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does not apply where the Prescription Act applies, as was the case in this matter. The rule only applies to applications for review.
CA9/05
Solidarity & Others v Eskom Holdings Ltd
J 998 / 2022
AFMS GROUP (PTY) LTD vs SOUTH AFRICAN AIRWAYS (SOC) LTD
[57]...The new service provider would in fact step into the shoes of AFMS, seamlessly taking over the providing of the same services, using the systems of SAA to manage the same. Even though it is true that AFMS did not use the assets or infrastructure of SAA to provide the services, and rather provides the services on such assets or infrastructure, this factor in itself, considering all else, is insufficient to dispel the application of section 197 in this case
J 737/22
Slo Jo Innovation (Pty) Ltd v Beedle and Another (J 737/22) [2022] ZALCJHB 212 (10 August 2022)
[37] A restraint of trade agreement concluded between an employer and employee and included in a contract of employment, is transferable under section 197 of the LRA.
JS 633/18
Yeko v Red Mining South Deep (PTY) LTD (JS 633/18) [2022] ZALCJHB 74 (22 March 2022)
[15] This is not a case where section 197 of the LRA could have been employed. Red Mining lost a contract. It did not transfer its rail contract to Flint as a going concern. Of course, Flint was not obliged to take Yeko into employment once it was awarded the rail contract. There seems to be a lacuna in the LRA. In my view, technically Flint took over the business or service of Red Mining. Unfortunately, section 197(1) defines transfer to mean the transfer of a business by one employer (old employer) to another employer (the new employer). I have no doubt in my mind that the rail contract is a business or service. However, it moved from the hands of Red Mining not by a typical transfer but by Red Mining losing a contract that employed Yeko and others. Actually, where short term services vacillate from one business to another by way of tenders being won and lost, such, in my considered view, is not materially different from one business selling its business or part thereof to another business. If section 197 were to be expanded to situations, where a client awards a business or service to another company, much to the chagrin of another company, social justice will, in my view, be served. One of the stated purposes of the LRA, in section 1, is, amongst others to advance economic development and social justice. The purpose of section 197 is to protect individual contracts of employment and ultimately job security. A lacuna I spot creates an opportunity for companies like Gold Fields joint venture to weaken the job security of employees. At the end of the day, Gold Fields is the consumer of the services on the rail maintenance. It is the main benefactor. The fact that it can use companies through a tendering system to achieve its labour needs, without it being affected, as an old or new employer is worrying. It is no different to the labour brokerage situation in substance. They only differ in form. In fact, there was nothing to have prevented Gold Fields to directly hire Yeko and others to work on the rail maintenance or upgrade, even if it is for a limited duration. Section 198B (3) of the LRA makes provision for a limited duration employment. The fact that Gold Fields opted for outsourcing, places it on the same footing as temporary employment services situation. This Court is acutely aware of the raging debate that the so-called second-generation outsourcing being brought under the wing of section 197 somewhat stifles outsourcing as a legitimate business method. However, it may be ideal for the legislature to find means and ways to curb the apparent defeat of the LRA.
JS 229/2020
Chauke v Imperial Managed Solutions SA (JS 229/2020) [2022] ZALCJHB 43 (11 March 2022)
[6] For reasons that are not apparent, the applicants representative elected to file a claim to the effect that the applicant had been unfairly retrenched, and limited the scope of the enquiry to the application of section 189. This requires the court to determine the substantive and procedural fairness of the applicants dismissal on account of Imperials operational requirements. Section 197 does not preclude either the transferee or transferor employer from dismissing an employee, pre- or post-transfer, by reason of operational requirements. Clause 4.1.3 of the section 197 agreement referred to above means no more than that for the purposes of section 197, the applicants employment would be transferred to Imperial on the same terms and conditions. It remains open to Imperial, as it did, to dismiss for operational requirements within the protections established by section 189. The LRA provides further, specific protection to employees whose employment is transferred in terms of section 197 in the form of section 187 (g), which provides that if the reason for dismissal is a transfer, or a reason related to a transfer, contemplated by section 197, the dismissal is automatically unfair. That formulation is broad in scope and permit scrutiny of any causal connection between the transfer and the dismissal that might exist. Obviously, a claim of automatically unfair dismissal in these circumstances must be pleaded, as must the case for causation that the applicant asserts. The categorisation of the present claim as one concerning a dismissal on account of operational requirements necessarily limits the scope of the courts enquiry, as I have indicated, to a determination of the substantive and procedural fairness of the applicants dismissal.
[10] In the circumstances, I am satisfied that Imperial engaged in a meaningful joint consensus-seeking process, in good faith, to honestly explore the prospects of an alternative to the applicants retrenchment, and that the requirements of procedural fairness have been satisfied.
J 464/20
Comunication Workers Union v Mobile Telephone Networks South Africa (MTN SA) (J 464/20) [2020] ZALCJHB 170 (1 June 2020)
[30] The Applicants reliance on section 197(6) is misplaced. The Applicant does not have a right to consult or to negotiate or to request information in a section 197 transfer process where there is no agreement as contemplated in section 197(6), of which there is none in casu. In fact, it was conceded by Mr Ndlovu that section 197(6) finds no application in this matter.
J203/16
Baloi and Another v Maddox Adams Intrenational South Africa (Pty) Ltd (J203/16) [2018] ZALCJHB 264 (15 August 2018)
Hydro Colour Inks (Pty) Ltd v CEPPWAWU [2011] 7 BLLR 637 (LAC) at para 17.
I have already mentioned that the fact that Keep Inks is insolvent is common cause. Section 197A in so far as it states that the new employer is automatically substituted in the place of the old employer in all contracts of employment in existence immediately before the old employer's winding-up or sequestration finds application. It must be emphasised that the automatic substitution only relates to all "contracts of employment" in existence immediately before the old employer's winding-up or sequestration. This means that the new employer takes no responsibility for the actions of the old employer. By way of an example, any wrongful dismissal by the old employer remains a matter for the old employer.
J1598/16
Sodexo Southern Africa (Pty) Ltd v Servest (Pty) Ltd and Others (J1598/16) [2018] ZALCJHB 177 (11 May 2018)
See Aviation Union of SA and Another v SA Airways (Pty) Ltd and Others (2011) 32 ILJ 2861 (CC) (SAA).
[16] It is by now well established that whether there has been a transfer of a business as a going concern for purposes of section 197 is a matter of fact, to be determined objectively. This necessarily involves an enquiry into (1) the existence of a transfer from one employer to another, (2) whether there was a transfer of a business (is there an economic entity capable of being transferred?) and (3) whether the business is transferred as a going concern (does the economic entity that is transferred retain its identity after transfer?).
JA122/2017
Imvula Quality Protection (Pty) Ltd and Others v University of South Africa (JA122/2017) [2018] ZALAC 33; [2018] 12 BLLR 1151 (LAC) (25 September 2018)
This arrangement cannot be said to fall within the meaning of a transfer of a business as a going concern, as contemplated by s 197 of the LRA.
JA47/2017
Spar Group Limited v Sea Spirit Trading 162 CC t/a Paledi and Others (JA47/2017) [2018] ZALAC 15; (2018) 39 ILJ 1990 (LAC); [2018] 10 BLLR 1000 (LAC) (7 June 2018)
A creditor perfecting a notarial bond over movable property of its debtor normally does not intend to acquire responsibility for conducting the business of the debtor for the purpose of making profits on an ongoing basis...Requiring a creditor perfecting a notarial bond to assume responsibility for the employment contracts of the debtor will render this form of security unduly burdensome and less effective. Although the appellant assumed responsibility for conducting the business of the corporations, it did so temporarily with the limited purpose of recovering its debt.
20] The present situation bears resemblance, in a limited respect, to a change in shareholders through the sale of shares, where the new shareholder gains control of a business, but the business (i.e. the employer) remains intact and does not transfer to the new shareholder. In such cases control or responsibility for the business may be shifted, but the legal identity of the employer remains the same, as do the contractual relationships between the employer and employees. Section 197 of the LRA does not apply in these circumstances.[8] 21] The Labour Court therefore erred in finding there was a transfer of business and that section 197 of the LRA was applicable in these circumstances.
JR350/16
Letsogo v Department of Economy and Enterprise Development and Others (JR350/16) [2018] ZALCJHB 48 (9 January 2018)
Ga-Segonyana Local Municipality v Venter N.O. and Others (JR961/13) [2016] ZALCJHB 391; (11 October 2016).
City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC), in further reference to Aries v CCMA and others (2006) 27 ILJ 2324 (LC).
held that the overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employers decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employers decision not to promote; whether the employers decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive. [21] Central to appointments or promotion of employees is the principle that that courts and commissioner alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions
City of Cape Town v SA Municipal Workers Union obo Sylvester and Others (C1148/2010) [2012] ZALCCT 40; [2013] 3 BLLR 267 (LC); (2013) 34 ILJ 1156 (LC) (7 September 2012).
the court expressly rejected the notion that the employer has the prerogative to decide who to appoint and that it should not be questioned when it exercises that discretion. The court stated that the proper yardstick was fairness to both parties.
CA11/2016
High Rustenberg Estate (Pty) Ltd v NEHAWU obo Cornelius and Others (CA11/2016) [2017] ZALAC 20; (2017) 38 ILJ 1758 (LAC) (23 March 2017)
[21] ...The purpose of the initial order of this Court, was that because the new employer had not been heard, a stated case should be decided by the court a quo in circumstances where the appellant, being the new employer, would have an opportunity to present its case. If an attachment of property takes place, it does appear that the new employer has to be joined to such proceedings. However, the question of joinder cannot on its own trump the wording of s 197 (5) of the LRA, read in terms of its purpose, namely that if an award is binding on the old employer it is deemed to be binding on the new employer. The fact that the Labour Court substitutes the formulation of the award for the one which is set aside cannot detract from this conclusion, for, if it did, it would ultimately damage the very purpose of s 197, namely to protect employee rights in the context of a sale of a business as a going concern.
J435/17
Imvula Quality Protection and Others v University of South Africa (J435/17) [2017] ZALCJHB 310; [2017] 11 BLLR 1139 (LC); (2017) 38 ILJ 2763 (LC) (31 August 2017)
iMvula and Red Alert retain all of the other components that go to make up their respective businesses. They will be free to offer their services to other clients, and to deploy those employees not engaged by UNISA on other sites, should posts be available. The true position therefore is that the contracts for the provision of services concluded between UNISA and iMvula and Red Alert respectively have come to an end, and that no part of the infrastructure for the conducting of the business of providing a security service is to be transferred to UNISA. In those circumstances, UNISAs decision to insource in terms of the shared services model and the offers of employment consequently made to some of iMvula and Red Alerts staff does not trigger s 197.
Application of s 197 to insourcing of security services. Insourcing limited to the making of offers of employment to certain of the outgoing contractors employees. In terms of a shared services model, clients role after termination limited to employment, client not taking transfer of any business infrastructure. Third party to be appointed to provide management and infrastructure for security services. Held that there is no business that is the subject of any transfer and that s 197 thus not applicable.
National Health and Allied Workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC)
[52] What lies at the heart of disputes on transfers of businesses is a clash between, on the one hand, the employers interest in the profitability efficiency or survival of the business, or if need be its effect is of disposal of it, and the workers interest in job security and the right to freely choose an employer on the other hand[53] Section 197 . relieves the employers and the workers of some of the consequences that the common law visited on them. Its purpose is to protect the employment of the workers and to facilitate the sale of businesses as going concerns by enabling the new employer to take over the workers as well as other assets in certain circumstances. The section aims at minimising the tension and the result labour disputes that often arise from the sales of businesses and impact negatively on economic development and labour peace. In this sense, s 197 has a dual purpose, it facilitates the commercial transactions while at the same time protecting workers against job losses
[18] In essence, the court is required to determine whether UNISAs termination of its contracts with iMvula and Red Alert and its decision to employ the majority of their employees engaged on the contract, constitutes the transfer of a business as a going concern for the purposes of s 197.
