekhute and Others v Ekhuruleni Housing Company Soc (J1862/17) [2017] ZALCJHB 318 (5 September 2017)
15]I believe the trend discernible from the judgments cited is that repayment of overpaid remuneration is asui generiscategory of money lawfully recoverable by an employer from an employee and, on the same reasoning as that in theBoffard, is a way of recovering undue remuneration. At the very least, I believes 34(5)was clearly intended to authorise a particular type of deduction for amounts due to an employer not arising from debts of the kind contemplated bys 34(1)and even ifs 34(5)must be read as subject tos 34(1), thens 34(5)is a provision of a law contemplated ins 34(1)(b) which permits recovery without consent. At common law, the obligation of an employee to refund an employer for an overpayment made in error in essence would appear to be an obligation that could found an action based on unjust enrichment in the form ofthecondictio indebiti.[7]It would serve little purpose ifs 34(5)was included simply to reaffirm the existence of a common law right to recover payments made in error. The more plausible interpretation of the provision is that the legislature intended it to specifically authorise deductions for overpayments of remuneration.
SA Medical Association on behalf of Boffard v Charlotte Maxeke Johannesburg Academic Hospital & others (2014) 35 ILJ 1998 (LC)
[39] It is apparent from these decisions that the view taken by the Labour Court is that an overpayment as a result of an administrative error does not constitute remuneration as defined in terms of the BCEA. Since it is outside the parameters of the BCEA, an employer is not required to obtain the consent of an employee before effecting the deductions as required by s 34(1) of the BCEA.
Padayachee v Interpak Books (Pty) Ltd (2014) 35 ILJ 1991 (LC)
[27] It is noteworthy that the drafters of s 34 chose to identify and deal separately with a number of different types of deductions. This must mean that the purpose of the provision is to regulate these deductions.[28] It thus follows that any enquiry into s 34 should commence by identifying the nature and purpose of the deduction in dispute and then ascertain whether the section requires employers to regulate such deductions in a particular manner.[4]
JR512/15
Bokwa Attorneys v Commission for Conciliation, Mediation and Arbitration and Others (JR512/15) [2017] ZALCJHB 344 (19 September 2017)
poor work performance
Palace Engineering (Pty) Ltd v Thulani Ngcobo and Others [2014] 6 BLLR 557 (LAC).
The acceptance of less compelling reasons for dismissal in respect of a probationary employee as contemplated in item 8(1)(j) of the Code does not, in my view, detract from the trite principle that the dismissal must be for a fair reason. Even though less onerous reasons can be accepted for dismissing a probationary employee, the fairness of such reasons still needs to be tested against the stipulations of item 8(1)(a)-(h) of the Code of Good Practice. At the end of the day, the onus rested on the employer to prove that the dismissal was substantively fair. The conspectus of the evidence proved the opposite, that the dismissal was substantively unfair.
[18] In his analysis, the arbitrator arrived at the finding that the applicant was not made aware of her non-performance after taking into consideration the third respondents undisputed evidence that she had no knowledge of her alleged under-performance, as her performance was not evaluated. In fact, it is apparent that the applicant did not clearly set out the third respondents performance standard except its expectation of her to perform independently. If the applicant did, the third respondent did not know her performance targets and her performance was clearly not assessed. It was further apparent that, if there was any performance standard or target, there was no evidence on the seriousness of the third respondents failure to meet such performance standard.
J2832/16
Weir Minerals Africa (Pty) Ltd v Potgieter and Others (J2832/16) [2017] ZALCJHB 199 (26 May 2017)
[9] The principles relevant to the enforcement of restraints of trade are well- established and I do not intend to repeat them here. A party seeking to enforce the restraint agreement is required only to invoke the agreement and prove a breach of it. A respondent who seeks to avoid the restraint there has an onus to demonstrate on a balance of probabilities that the restraint agreement is unenforceable because it is unreasonable.
Basson v Chilwan and others [1993] ZASCA 61; 1993 (3) SA 742 (A)
where the court stated that the reasonableness or otherwise of a restraint is to be determined by the following: 1. Is there an interest of the one party, which is deserving of protection at the termination of the agreement? 2. Is that interest being prejudiced by the other party? 3. If so, does the interest weigh up qualitatively and quantitatively against the interests of the latter party so that the latter should not be economically inactive or unproductive? 4. Is there another facet of public policy having nothing to do with the relationship between the parties but which requires that the restraint should either be maintained or rejected?