J890/17
Tasima (Pty) Ltd v Road Traffic Management Corporation and Others (J890/17) [2017] ZALCJHB 198; (2017) 38 ILJ 2385 (LC) (25 May 2017)
COSAWU v Zikhethele Trade (Pty) Ltd
[T]he decisive criterion for determining whether there has been a transfer of an undertaking (read business) is whether, after the alleged transfer, the undertaking has retained its identity, so that employment in the undertaking is continued or resumed in the different hands of the transferee. In order to determine whether there has been a retention of identity it is necessary to examine all the facts relating both to the identity of the undertaking and the relevant transaction and assess their cumulative effect, looking at the substance, not at the form, of the arrangements. The mode or method of transfer is immaterial. The emphasis is on a comparison between the actual activities of and actual employment situation in an undertaking before and after the alleged transfer. Kelman v Care Contract Services [1995] ICR 260. What seems to be critical is the transfer of responsibility for the operation of the undertaking. Mummery Js conclusion in Kelman offers a salutary guideline. He said:
Kelman v Care Contract Services [1995] ICR 260.
The theme running through all the recent cases is the necessity of viewing the situation from an employment perspective, not from a perspective conditioned by principles of property, company or insolvency law. The crucial question is whether, taking a realistic view of the activities in which the employees are employed, there exists an economic entity which, despite changes, remains identifiable, though not necessarily identical, after the alleged transfer.
[31] But in South African law, no court including the highest court has made this distinction. In City Power the Constitutional Court specifically dealt with the question whether section 187 applies to a municipal entity. It found that it does. It also applied s 197 to organs of state or public authorities in Rural Maintenance and in NEHAWU v UCT. Interpreting the legislation with its purpose in mind, I can see no reason to create such a distinction now.
JS230/15
Du Plessis v Amic Trading (Pty) Ltd t/a Toy's R Us (JS230/15) [2017] ZALCJHB 196 (23 May 2017)
Van der Velde v Business & Design Software (Pty) Ltd & Another (2006) 27 ILJ 1738 (LC) at 1748-9[2008] ZALC 80; ; [2006] 10 BLLR 1004 (LC) at 1014-5.
In summary, and in an attempt to crystallise these views and to formulate a test that properly balances employer and worker interests, the legal position when an applicant claims that a dismissal is automatically unfair because the reason for dismissal was a transfer in terms of section 197 or a reason related to it, is this: the applicant must prove the existence of a dismissal and establish that the underlying transaction is one that falls within the ambit of section 197; the applicant must adduce some credible evidence that shows that the dismissal is causally connected to the transfer. This is an objective enquiry, to be conducted by reference to all of the relevant facts and circumstances. The proximity of the dismissal to the date of the transfer is a relevant but not determinative factor in this preliminary enquiry; if the applicant succeeds in discharging these evidentiary burdens, the employer must establish the true reason for dismissal, being a reason that is not automatically unfair; when the employer relies on a fair reason related to its operational requirements (or indeed any other potentially fair reason) as the true reason for dismissal, the Court must apply the two-stage test of factual and legal causation to determine whether the true reason for dismissal was the transfer itself, or a reason related to the employers operational requirements; the test for factual causation is a but for test would the dismissal have taken place but for the transfer? if the test for factual causation is satisfied, the test for legal causation must be applied. Here, the Court must determine whether the transfer is the main, dominant, proximate or most likely cause of the dismissal. This is an objective enquiry. The employers motive for the dismissal and how long before or after the transfer the employee was dismissed, are relevant but not determinative factors. if the reason for dismissal was not the transfer itself (because, for example, it was a dismissal effected in anticipation of a transfer and in response to the requirements of a potential purchaser of the business) the true reason may nonetheless be a reason related to the transfer; to answer this question (whether the reason was related to the transfer) the Court must determine whether the dismissal was used by the employer as a means to avoid its obligations under section 197. (This is an objective test, which requires the Court to evaluate any evidence adduced by the employer that the true reason for dismissal is one related to its operational requirements, and where the employers motive for the dismissal is only one of the factors that must be considered). if in this sense the employer used the dismissal to avoid it section 197 obligations, then the dismissal was related to the transfer; and if not, the reason for dismissal relates to the employers operational requirements, and the Court must apply section 188 read with section 189 of the LRA to determine the fairness of the dismissal.
J2718/2016
Fraser Alexander (Pty) Limited v Instasol Tailings (Pty) Limited and Others (J2718/2016) [2016] ZALCJHB 523 (5 December 2016)
(1) There must be the transfer, the whole or part of a business, as a going concern. The first element (the existence of a transfer) in circumstances such as the present is not controversial - the termination by a client of an agreement with one service provider and the conclusion of an agreement with another for the provision of similar services, is capable of constituting a transfer. In particular, the courts have held that the absence of a contractual nexus between the outgoing and incoming contractors does not preclude the application ofs 197... (2) In relation to the existence of a the whole or part of a busines... n economic entity , or an organised grouping of employees and assets facilitated the exercise of an economic activity. Although the ECJ has made clear that an entity cannot be reduced to the activity entrusted to it, the relevant UK regulations include a service provision change within the scope of what is contemplated as a business. In any event, as this court observed in Harsco, the definition of business in s 197(1) is broad, and it is difficult to conceive of an economic entity that would not comprise a business for the purposes of s197. Whether a business is transferred as a going concern is the subject of a multi-factoral enquiry established by Nehawu v University of Cape Town, and referred to below....(the ECJ in Spijkers v Gebroeders Benedick Abattoir v Alfred Benedik en Zonen BV [1986] 2 CMLR 286 (ECJ) where the ECJ held that the decisive criterion is whether the business concerned retains its identity after the transfer. That would be indicated, amongst other things, by the fact that the operation is actually continued or resumed by the new employer, with the same or similar activities.)...(Aviation Union of SA & another v SAA Airways (Pty) Ltd & others (2009) 30 ILJ 2849 (LAC) and National Education Health & Allied workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC))...
[37] In summary: Intasol will perform services at the same site and in doing so, it will carry on the same activity for the same client, Harmony. Intasol will utilise infrastructure provided by Harmony and previously utilised by the applicant. Intasol has engaged with certain of the applicants employees with a view to employing them on the same site, and it is open to employing at least 84 of the applicants employees on the same site to perform the same work but on different (less favourable) conditions of employment. For the above reasons, in my view, the termination by Harmony of its contracts with the applicant and the appointment of Intasol to provide the same services constitutes a change to the identity of the party who has had the conduct of activities to which an organised group of employees has been principally dedicated for a particular client. There is thus a transfer of a business as a going concern for the purposes ofs 197of the LRA.
JS66/2009
National Union of Metalworkers of South Africa and Others v Niclotte (Edms) Beperk and Others (JS66/2009) [2016] ZALCJHB 170 (4 May 2016)
City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd and others
In essence, the approach adopted inNEHAWUfollows that of the European Court of Justicein the application of the Business Transfers Directive (2001/23/EC) which is applicable in the European Union, and dictates that a transfer must relate to an autonomous economic entity (defined to mean an organized group of persons and assets facilitating the pursuit of an economic activity that promotes a specific objective). In turn this involves a determination whether that entity retains its identity after the transfer; that is, the transferor must carry on the same or similar activities with the personnel and/or the business assets without substantial interruption...The question is whether the activities conducted by a party, such as first respondent, constitute a defined set of activities which represents an identifiable business undertaking so that when a termination of an agreement between first respondent and appellant takes place, it can be said that this set of activities, which constitutes a discrete business undertaking, has now been taken over by another party
Unitrans
To the extent that the contractual right to provide warehousing services now vests in TMS, the same assets are used to provide those services and the activities conducted at Nampaks behest are substantially the same as those performed by the first applicant prior to 1 February, the business performed by the first applicant has transferred as a going concern to TMS.
[80]The Court inUnitransaccepted that a change in service providers triggered the application of section 197 in circumstances where the incoming contractor is permitted the right of use of infrastructural assets owned by the client necessary for the purpose of continuing the relevant service.
Sodexo Southern Africa (Pty) Ltd v Olives and Plates Foods 2 (Pty) Ltd and Others (J389/16) [2016] ZALCJHB 136 (29 March 2016)
The catering services provided at the Multichoice restaurants and coffee shops is an economic entity and constitutes a service for purposes of section 197(1)(a).
Where Olives acquired the right of use of the infrastructural assets and where it will provide the same service from the same premises the business was transferred as a going concern and it falls within the ambit of section 197.
SeeAviation Union of SA and another v SA Airways (Pty) Ltd and others (2011) 32 ILJ 2861 (CC), Franmann Services (Pty) Ltd v Simba (Pty) Ltd and another(2013) 34 ILJ 897 (LC), Aviation Union of SA and another v SA Airways (Pty) Ltd and others (Aviation) (2011) 32 ILJ 2861 (CC) at paragraph 71, TMS Group Industrial Services (Pty) Ltd v Unitrans Supply Chain Solutions (Pty) Ltd and others (2015) 36 ILJ 197 (LAC) at paragraphs 25 and 26, City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd and others (2014) 35 ILJ 2757 (LAC), TMS Group Industrial Services (Pty) Ltd v Unitrans Supply Chain Solutions (Pty) Ltd and others (2015) 36 ILJ 197 (LAC).
MALUTI-A-PHOFUNG LOCAL MUNICIPALITY
Court of Appeal in P and O Trans-European Limited v Initial Transport Services Limited
to determine whether the conditions for the transfer of an economic entity are satisfied, it is also necessary to consider all the factual circumstances characterising the transaction in question, including in particular the type of undertaking or business involved, whether or not its tangible assets such as buildings and movable property are transferred, the value of its intangible assets at the time of the transfer, whetehr or not the core of its employees are taken over by the new employer, whether or not its customers are transferred, the degree of similarity between the activities carried on before and after the transfer, and the period, if any, for which those activities were suspended. These are, however, merely single factors in the overall assessment which must be made, and cannot therefore be considered in isolation (see in particular Spijkers paragraph 13 and Szen paragraph 14).[14] See also Wynn-Evans The Law of TUPE Transfers (Oxford University Press 2013) at 41-44.
In support of his submission on this point, MrVan der Merwemade reference to a number of cases, includingSACCAWU v Shoprite Checkers(Pty)Limited[1997] 10 BLLR 1360 (LC)[also reported at[1998] JOL 1686(LC)Ed];Hultzer v Standard Bank of South Africa[1999] 8 BLLR 809 (LC)[also reported at[1999] JOL 4896(LC)Ed] andUniversity of the Western Cape Academic Staff Union and others v University of the Western Cape(1999) 20 ILJ 1300 (LC). The principle established in these cases is one that inclines this Court to avoid granting what amounts to status quo relief in unfair dismissal disputes pending a final determination of the dispute by the appropriate dispute resolution body. None of these cases, it seems to me, establishes that financial hardship and loss of income can never be grounds for urgency. If an applicant is able to demonstrate detrimental consequences that may not be capable of being addressed in due course and if an applicant is able to demonstrate that he or she will suffer undue hardship if the court were to refuse to come to his or her assistance on an urgent basis, I fail to appreciate why this Court should not be entitled to exercise a discretion and grant urgent relief in appropriate circumstances. Each case must of course be assessed on its own merits.
performed the services previously provided by Interaction in the form of a call centre. Services were rendered to the same category of clients and the main business objective remained exactly as it had during the duration of the agreement. The same operational methods of rendering services were pursued by MTN. Furthermore, MTN took over a significant part of Interactions former employees together with a significant number of agents, all of whom were assigned to provide a necessary service.
Sufficient to fall within the scope of s 197 of the LRA.
Court holding that transferee party had a clear and substantial interest in the matter and had to be joined.
An alleged employer who had not been part of conciliation proceedings with dismissed employees. s 197(9) transfer, the old and new employers were jointly and severally liable in respect of any claim concerning any term or condition of employment that arose prior to the transfer and s 197(2)(a) provided that the new employer was automatically substituted in the place of the old employer in respect of all contracts of employment in existence immediately before the date of transfer.
Label of section 197A in contract not significant when all the indications were to the contrary.
Operation services constituted a discrete business; assets and infrastructure in order to continue to provide the same service; services could only be performed at the production facility; make use of the same equipment and IT systems
Aviation Union of South Africa and Another v South African Airways (Pty) Ltd and Others 2012 (1) SA 321 (CC).
(JS 574/2011) [2013] ZALCJHB 160
Suraci v Master Business Associates Holdings (Pty) Ltd
Two questions had to be answered: Did the transaction create rights and obligations that required one entity to transfer something in favor of/or for the benefit of another or to another? If the answer was in the affirmative, then the question was whether the obligation imposed within the transaction contemplated a transferor who had the obligation to effect a transfer or allow a transfer to happen and a transferee who received the transfer. This was notthe equivalent situation to that of an outsourcing agreement.
PA 08/10
PE Pack 4100CC v Sanders and Others
City Power had stated its clear intention that it would take over all of the services rendered by the applicant in terms of the service agreements.
Transfer test
only contracts of employment transferred
not wrongful dismissal
JA48/07; 77/09
Hydro Colours Inks (Pty) Ltd v Chemical, Energy, Paper, Printing, Wood and Allied Workers Union
failure to afford the employee an opportunity to make representations prior to the decision vitiated the transfer decision and the decision therefore was void, invalid and without legal effect.
took place despite its trading possibly having been interrupted for a limited period; factors that were relevant
National Education Health and Allied Workers Union v University of Cape Town & Others (2002) 23 ILJ 306 (LAC).[(2003) 24 ILJ 95 (CC).]
JA43/06
Ponties Panel Beaters Partnership v NUMSA & Others
took place despite its trading possibly having been interrupted for a limited period
SAMWU v Rand Airport Management Co Ltd [2005] 3 BLLR 241 (LAC)
there existed an economic entity which, despite changes, remained identifiable, though not necessarily identical, after the transfer
Services performed transferred to new contractors after a tender process
Some of assets used in performance of services transferred and majority of employees transferred
"from"-"by"
consider location, nature of business
Van der Velde v Business and Design Software (Pty) Ltd and Another (2006) 27 ILJ 1225 (LC), in which it was found that s 197 of the LRA created a statutory exception to the common law, in that if a business is transferred as a going concern, one employer was as a matter of law substituted for another, irrespective of the consent of the employee.
Outsourcing; not all outsourcing transactions covered by s 197
business: Discrete economic entity in the sense of an organized grouping of persons and assets facilitating the exercise of an economic activity which pursues an economic objective
without agreement of employees
197(6)
Transfer was the main dominant, proximate, likely cause of dismissal
Employee dismissed subsequent to transfer has to produce sufficient evidence to raise a credible possibility that an automatically unfair dismissal has taken place
Date on which the transaction is completed and the new employer takes unencumbered transfer of business
what happened to the goodwill of the business, the stock in trade, the premises, contracts with clients or customers, the workforce and the assets of the business; whether there has been an interruption of the operation of the business and, if so, its duration; and whether the same or similar activities are continued after the transfer.
[W]hat is transferred must be a business in operation so that the business remains the same but in different hands. This must be determined objectively in the light of the circumstances of each transaction.
JS546/05
CEPPWAWU & Others v Cordebo & Another
such as the transfer or otherwise assets, both tangible or intangible, whether or not workers are taken over by the new employer, whether customers are transferred and whether or not the same business has been carried on by the new employer.
no business entity on its own
197
Acquisition of all the shares of a company not triggering provisions of s 197
whether he was dismissed for an automatically unfair reason as listed in s 187(1)(g) of the LRA or whether he was dismissed for operational requirements; was not entitled to give him an ultimatum to accept alternative employment on less favorable terms or face dismissal; the employers failed to discharge the onus of establishing that the employee was dismissed for a reason other than the transfer of business and that it was an automatically unfair dismissal
two-phase transaction intrinsic to second generation contracting-out did constitute a transfer i.t.o. s 197
JA29/2021
National Union of Metalworkers of South Africa (NUMSA) and Others v AFGRI Animal Feeds (PTY) Ltd (JA29/2021) [2022] ZALCJHB 147 (17 June 2022)
[1] This appeal, with the leave of this Court, is against the judgment and order of the Labour Court (Mahosi J) delivered on 20 January 2021 which upheld a preliminary point raised by the respondent, Afgri Animal Feeds (Pty) Ltd. The Court found that the first appellant, the National Union of Metalworkers of South Africa (NUMSA) lacked the requisite locus standi to refer this matter and to represent the second to further appellants (the employees) in their unfair dismissal claim before the Labour Court in that they were employed in a sector which fell outside the scope of NUMSAs constitution. Costs were awarded against the appellants.
J256/19
Vodacom (Pty) Ltd and Others v National Association of South African Workers ('NASA') and Another (J256/19) [2019] ZALCJHB 49; (2019) 40 ILJ 1882 (LC) (4 March 2019)
Interdict unregistered union entering premises to communicate and meet with employees of contractor nature of rights infringed jurisdiction of court to entertain interdict concerning interference with property rights -requirements of final interdict met
[32] Therefore, as matters stand, the respondents cannot bypass the LRA mechanisms for achieving rights of access and convening meetings of members at the workplace of the employer by trying to directly enforce their constitutional rights to freedom of association and fair labour practices. Consequently, have no right to insist on access to the premises to communicate with Bidvest Services employees or to hold meetings with them on the premises
J1524/17
South African Chemical Workers' Union ('SACWU') and Another v Modise (J1524/17) [2017] ZALCJHB 265 (7 July 2017)
to interdict the unions general secretary from convening a purported meeting of the union labour court jurisdiction under s 158(1)(e)(i) confined to disputes about the interpretation and application of the constitution between union members and a union does not extend to a dispute between the union and an office bearer who is not a member
JS964/2015
Vermaak and Another v Sea Spirit Trading 162 CC t/a Paledi Super Spar and Others (JS964/2015) [2017] ZALCJHB 34; (2017) 38 ILJ 1411 (LC) (31 January 2017)
The question is: does the perfection of a notarial bond and consequent taking of possession of movable property to realise an indebtedness constitute a transfer of a business as a going concern as contemplated in section 197 of the LRA.
[70] In my view Spar did more that to act as a creditor seeking to secure and realise indebtedness to it. If Spar simply sought to secure and realise a debt, it could have taken control over the movable property of Paledi Super Spar and Paledi Tops and could have sold or dispose of the moveable property to realise the debt. Instead, Spar took not only control over the movable property, but also of the stores and operated the stores from 1 July 2015 until April 2016, when Spar sold the businesses as going concerns.
[74]Section 197 will be triggered if a business was transferred as a going concern. That means that a business in operation is transferred to remain the same but in different hands. The sale of a business is not required by section 197, nor is it required that the transfer be a long term or permanent one. In my view the intention of the parties or the reason why a business is transferred, is immaterial and irrelevant and play no role in the objective enquiry whether a transfer as contemplated in section 197 of the Act has taken place.
Van der Velde v Business and Design Software (Pty) Ltd (2006) 27 ILJ 1738 (LC) at 1148-1149
In summary, and in an attempt to crystallize these views and to formulate a test that properly balances employer H and worker interests, the legal position when an applicant claims that a dismissal is automatically unfair because the reason for dismissal was a transfer in terms of s 197 or a reason related to it, is this:
union was not formed and managed by employees to regulate their relations with employers, nor did it function as a trade union in accordance with its constitution;.
term genuine; that the Registrar does not enjoy a majoritarian gatekeeper role at the registration stage and that his refusal to register the union was a misinterpretation of his authority; registration of the union was ordered.
although registration was not a sine qua non for the separate juristic personality of a union registered unions enjoy various organisational rights which were critical to a unions viability and efficacy
C491/04
Workers Union of SA v Crouse, J N.O. & The Department of Labour
union had failed to cite the individual employees as co-applicants
union was entitled to refer the dispute in terms of s200(1) of the LRA and that the referral was valid
JS40/14
Truter v Heat Tech Geysers (Pty) Ltd (JS40/14) [2016] ZALCJHB 83 (2 March 2016)
JS 751 / 18
Smyth v Anglorand Securities Ltd (JS 751 / 18) [2022] ZALCJHB 72 (28 March 2022)
(TO WHO MAKING A DISCLSURE): [51] Next, when would the disclosure be a protected disclosure? In deciding this, the Court in Palace Group Investments (Pty) Ltd and Another v Mackie[(2014) 35 ILJ 973 (LAC) at para 15.] gave the following guidance: not all disclosures are protected in the sense of protecting the employee making the disclosure from being subjected to an occupational detriment by the employer implicated in the disclosure. A protected disclosure is defined as a disclosure made to the persons/bodies mentioned in ss 5, 6, 7, 8 and 9 and made in accordance with the provisions of each of such sections. In terms of s 6, for a disclosure to fall within the ambit of a protected disclosure it must have been made in good faith. It is clear that before other provisions of the PDA can come into play, the disclosure allegedly made must answer to the definition of that term as set out in the definitions section [52] Section 5 of the PDA provides that a disclosure made to a legal practitioner with the object of and in the course of obtaining legal advice is a protected disclosure. Section 6 provides for the disclosure to be made to the employer of the employee, and prescribes that the disclosure must be made in good faith and pursuant to the procedure prescribed by the employer for making such disclosure where such a procedure exists.[21] Sections 8(1)(a) and (b) provide for various prescribed bodies to which a protected disclosure can be made, namely the the Public Protector, South African Human Rights Commission, Commission for Gender Equality, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Public Service Commission and the Auditor-General, provided once again that the disclosure is made in good faith.[22] Section 8(1)(c) adds the further requirements that the employee must reasonably believe that the relevant impropriety falls within any description of matters which in the ordinary course are dealt with by that person or body concerned, and that the information and any allegation contained in the disclosure are substantially true.
[55] What the above prescribed structure for making disclosures shows is that there are different considerations applicable to determining whether a disclosure qualifies as a protected disclosure, depending upon the person or body to which the disclosure has been made. As held in Tshishonga supra:[Id at para 198.]The tests are graduated proportionately to the risks of making disclosure. Thus the lowest threshold is set for disclosures to a legal adviser. Higher standards have to be met once the disclosure goes beyond the employer. The most stringent requirements have to be met if the disclosure is made public or to bodies that are not prescribed, for example the media.
(good faith): [56] However, and what is clear from all these prescripts, save of course only where the disclosure is made to a legal representative for the purposes of seeking legal advice, is the core requirement of the existence of good faith when the disclosure is made. One must however be careful not to set the bar of good faith too high, as doing so may very well defeat the purposes of what the PDA seeks to achieve, as recognized in Radebe and Another v Premier, Free State Province and Others[(2012) 33 ILJ 2353 (LAC) at para 34.]. So, it is important to decide what would constitute good faith for the purposes of protection under the PDA, which I turn to next.