[10] It is equally well-established that in relation to the first enquiry established byBasson v Chilwanthat proprietary interests deserving of protection are of two kinds. The first is all confidential matter which is useful for the carrying on of the business and which could be used by competitor, if disclosed to them, to gain a relative competitive advantage. The second is the relationships with customers, potential customers, suppliers and others that go to make up what is referred to as the trade connections of the business. The onus is on the respondent to prove the unreasonableness of the restraint.
New Just Fun Group (Pty) Ltd v Turner and others(J786/14, unreported)
The truncated relief sought seeks to limit the scope of the restraint There are at least two reasons why the applicant ought not to be bound to attempt to enforce the full ambit of the restraint. First, it is well-established that a court is entitled to enforce the restraint partially by restricting the scope of its operation to reflect what is found to be reasonable.
JR322/15
Rademeyer v Aveng Mining Ltd and Others (JR322/15) [2017] ZALCJHB 257 (28 June 2017)
Section 186(1)(b)
De Milander v Member of the Executive Council for the Department of Finance: Eastern Cape and Others (2013) 34 ILJ 1427 (LAC)
The test whether or not an employee has discharged the onus is objective, namely, whether a reasonable employee would, in the circumstances prevailing at the time, have expected the employer to renew his or her fixed-term contract on the same or similar conditions.... In order to assess the correctness of Mr Le Roux's contention that the appellant had a reasonable expectation that her contract would be renewed and that the MEC's failure to renew it constituted a dismissal, it is first necessary to determine whether she in fact expected her contract to be renewed, which is the subjective element. Secondly, if she did have such an expectation, whether taking into account all the facts, that expectation was reasonable, which is the objective element. Whether or not her expectation was reasonable will depend on whether it was actually and genuinely entertained
JS845/2014
Country Thorp v National Homebuilders Registration Council (JS845/2014) [2017] ZALCJHB 167 (6 April 2017)
Claim in contract for payment of performance bonus and golden handshake. On the facts - bonus payment discretionary, and cannot form basis of claim in contract, plaintiff failed to prove agreement in terms of which he would be paid a lump sum at termination of fixed term contract in the event of non-renewal.
JS708/14
Mpanza and Another v Minister of Justice and Constitutional Development and Correctional Services and Others (JS708/14) [2017] ZALCJHB 48; (2017) 38 ILJ 1675 (LC); [2017] 10 BLLR 1062 (LC) (31 January 2017)
In terms of section 34 (2) (b) of the BCEA the respondents had to follow a fair procedure and had to give the applicants a reasonable opportunity to show why the deductions should not be made. The applicants were given letters by Ms Phahlane who asked them to give reasons why the deductions were not to be made. They received the letters. Their testimony was that they responded to the letters. They were asked to produce proof of their submission of their responses but none was forthcoming. The probability is that the applicants failed to tender their responses.
J2819/16
Motale v The Citizen 1978 (Pty) Ltd and Others (J2819/16) [2017] ZALCJHB 22; [2017] 5 BLLR 511 (LC) (27 January 2017)
[28]. There are number of judgments dealing with the failure of an employer to comply with its disciplinary procedure, specifically when the disciplinary procedures form part of the contract of employment
Ngubeni v The National Youth Development Agency and Another (2014) 35 ILJ 1356 (LC); and Solidarity and Others v South African Broadcasting Corporation 2016 (6) SA 73 (LC); (2016) 37 ILJ 2888 (LC).
the Court held that failure of an employer to comply with its disciplinary code procedure, where the disciplinary code procedure forms part of employees contract is a breach of that contract entitling the employee to relief. In both matters the court declared the decision by the employer to terminate the contract without complying with the disciplinary code to a breach of contract entitling the employees to be reinstated.
[29]. The applicants contract of employment specifically incorporates the disciplinary code and procedure and it is clear that the respondents had not complied with the disciplinary code and procedure when they terminated the applicants contract. As a result, I am satisfied that the respondents termination of the applicants contract of employment constituted a breach thereof and that the applicant is entitled to be reinstated.