[57] First, good faith, or bona fides, depending how one wants to call it, goes hand in hand with the requirement of reason to believe that the information constitutes an impropriety as defined in section 1(1) of the PDA. As said in Radebe supra:[Id at para 33. See also Tshishonga (supra) at para 186.] If the employee believes that the information is true it would fortify the reasonableness of his belief from which, in turn, his bona fides can be inferred . The Court in Radebe gave the following instructive views as to how bona fides can be inferred:[] Whilst good faith and honesty may conceivably amount to the same thing, I am of the view that a case by case approach is the proper one for a court considering these issues. Factors such as reckless abandon, malice or the presence of an ulterior motive aimed at self advancement or revenge, for instance, would lead to a conclusion of lack of good faith. A clear indicator of lack of good faith is also where disingenuity is demonstrated by reliance on fabricated information or information known by the employee to be false. The absence of these elements on the other hand is a strong indicator that the employee honestly made the disclosure wishing for action to be taken to investigate it.The Court in Radebe concluded:[27]Simply stated if an employee discloses information in good faith and reasonably believes that the information disclosed shows or tends to show that improprieties were committed or continue to be committed then the disclosure is one that is protected. The requirement of 'reason to believe' cannot be equated to personal knowledge of the information disclosed. That would set so high a standard as to frustrate the operation of the PDA. [58] It is important to appreciate that it is not necessary for the purposes of establishing good faith that it be proven that information disclosed was correct or true.[28] By definition, and in making the disclosure, the employee must only have reason to believe, not that the information is actually true, but that the information shows or tends to show that the impropriety has been or is being or may be committed in the future.[29] In applying these concepts, the Court in Baxter v Minister of Justice and Correctional Services and Others[(2020) 41 ILJ 2553 (LAC) at para 67.] held: it is important to note that the PDA does not require that the disclosures made are factually correct. The phrase tends to show in s 1 of the PDA intends that it is sufficient if the information in the disclosure is indicative of an impropriety. Likewise, the requirement that the employee merely have a reason to believe that the information points to an irregularity does not require personal knowledge of the information disclosed. That would set too high a standard frustrating the operation of the PDA. Hearsay information, depending on its nature and cogency, may provide a basis for a reasonable belief of possible irregularity.[59] Also in the above context, the Court in John v Afrox Oxygen Ltd[(2018) 39 ILJ 1278 (LAC) at para 26. The Court was referring in the quoted passage to SA Municipal Workers Union National Fund v Arbuthnot (2014) 35 ILJ 2434 (LAC) at para 15. See also para 28 of the judgment in John v Afrox where it was held: In holding that the appellant should prove the correctness of the facts for existence of the belief in order to enjoy protection, the court a quo elevated the requirement of the reasonableness of the belief to one of the accuracy of the facts upon which the belief was based. This sets a higher standard than what is required by the PDA, and such a requirement would frustrate the operation of the PDA .] held: In Arbuthnot, the court held that the enquiry is not about the reasonableness of the information, but about the reasonableness of the belief. This is so because the requirement of reasonable belief does not entail demonstrating the correctness of the information, because a belief can still be reasonable even if the information turns out to be inaccurate.[60] The fact that the information concerned may be sensitive to an employer or possibly expose it to possible reputational harm, cannot serve to strip the employee from protection in terms of the PDA. This was appreciated in Potgieter v Tubatse Ferrochrome and Others[(2014) 35 ILJ 2419 (LAC) at para 31. See also State Information Technology Agency (Pty) Ltd v Sekgobela (2012) 33 ILJ 2374 (LAC) at para 31, where the Court accepted that the legitimacy of any disclosure does not depend on how it is treated by whoever it is made to.] where the Court held:While due regard must be paid to the reputational damage that an organization may suffer as a result of disclosure of adverse information which is prejudicial to its commercial interests, I am of the view that a finding that the mere disclosure of sensitive information renders the employment relationship intolerable would, in my view, seriously erode the very protection that the abovementioned legal framework seeks to grant to whistleblowers.
(the motives of the employee): [61] Whilst it may be important to consider the motives of the employee in making the disclose, it is not necessary for the motives of the employee in making the disclosure to be as pure as the driven snow. The fact that an employee may have some ulterior motives cannot of its own scupper good faith. I venture to say that where ulterior motives or personal aspirations of the employee form the driving force behind making the disclosure, and are coupled with elements like dishonesty, corruption, false statements, and retribution, that good faith will fall by the wayside.[See Arbuthnot (supra) at para 23. In Sekgobela (supra) at para 32, it was held that: an ulterior motive such as personal antagonism which might have been the predominant purpose for making the disclosure , was incompatible with good faith. In Ngobeni v Minister of Communications and Another (2014) 35 ILJ 2506 (LC) at para 54, the Court referred to factors such as lack of honest intention, malice, ulterior motive, a quest for revenge, reckless abandon, a quest for self or others advancement, and attempts to divert attention from one's or others' wrongdoing and involvement in criminal or acts of misconduct , as negating good faith.] In short, mixed motives are not incompatible with the existence of good faith as required by the PDA. This was recognized in Baxter supra, where the Court said:[34]In any event, the fact that the appellant may have acted partly out of ulterior motive does not mean that he did not act in good faith (or acted in bad faith) by making the disclosure. Good faith must be assessed contextually on a case-by-case basis, taking account of various factors at play in the specific case. Acting with an ulterior motive is not necessarily the same as acting in bad faith. Acting in bad faith in a strict sense refers to a dishonest intention or a corrupt motive. The information in the disclosures made by the appellant was in fact true in important respects. The appellant did not deceitfully manufacture information or unreasonably exaggerate the wrongdoing that had taken place. There were real problems with the manner in which appointments were being made in the region for which Nxele was responsible. The fact that the appellant acted with some personal animosity or spite is not alone sufficient to conclude that he did not act in good faith. His earlier attempts to challenge the decisions, while somewhat tentative, and perhaps self-serving, reveal that by the time he belatedly made the disclosures (some weeks after being threatened by Nxele) he had mixed motives. In the circumstances it cannot be said that the appellant did not make the disclosures in good faith. In the result, the disclosures he made were protected disclosures in terms of the PDA [62] I do accept that the PDA cannot serve as open licence to be abused by employees in order to hide or escape their own misconduct, performance issues or other forms of serious transgressions on their part.[See Tshishonga (supra) at para 170, where it was said: Employees also have to act in the employer's best interest, to observe its right to confidentiality, to be loyal and ultimately to preserve its viability, good name and reputation . Another example can be found in Legal Aid SA v Mayisela and Others (2019) 40 ILJ 1526 (LAC) at para 63, where it was held that where an employee threatens to report the employer to authorities, this threat does not constitute the disclosure of information as contemplated by the PDA.] That is why the motives of an employee would nonetheless always be an important consideration when deciding on the issue of good faith. As held in Lephoto supra:[] the PDA was not enacted to encourage employees, whose own conduct renders them liable to dismissal, to exploit this legislation in a desperate attempt to fend off the inevitable consequences of their own actions or performance. That the PDA should be interpreted generously in order to vindicate its purpose is one thing, but in a case such as the present, where the facts are overwhelmingly in support of the conclusion that its provisions were abused, the court should have no truck with an attempt to invoke its protection.
(what the employee requires to be done in making the disclosure): [63] A further consideration relevant in assessing whether good faith exists is what the employee requires to be done in making the disclosure. For example, where the employee asks that the wrong be further investigated, or remedied, or be addressed by a responsible authority, that would an indicator of the existence of good faith.[37] It is however not a stated purpose of the PDA to ensure that the subject matter of the disclosure made be investigated or dealt with, as the PDA rather centres around the protection of the employee for making the disclosure.[City of Tshwane Metropolitan Municipality v Engineering Council of SA and Another (2010) 31 ILJ 322 (SCA) at para 33.]
(section 9 of the PDA): [65] Good faith aside, where the disclosure is made to a third party, meaning a party other then one of the parties prescribed in sections 5, 6, 7 and 8 of the PDA, there are additional qualifying requirements under section 9 of the PDA, other than the general requirements of reasonable belief and good faith in making the disclosure, for it to be protected. In these cases, the employee must establish, in sequence, that: (1) the employee reasonably believed that the information was substantially true; (2) the disclosure was not made for the purposes of personal gain;[40] (3) at least one of the conditions in section 9(2) applies;[41] and (4) it was reasonable to have made the disclosure.[See Malan v Johannesburg Philharmonic Orchestra (JA 61/11) [2013] ZALAC 24 at para 29.][66] What is immediately evident from section 9 is that there is an enhanced and double requirement of reasonableness, so to speak. First, the employee must reasonably believe that the information is substantially true, which is a higher standard than the ordinary good faith requirement of a reasonable belief that the information is true. I venture to say that in order to establish a reasonable belief that the information is substantially true, the employee must show the existence of an objective justification for his or her belief that the information is true.[43] As said in Tshishonga supra:[44] Information of quality and quantity go to determining whether the disclosure is substantially true . Second, and even if the employee has a reasonable belief that the information is substantially true, the employee must also show that it was reasonable to have made the disclosure in the first place. Thus, it follows that the employee must provide reasonable justification as to why the disclosure could not have been dealt with internally in the employer, rather than the disclosure being made to a third party.[45] It is in this context that section 9(3) provides guidance, setting out a number of considerations that can be applied to determine whether it was reasonable to make the disclosure.
(information concerned is actually true, but with an ulterior or malicious motive): [67] Interestingly however, if it is shown that the information concerned is actually true, the fact that it may have been disclosed to such a third party with an ulterior or malicious motive, would not disqualify the disclosure from still being a protected disclosure. This was recognized in Tshishonga supra where the Court held:[]A malicious motive cannot disqualify the disclosure if the information is solid. If it did, the unwelcome consequence would be that a disclosure would be unprotected even if it benefits society. Such might be the case of an accountant who out of malice discloses to SARS that his employer is evading taxes. Or, an employee of a trade union who bears a grudge against its management might blow the whistle to the registrar of trade unions that the trade union is not complying with its constitution and the LRA. A malicious motive could affect the remedy awarded to the whistle-blower. ...[94] But even if some kind of malice or ulterior motive can be attributed to the applicant, this still does not assist the respondent. Where the information disclosed is actually true, which I believe was the case in this instance, then the issue of a motive becomes largely irrelevant.
(not make the disclosure as a quid pro quo for being promised some benefit, payment, advantage or other kind of reward): [68] Finally, and as to the requirement of personal gain, the employee must not make the disclosure as a quid pro quo for being promised some benefit, payment, advantage or other kind of reward. This obviously does not include a legally prescribed benefit or reward.[47] In other words, the employee must not be in it for the money, but rather with the altruistic motivation of exposing perpetrators of maleficence in the interest of society and / or victims of such unlawful conduct.
(occupational detriment and if there is more than one reason for a dismissal): [69] Once it has been established that the employee has made a disclosure of information which qualifies as a protected disclosure under the PDA, the next step is to then determine whether the employee has been visited with an occupational detriment by his or her employer as a result of or because of making such a protected disclosure.[48] This entails the application of a causation test. In TSB Sugar supra[Id at paras 94 95. See also Lowies v University of Johannesburg (2013) 34 ILJ 3232 (LC) at para 51] the Court dealt with this consideration as follows: The phrase on account of means owing to, by reason of or because of the fact that. The phrase is used to introduce the reason or explanation for something for the purposes of the present discussion, the reason or explanation for the occupational detriment. The word partly means not completely, not solely, not entirely or not fully. A finding that an employee was subjected to an occupational detriment on account of having made a protected disclosure will be based on a conclusion that the sole or predominant reason or explanation for the occupational detriment was the protected disclosure; whereas a finding that an employee was subjected to an occupational detriment partly on account of having made a protected disclosure will be to the effect that the protected disclosure was one of more than one reason for the occupational detriment.Section 3 of the PDA thus casts the net wide. If there is more than one reason for a dismissal, the PDA will be contravened if any one of the reasons for the dismissal is the employee having made a protected disclosure. The wide scope of protection is consistent with the purposes of the PDA which addresses important constitutional values and injunctions regarding clean government and effective public service delivery.
[70] The point is that once it is shown that the protected disclosure was the main reason why the employee was dismissed, it simply does not matter if the employees dismissal may have been justified for other secondary reasons, as the employer is, by virtue of the provisions of section 187(1) of the LRA, prohibited from offering any other substantive defence to the dismissal. This was made clear in Baxter supra[50] where the Court said:Section 187(1) of the LRA lists reasons for which employees may not be dismissed (including making a protected disclosure under the PDA) and categorises such dismissals as automatically unfair. If it is proved that the employee was dismissed for any of the reasons specified in s 187(1) of the LRA, the employer cannot raise a defence based on the alleged fairness of the dismissal. The employer cannot claim that a dismissal for a proscribed reason was necessary for any other secondary reason, even if it can be argued that the dismissal was effected for a permissible reason related to the employees conduct or capacity or the employers operational requirements.[71] In determining whether the protected disclosure was the main reason for the dismissal of the employee, the well-known causation test as enunciated in SA Chemical Workers Union and Others v Afrox Ltd[51] finds application. As held in Baxter supra:[52] there may be different reasons for dismissing an employee and an employer is entitled to argue that the reason for the dismissal was not for a reason proscribed by s 187(1) of the LRA but for a fair reason based on incapacity or misconduct. The question will then trigger a causation enquiry. The essential enquiry is whether the reason for the dismissal is one proscribed by s 187(1) of the LRA, in this case the one in s 187(1)(h) of the LRA which proscribes the dismissal of an employee for making a protected disclosure
(the but for test): [72] In simple terms, this causation test involves what is in essence a two-stage enquiry.[See Baxter (supra) at paras 60 and 84; Mashaba v Telkom SA (2018) 39 ILJ 1067 (LC) at para 34.] The first part of the enquiry is to determine whether the dismissal of the employee would have taken place even if the employee did not make the protected disclosure, or in other words, the but for test. If the answer to this is yes, then the dismissal cannot be automatically unfair, because the necessary causation between the protected disclosure and the dismissal is absent. However, if the answer is no, then the second stage of the enquiry must be applied, being a determination whether the disclosure was the dominant, main, proximate or most likely cause of the dismissal.[In Independent Municipal and Allied Trade Union and Another v City of Matlosana Local Municipality and Another (2014) 35 ILJ 2459 (LC) at para 77, the Court said: Thus, what I am required to establish is the proximate cause of the disciplinary enquiry. It is clear that a disciplinary enquiry against an employee need not necessarily be the direct result of a disclosure. I propose that a useful and practical approach is to consider factors such as (i) the timing of the disciplinary enquiry; (ii) the reasons given by the employer for taking the disciplinary steps; (iii) the nature of the disclosure; (iv) and the persons responsible within the employer for taking the decisions to institute charges. See also Gallocher (supra) at para 74.] If the answer to this question is yes, then the dismissal would be automatically unfair, and if no, it would not....[116] Firstly, and when applying the but for first part of the causation test, it can easily be said that if it was not for making the disclosure, the applicant would never have been disciplined, let alone dismissed...[119] There is however a piece of evidence by Carter that in my view goes a long way towards showing that but for the disclosure, the applicant would never have been disciplined. Carter testified that when he consulted Fluxmans about the disclosure, he was asked why did he not dismiss the applicant. It is in the context of this discussion that Carter was asked by Fluxmans to collect evidence and then provide it to Fluxmans, which in my view was a deliberate stratagem to bring about the dismissal of the applicant.
[114] In sum, I conclude that the disclosure made by the applicant to the FSB on 5 February 2018, as copied to both Carter and Ma, constituted a proper and legitimate protected disclosure as contemplated by the PDA. The information disclosed qualified as information contemplated by the PDA in section 1(1) thereof. The disclosure was made in circumstances where the applicant reasonably believed the information was substantially true (the information disclosed was in fact true). The applicants conduct in making the disclosure was in good faith, and pursuant to what he saw as his obligations under the relevant applicable regulatory provisions. And finally, when applying section 9(1), the applicant has satisfied the conditions in sections 9(2)(a) and (d), the applicant obtained no benefit from the disclosure, and it was reasonable to have made the disclosure in the first place. The following dictum from the judgment in City of Tshwane Metropolitan Municipality v Engineering Council of SA and Another[(2010) 31 ILJ 322 (SCA) at para 45.], where the Court accepted a protected disclosure had been made by the employee, can equally be applied to the conduct of the applicant in casu:The effect of these provisions is that the disclosure would be protected if Mr Weyers acted in good faith; reasonably believed that the information disclosed and the allegations made by him were substantially true; was not acting for personal gain and one or other of the conditions in s 9(2)(c) and (d) was satisfied. Mr Pauw rightly conceded that the first three requirements were satisfied. In the light of the evidence summarized earlier in this judgment he could do no less. It is plain that Mr Weyers was throughout painfully aware of his professional responsibilities and of the need to provide residents of Tshwane with a safe and reliable electricity supply. His concern about the dangers arising from appointing people who, after testing, he regarded as insufficiently skilled to undertake the onerous duties attaching to a system operator position shines through each document. His bona fides and his belief in the truth of what he was saying are apparent. As this case shows he made the disclosure at considerable personal cost and not for personal gain. He acted in the discharge of what he conceived, and had been advised, was his professional duty. The disclosure was made to parties that would manifestly be interested in such disclosure.
[121] Finally, was the protected disclosure the main, dominant or proximate cause of the dismissal of the applicant, considering all the other misconduct charges. Deciding this question does entail that the substance of the other charges must be considered. Obviously, it is not for this Court to decide if a dismissal based on the other misconduct charges would be substantively fair, as only the CCMA has that jurisdiction. The assessment of the substance of the other misconduct charges is done only in the context of deciding, and putting it as simply as possible, what was the most important reason for the applicant being dismissed.
J 1480/2021
NEHAWU obo N Phathela v Office of the Premier: Limpopo Provincial Government and Others (J 1480/2021) [2022] ZALCJHB 8 (7 February 2022)
[13] In the light of the above, this Court has no jurisdiction to grant the final order sought. The matter, if alleged to constitute an occupational detriment that arose as a result of a protected disclosure, will be deemed an unfair labour practice under section 4(2)(b) of the PDA. When read with section 191(13) of the LRA the matter must be referred to conciliation and a certificate of non-resolution must be issued before this Court can decide whether to grant the final relief sought. This is a jurisdictional prerequisite for this Court to determine an application for final relief that a disciplinary hearing constitutes a protected disclosure.
JS552/18
Josie v Amity International School and Another (JS552/18) [2021] ZALCJHB 441 (9 November 2021)
[57] Mrs. Josie has failed to prove that her dismissal is on account of her having made a protected disclosure. There is no evidence before this Court of a disclosure made in good faith by Mrs. Josie. Mrs. Josie failed to present any evidence whatsoever, regarding any bribery and corruption of Mrs. Kotze and other educators by Mrs. Mooloo or the Mooloo family. Her complaint therefore, does not fit into the definition of 'disclosure' as defined in the PDA. The evidence before this Court is that no contravention of any policy took place with regard to Miss Mooloo writing tests separately.
JS468/19
Kekana v Railway Safety Regulator (JS468/19) [2021] ZALCJHB 395 (13 October 2021)
[35]...When regard is had to the definition of a disclosure, five elements must exist, and those are: (a) disclosure of information, information being facts provided or learned about something or someone[10]; (b) the employee must believe that the disclosure is made in the public interest not self-serving interest; (c) if the employee hold such a belief, it must be held reasonably; (d) the employee must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) (g); and lastly (e) if the employee does hold such belief, it must be reasonably held.[11] The question whether all the five elements have been established, an evaluative judgment by the Court, in the light of all the facts of the case, is required. Often time this exercised is squared up with the reason to belief requirement as set out in the section.
[42] Therefore, this Court arrives at a conclusion that the first leg of the enquiry as suggested in TSB Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey[[2019] 40 ILJ 1224 (LAC).] has been satisfied. This Court is satisfied that Kekana made a disclosure to the CFO, Kgare, and the board member.
[48] In Qonde v Minister of Education, Science and Innovations and others[16], this Court stated that good faith means honesty or sincerity of an intention[17]. The conclusion this Court reaches is that Kekana was honest and sincere when he disclosed the information from 10 January 2018 up to and including 15 March 2018. Kekana only knew on 22 March 2018, literally few days after escalating the disclosures to the board, that he was to be disciplined.
[57] The test for determining the true reason for the dismissal was laid down in SACWU v Afrox Ltd[[1999] 20 ILJ 1718 (LAC)] and it is to first determine the factual causation by asking whether the dismissal would have occurred if Kekana had not make the protected disclosure. If the answer is yes, then the dismissal is 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 making of the disclosure was the main, dominant, proximate or the most likely cause of the dismissal.[Numsa and others v Aveng Trident Steel and another [2019] 40 ILJ 2024 (LAC) at Para 68 and Baxter supra at para 84.]
[61] In summary, for all the above reasons, this Court reaches a conclusion that Kekana made a protected disclosure and the real reason for his dismissal is that he made a protected disclosure.
J157/21
Pedlar v Performing Arts Council of Free State (J157/21) [2021] ZALCJHB 45 (24 March 2021)
[16] The referral in terms of section 188A(13) and the chairpersons ruling could not be the trigger for urgency. Had the applicant genuinely believed that the first respondent had caused him occupational detriment as envisaged in the Protected Disclosure Act, he could have sought relief when he was placed on precautionary suspension. This Court has on numerous occassions held that a party that approaches this Court on an urgent basis for an interdict at his leisure must be denied relief.[6] This is such a case as the urgency was clearly self created. For this reason alone, this application ought to be struck off the roll for lack of urgency.
DA1/2019
Baxter v Minister of Justice and Correctional Services and Others (DA1/2019) [2020] ZALAC 27; [2020] 10 BLLR 968 (LAC) ; (2020) 41 ILJ 2553 (LAC) (18 May 2020)
J1914/19
Luthuli v South African National Blood Service and Another (J1914/19) [2019] ZALCJHB 296 (30 October 2019)
[26.18]...The conduct the applicant complained of relates in essence to his own personal grievances that have evolved between him and the CEO over time since the latter took over. The definition of a protected disclosure is extremely wide, but it could not have been envisaged that it should cover personal grievances made against senior employees. To the extent that central to the applicants complaint in regards to the tip-offs is that the CEO interfered with the policy in that regard, whether that constituted an unlawful or criminal conduct is not for this Court to decide.
[26.19]...The strident language of the grievance is further a strong indication that the disclosure is not made good faith as required by the PDA, as what he seeks is to ensure that not only are his grievances dealt with, but that the CEO equally faces some consequences.
26.22 To the extent that the whistle-blowing procedures were not followed as conceded by the applicant, and further in the light of the views expressed in this judgment about whether the disclosures, if any were made, and also in good faith, it is doubted that on the face of it, there is causal link between the protected disclosures and the occupational detriment. In this regard, the applicant conceded that indeed he had recorded the EXCO meeting using his own mobile phone. If the respondents had reason to believe that the actions of the applicant constituted misconduct deserving an investigation, that is a matter within their prerogative.