[30]. Given the specific circumstances of this matter and in particular the applicants complaint regarding the failure of the respondents to conduct a disciplinary inquiry and the position he found himself in at the time of termination of his contract it is appropriate that his reinstatement be accompanied by an order directing the respondents comply with the disciplinary code and procedure, in other words in order for specific performance.
[32]. There is no reason why despite the absence of urgency and the limited relief that the applicant is entitled to that cost should not follow the result.
Employer claiming that it had made a reasonable error in not reading the pro forma contract. The failure to check the contract also had to be seen in the context of a prior understanding. Given this context there was a duty on the applicant to mention the material amendments and the doctrine of caveat subscriptor could not assist him.
Salary deductions, not entitled to rely on s 34(1)(b) and ignore s 34(1)(a) and 34(2). Purpose of provision and formalities clearly to protect employees against arbitrary conduct and to provide employers with simple and quick method of obtaining relief without resorting to litigation.
Jardine v Tongaat-Hulett Sugar Ltd [2003] at 7 BLLR 717 (LC) which had held that leave not taken within the six months after the end of a leave cycle was not automatically forfeited nor was any rights to payment in respect of that leave forfeited.
Jooste v Kohler Packaging Ltd (2004) 25 ILJ 121 (LC) where the court held that the pro-rated payment in respect of a current leave cycle aside, s 40 of the BCEA contemplated payment only in respect of leave immediately preceding that during which the termination took place.
the duties of the new manager was similar to the employees duties and that by taking away duties it amounted to taking away her responsibilities which resulted in the diminution of her status.
Minister had the power to transfer the employee in terms of s 14 of the Public Service Act and, as the executive authority, also had the power to direct the employee temporarily to perform other functions in terms of s 32 of that Act. She had suffered no reduction in salary and had not been demoted.
He refused to sign the restraint of trade agreement. Amounted to a fundamental change to the terms and conditions of his employment that were clearly less favourable. Dismissal was procedurally unfair and the applicant was to be paid an amount equal to 12 months.
S 186(2)(a) , employee, she would in accordance with Schoeman v Samsung not have the right tostrike. The notion that the benefit had to be based on an ex contractu or ex lege entitlementwould, in a case like the present, render the unfair labour practice jurisdiction sterile. Thebenefit in s 186(2)(a) of the Act meant existing advantages or privileges to which anemployee was entitled as a right or granted in terms of a policy or practice subject to theemployers discretion. In as far as Hospersa, GS4 Security and Scheepers postulated adifferent approach, they were wrong.
J1926/12
POPCRU obo Moyo v Minister of Correctional Services and Another
excludes overtime
JA49/08
Mondi Packaging (Pty) Ltd v Director-General: Labour & Others
subsequently attempting to change notice
showing no prima facie right
J905/10
De Villiers v Premier, Eastern Cape and Others
Unilateral change to individuals contract
employer could not unilaterally implement a change to terms and conditions of employment
not include overtime pay
BCEA
s 4, 70, 77(1) BCEA
Jurisdiction
No costs orders if value = small claims court
J2218/08
Fourie v Stanford Driving School and 34 related cases
s 41 of the BCEA,
Set-off could not be equated to a prohibited deduction in terms of s 34 of the BCEA under those circumstances.
determination of their shift patterns remained within the applicants prerogative as a work practice
ordered to restore and comply with the terms
only through collective agreement
7 days notice- short notice.
employer as such had failed to show that the alleged loss
BCEA applies where no Collective agreement
National Union of Mineworkers v Commission for Conciliation, Mediation and Arbitration and Others (2007) 28 ILJ 1614 (LC)
An inference from circumstantial evidence could be drawn only if there existed objective facts from which to infer other facts which was sought to be established; did not apply to the situation where a party brought a claim that fell under the jurisdiction of the court, lost and then wanted to rely on an alternative claim that should have been referred to the CCMA or bargaining council
D352/06
Adcan Marine v CCMA & Others
Other case law cited
Chirwa v Transnet Ltd and Others (2008) 2 BLLR 97 (CC)
could not be interpreted so widely as to include any matter concerning a contract of employment, which was already regulated in the LRA
No, only work practices
No strike
Transport allowance not wage increase
Sunday was public holiday. It remained a public holiday, and that the Monday succeeding was added to the list of public holidays
NEMISA was in breach of the employment contract by not paying him for services duly tendered
that operational requirements could not provide valid justification for effecting a reduction in working hours without the agreement of all parties. Held further that without agreement being obtained this constituted a repudiation of their terms of employment and was unlawful
employer was not entitled to treat the employee as having forfeited his right to leave in excess of 40 days
the employer had a contractual obligation to pay the excess because in terms of the contract of employment it bore an obligation to ensure that the employee took leave as and when it became due and because it had dismissed the employee (for misconduct), thus depriving the employee of taking any leave prior to the termination of his contract
in respect of the accumulation of leave the provisions of the BCEA were more favorable to the employee than those in his contract of employment; It does not impose an obligation on the employee to take leave within six months after the end of the annual leave cycle. Leave not taken within six months is not automatically forfeited. Held further, however, that an employer can require an employee contractually to take leave in terms of s20(4) .