Van Alphen v Rheinmetall Denel Munition (Pty) Ltd ([2013] 10 BLLR 1043 (LC); (2013) ILJ 34 3314 (LC) at para 22
26.15 It is further trite that the scheme of the PDA encourages internal procedures and remedies to be exhausted before the disclosure is made public.[17] In Alphen v Rheinmetall Denel Munition, it was further confirmed that the lodging of a grievance does indeed constitute an exercise of a right conferred by the LRA for the purposes of a claim of automatically unfair dismissal under section 187(1) of the LRA. This was because the act of lodging a grievance is merely an assertion of a right not to be treated unfairly, something which is guaranteed under the protection of fair labour practices enshrined in section 23(1) of the Constitution and section 185(b) of the LRA.[18]
Kabe v Nedbank Ltd (2018) 39 ILJ 1760 (LC) at para [29]
The grievances by the applicant do not meet the definition set out above (Definition of protected disclosure in Section 1 of the PDA). At a workplace, it is awaited that employees would be aggrieved now and then. It is for that reason that a good practice dictates that an employer should have in place a dedicated procedure to deal with employees grievances. Some grievances have merit whilst others do not. Regard being had to the preamble of the PDA, it was not enacted to allow employees to disparage their employers. Ordinarily, grievances are more about personal feelings of employees. The PDA is not intended to deal with personal feelings but with criminal and irregular conduct. It is largely concerned with more serious breaches of legal obligations.
J1485/2019
Gallocher v Social Housing Regulatory Authority and Another (J1485/2019) [2019] ZALCJHB 162; (2019) 40 ILJ 2723 (LC) (3 July 2019)
Matlosana Local Municipality supra
Thus, what I am required to establish is the 'proximate cause' of the disciplinary enquiry. It is clear that a disciplinary enquiry against an employee need not necessarily be the direct result of a disclosure. I propose that a useful and practical approach is to consider factors such as (i) the timing of the disciplinary enquiry; (ii) the reasons given by the employer for taking the disciplinary steps; (iii) the nature of the disclosure; (iv) and the persons responsible within the employer for taking the decisions to institute charges.
JS955/201
Ward v Oraclemed Health (Pty) Ltd (JS955/2016) [2018] ZALCJHB 309 (2 October 2018)
Radebe and Another v Premier Free State Province and Others [2012] 12 BLLR 1246 (LAC).
There is further, in my view, an overlap when determining whether the employee making the disclosure was acting in good faith and further whether he had the requisite reason to believe when making a disclosure that improprieties had been committed or were continuing. Honesty plays a pivotal role in both situations. Whilst good faith and honesty may conceivably amount to the same thing, I am of the view that a case by case approach is the proper one for a court considering these issues. Factors such as reckless abandon, malice or the presence of an ulterior motive aimed at self advancement or revenge, for instance, would lead to a conclusion of lack of good faith.[3](Own emphasis)
[20] During cross-examination it transpired that despite all the concerns that the applicant had, she was aware of the internal grievance procedure to be followed but she opted not to use one,
Kroukam v SA Airlink (Pty) Limited (2005) 12 BLLR 1172 (LAC), at para 28.
an evidentiary burden lies with such dismissed employee to show that there is a legitimate claim for automatically unfair dismissal
Govan v Skidmore[1952] 1 All SA 54 (N)
[27] In this matter, I must take into account that the test is one of balance of probabilities, in that a party whose version of facts appears to be more probable is entitled to an order, and that if there is an issue that has to be decided based on an inference, a court has to select a conclusion which seems to be the more natural, or plausible, conclusion from among several considerable ones, even though that conclusion be not the only reasonable one
SA Municipality Workers Union National Fund v Arbuthnot (2014) 25 ILJ 2434 (LAC), at para 15.
the respondent says the applicant acted mala fide as she presented the information to the FSB being motivated by being vindictive. I have to remind myself that the issue is about the reasonableness of the belief, not of the reasonableness of the information disclosed.
Mbethe v United Manganese of Kalahari (Pty) Limited (503/2016) [2017] ZASCA 67; 2017 (6) SA 409 (SCA) (30 May 2017).
good faith based on the state of mind using inference said,[20] In our law it would not be a matter of mere assertion by an applicant that he possesses the requirement of good faith. Although the test for good faith is subjective, relating as it does to the state of mind of an applicant, it is nevertheless subject to an objective control. The state of mind of an applicant has to be determined by drawing inferences from the objective facts, as revealed by the evidence.[21] The appellant states that he has acted in good faith in order to protect the interests of the respondent. The Respondent denies this and alleges that the appellant lacks an honest purpose in seeking leave to institute a derivative action in the name and on behalf of, the respondent. The dispute is whether the appellant has misrepresented his state of mind.
Communication Workers Union v Mobile Telephone Network (Pty) Ltd and another ZALC 59 (26 May 2003) (2003) ,24 ILJ 1670 (LC) (MTN) at para 21, where Van Niekerk AJ of this Court said: The disclosure must also be made in good faith. An employee who deliberately sets out to embarrass or harass an employer is not likely to satisfy the requirements of good faith. (Own emphasis)
However, as I have noted, the protection extended to employees by the PDA is not unconditional. The PDA sets the parameters of what constitutes a protected disclosure, as well as the manner of permissible disclosure by workers. The definition of disclosure clearly contemplates that it is only the disclosure of information that either discloses or tends to disclose forms of criminal or other misconduct that is the subject of protection under the PDA. The disclosure must also be made in good faith. An employee who deliberately sets out to embarrass or harass an employer is not likely to satisfy the requirement of good faith. It does not necessarily follow though that good faith requires proof of the validity of any concerns or suspicions that an employee may have, or even a belief that any wrongdoing has actually occurred. The purpose of the PDA would be undermined if genuine concerns or suspicions were not protected in an employment context even if they later proved to be unfounded. There is no doubt why disclosures made in general circumstances require in addition to good faith a reasonable belief in the substantial truth of the allegation. However more extensive the rights established by the PDA might be in the employment context, I do not consider that it was intended to protect what amounts to mere rumours or conjecture.
SA Municipality Workers Union National Fund v Arbuthnot (2014) 35 ILJ 2434 (LAC)
Good faith, in my view, entails in part that there should be no ulterior motive, revenge or malice in making the disclosure. It is common cause that the respondent did not claim protected disclosure at the disciplinary hearing and that her reliance on protected disclosure only surfaced for the first time during the proceedings before the Labour Court. The inference that the appellant wants this Court to draw is that the reliance on the protected nature of the disclosure was more of an afterthought, in an attempt to downplay the tendency of the respondent to disregard the employers instruction. [21]AndIn addition, it is also a requirement that the party making the disclosure intends thereby for the wrong disclosed to be remedied, or addressed, in some way.[22]
JA36/2018
National Institute for the Humanities and Social Sciences (NIHSS) v Lephoto and Another (JA36/2018) [2019] ZALAC 65; [2020] 3 BLLR 257 (LAC) (12 September 2019)
[6]...was a clear nexus between this disclosure and his dismissal which had resulted in an occupational detriment as defined in the PDA. ..[32]...first question that has to be answered in the affirmative in order for respondents case to be justified is whether there was a protected disclosure as defined in the PDA...[34] The key question in the present case is whether respondent had a reason to believe
[49]...However, the PDA was not enacted to encourage employees, whose own conduct renders them liable to dismissal, to exploit this legislation in a desperate attempt to fend of the inevitable consequences of their own actions or performance. That the PDA should be interpreted generously in order to vindicate its purpose is one thing, but in a case such as the present, where the facts are overwhelmingly in support of the conclusion that its provisions were abused, the court should have no truck with an attempt to invoke its protection.
JS557/12
Ndzuta v South African Police Services and Another (JS557/12) [2017] ZALCJHB 68 (23 February 2017)
Employee alleging unfair discrimination and occupational detriments as reasons for his dismissal ; evidence showing that employees allegation unfounded and based on hearsay; employee failing to prove that he suffered either occupational detriment or unfair discrimination. Evidence proving that employee unhappy to be managed by people less qualified than him. Employee failing to establish a causal link between the alleged disclosure and his dismissal. Employees claim dismissed.
Radebe and Another v Premier, Free State Province and Others (2012) 33 2353 (LAC) at paras 35 and 36.
[35] There is further, in my view, an overlap when determining whether the employee making the disclosure was acting in good faith and further whether he had the requisite reason to believe when making a disclosure that improprieties had been committed or were continuing. Honesty plays a pivotal role in both situations. Whilst good faith and honesty may conceivably amount to the same thing, I am of the view that a case by case approach is the proper one for a court considering these issues. Factors such as reckless abandon, malice or the presence of an ulterior motive aimed at self advancement or revenge, for instance, would lead to a conclusion of lack of good faith. A clear indicator of lack of good faith is also where disingenuity is demonstrated by reliance on fabricated information or information known by the employee to be false. The absence of these elements on the other hand is a strong indicator that the employee honestly made the disclosure wishing for action to be taken to investigate it.[36] Simply stated if an employee discloses information in good faith and reasonably believes that the information disclosed shows or tends to show that improprieties were committed or continue to be committed then the disclosure is one that is protected. The requirement of reason to believe cannot be equated to personal knowledge of the information disclosed. That would set so high a standard as to frustrate the operation of the PDA. Disclosure of hearsay and opinion would, depending on its reliability, be reasonable. A mistaken belief or one that is factually inaccurate can nevertheless be reasonable, unless the information is so inaccurate that no one can have any interest in its disclosure. (See also the statement in Babula (supra) at para 41 where it was held that: Darnton seems to me clear authority for the proposition that whilst an employee claiming the protection of ERA 1996, section 43(1) must have a reasonable belief that the information he is disclosing tends to show one of more of the matters listed in section 43B(1)(a) to (f), there is no requirement upon him to demonstrate that his belief is factually correct; or, to put the matter slightly differently, his belief may still be reasonable even though it turns out to be wrong.) If the primary or exclusive purpose of reporting is to embarrass or harass the employer the reasonableness of the employee's belief is also questionable. (Footnotes omitted)
Lephoto v National Institute for Humanities and Social Sciences and Another (JS274/16) [2017] ZALCJHB 442 (22 November 2017)
3. The first respondent, the National Institute for Humanities and Social Sciences, is ordered to pay the applicant 12 months compensation, an equivalent of 12 months salary subject to statutory deductions payable within 30 days from the date of this order.
Tshishonga v Minister of Justice and Constitutional Development and Another 2007 (4) SA 135 (LC); [2007] 28 ILJ 195 (LC) at para 176.
[176] The PDA is conceived as a four-staged process that begins with an analysis of the information to determine whether it is a disclosure. If it is, the next question is whether it is protected. The third stage is to determine whether the employee was subjected to any occupational detriment and lastly, what the remedy should be award for such treatment. It is not an enquiry into wrongdoing about whether the employee deserves protection. Structured in this way the inclination to shift the emphasis from the conduct and credibility of the wrongdoer to that of the whistle-blower is real.
Malan v Johannesburg Philharmonic Orchestra (JA61/11) [2013] ZALAC 24 (12 September 2013 at para 29.
There must be a disclosure; the disclosure must be made in good faith; the disclosure must concern an impropriety, either a criminal offence or that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject; it must be reasonable for the employee to make the disclosure; and, that one or more of the conditions referred to in subsection 9(2) must be satisfied for present purposes, any one of them is sufficient. Where the disclosure is made to the employer subsection (c) which is relevant for the present purposes provides that the employee making the disclosure must have previously made a disclosure of substantially the same nature to his or her employer.
CWU v Mobile Telephone Networks (Pty) Ltd (2003) 24 ILJ 1677 (LC) at para 21.
JS287/2012
Dorey v TSB Sugar RSA Ltd (JS287/2012) [2017] ZALCJHB 168 (3 May 2017)
Radebe and Another v Premier, Free State Province and Others [2012] (5) SA 100 (LAC); [2012] 33 ILJ 2353 (LAC); [2012] BLLR 1246 (LAC) at para 33
The phrase tends to show in section 1 cannot be equated to show. Had the legislature intended the approach propounded by the Labour Court, it would have used only the term show. The phrase tends to show properly interpreted means that the information in the disclosure conveyed a suggestion of an impropriety or conduct that may have taken place or might be continuing. I do not understand the provision itself to include a requirement that what is conveyed must be factually accurate or be the truth. If the employee believes that the information is true it would fortify the reasonableness of his belief from which, in turn, his bona fides can be inferred. (Footnote omitted.)