D849/02
Jardine v Tongaat-Hulett Sugar Ltd
only one time period in s64(1)(a), namely the period of 30 days mentioned in s64(1)(a)(ii). The LC held that the issuing of a certificate is not a reference to a time period but to the happening of an event, and concluded that it was competent to order the employer to refrain from implementing the change for 30 days from the date of referral of the dispute, notwithstanding that conciliation had taken place and a certificate of outcome issued.
where an employer takes away a company car from an employee, which car the employee is entitled to in terms of the contract of employment, that act constitutes a repudiation of the employment contract and therefore a dispute of right. Held that the dispute in casu manifestly related to training and the employees conditions of service and was a dispute of right. Held further: There can be no doubt that, where there is a dispute of right that relates to training, it is possible to have conduct by an employer that can be described as unfair conduct or as an unfair labour practice as contemplated by item 2(1)(b). Such a dispute would be arbitrable in terms of item 3(4) of schedule 7 and the CCMA would have jurisdiction to arbitrate it if there was no council with jurisdiction to arbitrate it.
Retrenchment
If the reason for a dismissal is to compel employees to accept a demand in respect of a matter of mutual interest between the employer and employees, such a dismissal is deemed to be automatically unfair [32] Having regard to the facts, and the circumstances, of this case, it appears that the [employer] dismissed the unions 58 members for the reason that it wanted to compel them to accept its demand for a reduction in wage levels. In the Courts view, the [employer] fell foul of s187(1)(c) of the [LRA]. Held that the employer had used outsourcing as a device, for undermining the status of the union as the exclusive recognised collective bargaining agent of its members, the dismissed employees. Concluded that the dismissal of the employees was automatically unfair
Case law sited
SA Democratic Teachers Union v Minister of Education & others (2001) 22 ILJ 2325 (LC) and referring to ECCAWUSA & others v Shoprite Checkers t/a OK Krugersdorp (2000) 21 ILJ 1347 (LC),
Such changes are justified if they are made in the course of a bona fide retrenchment exercise and as an alternative to retrenchment
were told would be provided
J846/2017
Imatu obo Nathan v Polokwane Local Municipality (J846/2017) [2019] ZALCJHB 290; (2020) 41 ILJ 937 (LC) (18 October 2019)
[77] As emphasised in Fleet Africa, section 158(1A) does not require that a dispute should have been referred to a council/the CCMA or the Labour Court.
[75] In the circumstances, the agreement reached on 24 January 2017 complied with the common law requirements of a valid contract, and I now turn to the statutory requirements to make a settlement agreement an order of this Court.
[53] Section 158(1)(c) of the LRA provides that this Court may make a settlement agreement an order of court if certain requirements are met. These requirements are set out in section 158(1A), namely, there should be a) a written agreement, b) in settlement of a dispute, c) that a party has the right to refer to arbitration or to the Labour Court, but d) excluding disputes contemplated in sections 22(4), 74(4) or 75(7) of the LRA. Sections 22(4), 74(4) and 75(7) of the LRA deal with organizational rights disputes, disputes in essential services, and disputes in maintenance services respectively. The applicants dispute does not concern any of these categories of dispute.
Fleet Africa (Pty) Ltd v Nijs (2017) 38 1059 (LAC) at para 20.
Fleet Africa referred with approval to its decision in Universal Church of the Kingdom of God v Myeni and Others (2015) 36 ILJ 2832 (LAC) at para 44.
It is settled law that the intention of the parties in any agreement express or tacit is determined from the language used by the parties in the agreement or from their conduct in relation thereto. Further, not every agreement constitutes a contract. For a valid contract to exist, each party needs to have a serious and deliberate intention to contract or to be legally bound by the agreement, the animus contrahendi. The parties must also be ad idem (or have a meeting of minds) as to the terms of the agreement. Obviously, absent the animus contrahendi between the parties or from either of them, no contractual obligations can be said to exist and be capable of legal enforcement.
[56] The statutory requirements are that the agreement a) must be in writing, b) must settle a dispute and c) this dispute must be one which a party has the right to refer to arbitration or the Labour Court (excluding organizational rights, essential services and maintenance services disputes). The requirement is not that the dispute has been referred to arbitration or the Labour Court simply that the nature of the dispute is one which a party could refer to arbitration or to the Labour Court.
De Wet & Van Wyk Kontraktereg & Handelsreg Vyfde Uitgawe, p170.
[73] A repudiation does not dissolve the contract. It grants the innocent party two options, namely to either accept the breach and sue for damages, or to hold the repudiator to the contract. If the innocent party rejects the repudiation and holds the repudiator to the contract, the contract and the obligations created by it remain intact.
JA112/2013
City of Johannesburg Metropolitan Municipality and Others v Independent Municipal and Allied Trade Union and Others (JA112/2013) [2017] ZALAC 43; (2017) 38 ILJ 2695 (LAC) (28 June 2017)
This is a principle that was developed in Royal British Bank v Turquand [1856] EngR 470; (1856) 6 E & B 327; 1843-60 ALL ER 435, which provides that persons contracting with a company and dealing in good faith may assume that acts within its constitution and powers have been properly and duly performed and are not bound to enquire whether acts of internal management had been regular- per Lord Simons in Morris v Kanssen 1946 AC 459 at 474; (1946) 1 ALL ER 586 (HL) at 592 approving the formulation of the rule in Halsburys Laws of England 2ed vol 5 432 para 698.
See NBS Bank Ltd v Cape Produce Co (Pty) Ltd and Others 2002 (1) SA 396 (SCA) para 2; Northern Metropolitan Local Council v Company Unique Finance (Pty) Ltd and Others 2012 (5) SA 323 (SCA) para 28.
ostensible authority to bind SALGA in concluding the settlement agreement it was incumbent upon IMATU to prove the following: (a) a representation in words of conduct; (b) made by SALGA that either, or any, or all of those persons had the authority in respect of the settlement, to act as they, respectively, or jointly, did; (c) a representation in a form such that SALGA should have reasonably expected that outsiders would act on the strength of it; (d) reliance by IMATU on such representation; (e) the reasonableness of such reliance; and (f) the consequent prejudice to IMATU.
[71] ...the Turquand rule finds no application.[20] The rule does not entitle a third party to assume that SALGA has in fact entered into the settlement agreement. The respondents did not show that Messrs Dlamini and/or Van Zyl had actual authority in terms of SALGAs constitution to enter into the settlement agreement.
JR249/2015
A C and C South Africa (Pty) Ltd t/a African Camp and Catering v Nkadimeng NO and Others (JR249/2015) [2017] ZALCJHB 283 (8 August 2017)
Universal Church of the Kingdom of God v Myeni and Others (2015) 36 ILJ 2832 (LAC); [2015] 9 BLLR 918 (LAC); [2015] JOL 33521 (LAC); at para 44
It is settled law that the intention of the parties in any agreement - express or tacit - is determined from the language used by the parties in the agreement or from their conduct in relation thereto. Further, that not every agreement constitutes a contract. For a valid contract to exist, each party needs to have a serious and deliberate intention to contract or to be legally bound by the agreement, theanimus contrahendi. The parties must also be ad idem (or have the meeting of the minds) as to the terms of the agreement. Obviously, absent theanimus contrahendibetween the parties or from either of them, no contractual obligations can be said to exist and be capable of legal enforcement.
JS644/15
Food and Allied Workers Union and Others v Amalgated Beverage Industries (Pty) Ltd (JS644/15) [2017] ZALCJHB 492 (20 April 2017)
unreasonably refusing with prejudice settlement offer equivalent to maximum compensation...applicants therefore not entitled to costs
NOT
PA10/09
Volkswagen v Koorts