[35]In line withRadebeI need not concern myself with the truthfulness and or accuracy of the allegations.
City of Tshwane Metropolitan Municipality v Engineering Council of SA and Another(2010) 31 ILJ 322 (SCA) at para 42.
Having concluded that the applicant has made a disclosure, I need to determine whether such a disclosure wasbona fideor not.
General requirements for a disclosure to be protected: there had to be a disclosure; the disclosure had to be made in good faith; the disclosure had to concern an impropriety, either a criminal offence or that a person had failed, was failing or was likely to fail to comply with any legal obligation to which that person was subject; it had to be reasonable for the employee to make the disclosure; and, that one or more of the conditions referred to in s 9(2) had to be satisfied. Biut, Late or fractured payments to employees or service providers were not a serious impropriety. Dismissed.
protection
defined in terms of section 1 of LRA
Disclosure, it was not necessary for the applicant to show that there was an actual breach of a legal obligation, merely that heThese Summaries may not be copied or forwarded without permission from Siber Ink CChad reason to believe that the information showed or tended
acted in good faith and had a reasonable belief that much of the information was substantially true
. The employer referred to Sikhosana & Others v Sasol Synthetic Fuels ((2000)21 ILJ; [2002]1 BLLR 95(LAC)) and submitted that fair retrenchment did not entail a mechanical compliance with s 189 of the Act
reasonable inference that could be drawn was that Ms Pedzinsky was dismissed because of her protected disclosure. Held therefore that the decision to retrench was a sham and the dismissal automatically unfair
Prima facie right: Whether Disclosure made bona fide , Whether disclosures protected , Whether pending disciplinary linked to disclosure; Balance of convenience; Absence of alternative remedy ; occupational detriment
158(2)(a)
To Public prosecutor
Was disclosure, was protected and suffered occupational detriment
Protected
E/r duty to begin, exclude sec 5
JR483/14
Shongwe and Others v City of Johannesburg Metropolitan Municipality (JR483/14) [2016] ZALCJHB 67 (25 February 2016)
Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA)
As its name indicates, a plea of lis alibi pendens is based on the proposition that the dispute (lis) between the parties is being litigated elsewhere and therefore it is inappropriate for it to be litigated in the court in which the plea is raised. The policy underpinning it is that there should be a limit to the extent to which the same issue is litigated between the same parties and that it is desirable that there be finality in litigation. The courts are also concerned to avoid a situation where different courts pronounce on the same issue with the risk that they may reach differing conclusions. It is a plea that has been recognised by our courts for over 100 yearsAnd,The plea bears an affinity to the plea of res judicata, which is directed at achieving the same policy goals. Their close relationship is evident from the following passage fromVoet44.2.7:2'Exception of lis pendens also requires same persons, thing and cause.-The exception that a suit is already pending is quite akin to the exception of res judicata, inasmuch as, when a suit is pending before another judge, this exception is granted just so often as, and in all those cases in which after a suit has been ended there is room for the exception of res judicata in terms of what has already been said. Thus the suit must already have started to be mooted before another judge between the same persons, about the same matter and on the same cause, since the place where a judicial proceeding has once been taken up is also the place where it ought to be given its ending.'
In our common law the requirements for res iudicata are threefold: (a) same parties, (b) same cause of action, (c) same relief. The recognition of what has become known as issue estoppel did not dispense with this threefold requirement. But our courts have come to realise that rigid adherence to the requirements referred to in (b) and (c) may result in defeating the whole purpose of res iudicata. That purpose, so it has been stated, is to prevent the repetition of lawsuits between the same parties, the harassment of a defendant by a multiplicity of actions and the possibility of conflicting decisions by different courts on the same issue (see eg Evins v Shield Insurance Co Ltd1980 (2) SA 814 (A) at 835G). Issue estoppel therefore allows a court to dispense with the two requirements of same cause of action and same relief, where the same issue has been finally decided in previous litigation between the same parties
vast difference
J & L Lining (Pty) Ltd v National Union of Metalworkers of South Africa and Others (J 3424 / 18) [2018] ZALCJHB 409; (2019) 40 ILJ 1289 (LC) (10 December 2018)
Pikitup (SOC) Ltd v SA Municipal Workers Union on behalf of Members and Others
" the phrase 'any matter of mutual interest' defies precise definition. The phrase is couched in very wide terms. According to Grogan, the phrase is extremely wide, 'potentially encompassing issues of employment in general, not merely matters pertaining to wages and conditions of service. Grogan concludes, correctly in my view, that 'the best one can say, therefore, is that any matter which affects employees in the workplace, however indirectly, falls within the scope of the phrase ""matters of mutual interest"" and may accordingly form the subject matter of strike action'"
JR741/16
Emfuleni Local Municipality v South African Local Government Bargaining Council and Others (JR741/16) [2019] ZALCJHB 367 (11 November 2019)
They seek to remain in the same jobs, with the same responsibilities, but to be graded at a higher level, with the financial rewards that grading at a higher level will bring. In Polokwane Local Municipality v SALGBC & others [2008] ZALC 29; [2008] 8 BLLR 783 (LC), Molahlehi J regarded a dispute where an employee sought to have her post upgraded as a dispute of interest. In the absence of any right to be appointed to the higher position or to have the post upgraded, the dispute was not arbitrable (at paragraph 26).
In Mashegoane v University of the North [2007] ZALC 53; [1998] 1 BLLR 73 (LC), a dispute that concerned the refusal by the senate of the university to appoint a lecturer to the position of dean of the faculty, where the court considered that the appointment to the post of dean would be one that would considerably elevate the employees status and encompass a greater degree of responsibility. On this basis, the court held that the dispute properly concerned a promotion. In the present instance, the employees do not seek appointment to another post, and certainly not one that confers greater responsibility or status.
The employees may have a claim under the Employment Equity Act on the basis of equal pay for the same or similar work, or work of equal value. But that is not the claim that they referred to arbitration. Alternatively, the applicants may have the election to press their demand by resorting to the exercise of the right to strike. But this is not a matter that I need decide.
JA45/14
Monare v South African Tourism and Others
there was no jurisdictional dispute before the CCMA at any stag....office does not have a separate corporate personality. It is part and parcel of the first respondent, which is one undertaking. The fact that the office was in London does not make it a different undertaking.
Genrec Mei criterion held:When all the facts of this matter are considered and the question is asked as to where the undertaking was carried on in which the respondent worked, the answer would be an easy one, namely Malawi!
Astral, the court a quo in the present case reasoned and concluded as follows: In the present instance, there is no such residual nexus with the South African office. The first respondent may be South African and they may have worked for an entity whose head office is located in South Africa but he was recruited overseas, his employment contract was concluded overseas, he was obliged to work overseas for an agreed fixed term with no right to return to South Africa and continue employment there on conclusion of that fixed term and he performed services only in the United Kingdom. He committed the acts of misconduct that resulted in his dismissal in the United Kingdom, his disciplinary hearing was held there, and he was given notice of dismissal there. In my view, in these circumstances the LRA has no territorial application. It follows that the first respondent had no right to refer his dispute to the CCMA and the CCMA had no right to entertain it.
Independent Police Investigative Directorate and Robert McBride v The Minister of Police Case number 6588/2015.
Refusal of department to implement salary improvements as no funds had been allocated for this purpose
J2237/16
Incledon (Pty) Limited and Others v Slabbert and Others (J2237/16) [2017] ZALCJHB 164 (5 April 2017)
King Williams Town v Border Alliance Taxi Association 2002 (4) SA 152 (ECD)
[11] One of the fundamental rules of fairness that underlies the courts rules of procedure and evidence is that litigants should be warned in advance of points being taken against them. The very purpose of a letter of demand is to avoid litigation, amongst other things, by affording a party the opportunity to respond to all of the material allegations articulated in the demand....This is not to suggest that a response to a letter of demand ought to assume the particularity of a pleading what is required is at least that the material allegations made be addressed with sufficient particularity to enable an applicant to decide whether to take the next step of initiating litigation.
Other case law cited
Chirwa v Transnet Ltd and others 2008 (4) SA 367 (CC)
[t]he mere fact that Transnet is an organ of State which exercises public power does not transform its conduct in terminating the applicants employment contract into administrative action.
138/08
Kriel v The Legal Aid Board & Others
even if termination took place by organ of state exercising public power; not administrative action; other remedies available
J2305/16
National Regulator for Compulsory Specifications v Mazibuko (J2305/16) [2019] ZALCJHB 26 (20 February 2019)
Tulip Diamonds FZE v Minister for Justice and Constitutional Development and Others 2013(10 BCLR 1180 (CC) at para 27
[7] Locus standi means a right to prosecute. Under common law, this doctrine requires that a party must have a personal and direct interest in the matter before the court.[9] In terms of the Constitution[10] (a) anyone acting in their own interest and/or (d) anyone acting in the public interest, may approach a competent court asking for an order, if it is under the belief that its rights have been violated or threatened.
J2898/18
Betterbond (Pty) Ltd and Another v Smit and Another (J2898/18) [2018] ZALCJHB 318 (5 October 2018)
National Health Laboratory Service v Lloyd-Jansen van Vuuren [2015] ZASCA 20; 2015 (5) SA 426 (SCA) at paras 16 to 17.
[15] There is a presumption against novation because it involves a waiver of existing rights. When parties novate they intend to replace a valid contract with another valid contract. In determining whether novation has occurred, the intention to novate is never presumed. In Acacia Mines Ltd v Boshoff,[4] the court held that novation is essentially a question of intention.[16] In Proflour (Pty) Ltd & another v Grindrod Trading (Pty) Ltd t/a Atlas Trading and Shipping & another[5] the court, when determining whether the agreement resulted in a novation, referred to the decision of Electric Process Engraving and Stereo Co v Irwin 1940 AD 220 at 226-227 where the court said:The law on the subject was clearly enunciated as far back as 1880 in the well-known case of Ewers v The Resident Magistrate of Oudtshoorn and Another, (Foord) 32, where DE VILLIERS, C.J, said: The result of the authorities is that the question is one of intention and that, in the absence of any express declaration of the parties, the intention to effect a novation cannot be held to exist except by way of necessary inference from all the circumstances of the case. It follows that in order to establish whether novation has occurred, the court is entitled to have regard to the conduct of the parties, including any evidence relating to their intention.
J3093/18
Maluleke v Greater Giyani Local Municipality and Others (J3093/18) [2018] ZALCJHB 456; (2019) 40 ILJ 1061 (LC) (4 October 2018)
Administrator, Orange Free State v Mokopanele and Others (1920) 11 ILJ 963 AD at p 968.
before a party can be held to have surrendered his right, he must know of his right. A similar approach was adopted some four years later in Laws v Rutherford[1924 AD 261] where the Court held that before a waiver can be upheld, it must be demonstrated that the person who is alleged to have waived his or her right knew that he or she was waving her right. It logically follows then that in order to constitute waiver, the relevant conduct of the party alleged to have waived the right must be clearly inconsistent with the exercise of the right alleged to have been waived.
J34/2017
Nyamane v MEC: Free State Department of Health (J34/2017) [2018] ZALCJHB 455; [2019] 12 BLLR 1371 (LC) (31 August 2018)
has been confirmed that rationality and reasonableness are conceptually different
Albutt v Center for the Study of Violence and Reconciliation and others 2010 (3) SA 293 (CC).
The Executive has a wide discretion in selecting the means to achieve its constitutionally permissible objectives. Courts may not interfere with the means selected simply because they do not like them, or because there are other more appropriate means that could have been selected. But, where the decision is challenged on the grounds of rationality, courts are obliged to examine the means selected to determine whether they are related to the objective sought to be achieved. What must be stressed is that the purpose of the enquiry is to determine not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if, objectively speaking, they are not, they fall short of the standard demanded by the Constitution.
Minister of Defence and Military Veterans v Motau 2014 (8) BCLR 930 (CC)
[69] The principle of legality requires that every exercise of public power, including every executive act, be rational. For the exercise of public power to meet this standard it must be rationally related to the purpose for which the power was given
JR957/2014
Bidair Services (Pty) Ltd v Mbhele and Others (JR957/2014) [2016] ZALCJHB 161; (2016) 37 (ILJ) 1894 (LC) (27 January 2016)
the applicant expressly and unequivocally, unconditionally and unreservedly acquiesced in the Award when it offered Mashishi the alternative positions of baggage handler and cleaner
InNUMSA & others v Fast Freeze (1992) 13 ILJ 963 (LAC) at page 969.
'If a party to a judgment acquiesces therein, either expressly, or by some unequivocal act wholly inconsistent with an intention to contest it, his right of appeal is said to be perempted, ie he cannot thereafter change his mind and note an appeal. Peremtion is an example of the well-known principle that one may not approbate and reprobate, or, to use colloquial expressions, blow hot or cold, or have one's cake and eat it.'
nDabner v South African Railways & Harbours 1920 AD 583 at para 594.
'The rule with regard to peremption is well settled, and has been enunciated on several occasions by this Court. If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. And theonusof establishing that position is upon the party alleging it. In doubtful cases acquiescence, like waiver, must be held non-proven.'
JA118/13
Mahlakoane v South African Revenue Service (JA118/13) [2018] ZALAC 1 (25 January 2018)
those that the appellant was charged with in the first disciplinary hearing and those she was charged with in the second hearing, were clearly distinguishable from each other
BMW (SA) (Pty) Ltd v Van der Walt(2000) 21 ILJ 113 (LAC);Branford v Metro Rail Services (Durban) and Others(2003) 24 ILJ 2269 (LAC) and the helpful and insightful discussion of the topic in J Grogan Workplace Law(2007) pp 200-204.
has, as its heart, fairness and this rule or principle simply entails that an employee cannot, generally, be charged again with the same misconduct that he or she was either found guilty or not guilty of. However, there are instances where breaches of this rule or principle can be condoned. The paramount consideration, however, is fairness to both sides
The misconduct was of a very serious nature and involved calculated acts of dishonesty perpetrated by the appellant and Mr Setshedi. In those circumstances, the sanction of dismissal was clearly justified
Demarcation of "hire"
JS501/2021
WILLIAM STANLEY OWEN O'BRIENandHEAVEN SENT GOLD SOUT
[10] The submission on behalf of the respondent is that the applicant's claim, being a delict, arises not from a contract of employment but a breach settlement agreement. In amplification of the argument,...court to consider the five elements of delict
J569/22
National Education Health and Allied Workers Union v University of South Africa (J569/22) [2022] ZALCJHB 162 (21 June 2022)
Unlawful dismissal section 158(1)(a)(iv) of the LRA the Labour Court has no jurisdiction to declare the dismissal of employees unlawful.
section 77(3) of the BCEA breach of contract contractual terms sought to be vindicated must be plainly pleaded. Where the employer availed itself to its contractual right to terminate the contract of employment, a breach of contract claim by the employees is not justiciable under section 77(3) of the BCEA.
JS1037/2019
Maseko v South African Post Office (JS1037/2019) [2021] ZALCJHB 385 (20 October 2021)
[12] The Labour Appeal Court in dealing with the limited damages rule summarise the common law position in National Entitled Workers Union v CCMA:[(2007) 28 ILJ 1223 (LAC) para 15] ."Under common law the employer's position was very strong as against an employee. If an employee was dismissed lawfully, egg if he was given proper notice of termination of his contract of employment or if he was paid notice pay in lieu of notice, the employee had no remedy in law even if the employer had no reason to terminate the contract of employment or if the dismissal was very unfair. The courts could also not provide any remedy in that situation. If the contract of employment was terminated unlawfully, generally speaking, the only relief that the courts could provide such employee was to award the employee damages which would be equivalent to the notice pay he would have been paid in lieu of notice." (Own emphasis)
[13] This is authority for the proposition that as long as the employer gives contractual notice of termination, or pays wages in lieu of notice, there is no recognised claim in law. It goes further to say that even if the employment contract is unlawfully terminated as alleged by the applicant, the employee's remedy is limited to damages equal to what he would have earned during the contractual notice period.
[14] The Labour Court followed this reasoning in S A Music Rights Organisation Ltd v Mphatso:[(2009) 30 ILJ 2482 (LC) at para 17]" This approach reflects the conclusion that the purpose of damages for wrongful dismissal is only to protect the worker's interest in remuneration and benefits for the denied period of notice or the unexpired fixed term, and that its quantification is to be conducted on the assumption that the worker's pecuniary losses are limited to that remuneration and those benefits."
[15] However, in Harper v Morgan Guarantee Trust Co of New York, Johannesburg[2003 JOL 11932 (W) at para 5.2] the Court per Flemming DJP held as follows:"5.2.1 The principles are part also of our law. In Mustapha v Receiver of Revenue 1958 (3) SA 343 (A) at 358F it was said that in the case of a contract, a party's "reasons or motives for exercising an admitted right of cancellation of that contract are normally irrelevant". The result that the employee ends up with what he would have had if the employer had stayed within his legal right to terminate by notice was stated in Grundlingh v Beyers 1967 (2) SA 131 (W) at 142; Langeni v Minister of Health and Welfare 1988 (4) SA 93 (W) at 101C.5.2.2 If in a specific case the right to give notice may only be exercised within some limitation, it would be for the plaintiff to prove and therefore to plead such a term (Carr v Jockey Club of South Africa 1976 (2) SA 717 (W) at 728, 729). Plaintiff has not pleaded that her employer's "discretion" a misguiding word was a fettered one".
[16] Flemming DJP also cited with approval the decision of the House of Lords in Johnson v Unisys Ltd[(2001) UKHL 13] where Lord Hoffman concluded that:"The action for wrongful dismissal could therefore yield no more than the salary which should have been paid during the contractual period of notice."[17] Flemming ADJP also cited with approval Wallace v United Grain Growers Ltd[(1997) 152 DLR (4th) 1] where the Court held that:"The action for wrongful dismissal is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the relationship (or pay in lieu thereof) in the absence of just cause for dismissal A "wrongful dismissal" action is not concerned with the wrongness or rightness of the dismissal itself. Far from making dismissal a wrong, the law entitles both employer and employee to terminate the employment relationship without cause. A wrong only arises if the employer breaches the contract by failing to give the dismissed employee reasonable notice of termination. The remedy for this breach of contract is an award of damages based on the period of notice which should have been given."
[21] In Volschenk v Pragma Africa (Pty) Ltd[7] the employee claimed that his employer was in breach of contract with regard to the payment of commission and in other respects. The employee elected to terminate the contract of employment on notice. He then initiated a claim, inter-alia, for payment of damages in respect of future loss of earnings for the period of twelve months. The court held that as the employee terminated the contract on two months' notice, worked during the two months and was paid for the two-month period the employee had suffered no loss as a loss would only have been in respect of the notice period if the employee had not been paid during that time.[22] The Volschenk-matter is on all fours with the case in casu.
[23] In BMW (SA) (Pty) Ltd v National Union of Metalworkers of SA[(2020) 41 ILJ 1877 (LAC)] the employee was given notice to retire at the age of 60 while the Court found that he had exercised an option to remain on a retirement age of 65 but that BMW had failed to record his election and incorrectly retired him at 60. His actual retirement age remained 65.[24] The unilateral change to the retirement age constituted a repudiation which the applicant accepted, and which constituted an automatically unfair dismissal as the dismissal was based on age discrimination. The LAC held that the employee was entitled, as he claimed, for compensation for the automatically unfair dismissal and for damages in respect of the unfair discrimination. In his cross-appeal before the LAC the employee also claimed contractual damages.[25] The LAC had the following to say:"[ 71] However, even if this court were inclined to find that Mr Deppe has succeeded in proving that BMW repudiated his employment contract by amending his retirement age from 65 to 60 without his consent, Mr Deppe would only be entitled to contractual damages in the amount of one month's notice in terms of his contract of employment. His damages are limited to the position he would have been in, under the contract, had the breach not occurred. Mr Deppe's contractual claim for five years' damages, therefore, is misplaced as Mr Deppe's contractual claim for wrongful termination of employment is limited to one month's notice pay."[26] The limited damages rule clearly applies to the applicant's contractual claim for wrongful termination, that is a repudiation accepted by the applicant.
J 571/2021
Tsekedi v Masilonyana Local Municipality (J 571/2021) [2021] ZALCJHB 96 (4 June 2021)
Fedlife Assurance Ltd v Wolfaardt (2001) 22 ILJ 2407 (SCA), the Supreme Court of Appeal held that the clear purpose of the introduction of a remedy against unfair dismissal was to supplement common law rights of an employee whose employment might be lawfully terminated and that there could be no suggestion that either the new constitutional dispensation or the LRA deprived employees of the common law rights to enforce the terms of a fixed term contract of employment. At paragraph 17 of the judgment, the court concluded as follows:The 1995 Act does not expressly abrogate employees common law entitlement to enforce contractual rights and nor do I think that it does so by necessary implication. On the contrary there are clear indications in the 1995 Act that the legislature had no intention of doing so.And further, at paragraph 22:In my view chapter VIII of the 1995 Act is not exhaustive of the rights and remedies that accrue to an employee upon the termination of a contract of employment. Whether approached from the perspective of the constitutional dispensation and the common law or merely from a construction of the 1995 Act itself I do not think the respondent has been deprived of the common law rights that he now seeks to enforce. A contract of employment for a fixed term is enforceable in accordance with its terms and an employer is liable for damages if it is breached on ordinary principles of common law.
[22] Fedlife concerned a claim for contractual damages but the above claim is no less valid in respect of an election to enforce the terms of an employment contract. This court has made clear on many occasions that subject to its discretion, the remedy of specific performance is available to an aggrieved party in the event of a material breach of an employment contract. (See also Makhanya v University of Zululand 2010 (1) SA 62 (SCA) and more recently, Archer v Public School-Pinelands High School & others (2020) 41 ILJ 610 (LAC) where the court affirmed, at paragraph 22 of the judgment, that the impact of section 77 (3) of the BCEA is that employees are free, in addition to pursuing the rights in terms of the LRA, to pursue claims in the High Court on this court arising from their contracts of employment.)
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.
J2055/19
South African Broadcasting Corporation (SOC) Limited v Commission for Conciliation Mediation and Arbitration and Others (J2055/19) [2019] ZALCJHB 318; (2020) 41 ILJ 493 (LC) (18 October 2019)
[12] ... The definition of dismissal in s 186 of the LRA expressly includes circumstances where the employer has terminated employment with or without notice. Whether the employer casts the termination in the contractual language of acceptance of the repudiation of a contract of employment and an election to cancel the contract, this is no more or no less than a termination of employment, with or without notice (i.e. a summary termination), which in turn, by definition, constitutes a dismissal for the purposes of s 186.
"[11] To the extent that Mr. van As, who represented the SABC, urged me at least to issue a directive in any ruling that I make that commissioner Du Plessis hear evidence on the jurisdictional point, something that the SABC says that he has refused to do. I fail to appreciate how such an order can be made in the context of what amounts to an application to stay an arbitration hearing pending a review of a jurisdictional ruling made by another commissioner. Control over arbitration proceedings (and the basis on which evidence is led) is best left to the presiding commissioner. It is not the function of this court to micro-manage arbitration hearings and issue directions to commissioners as to how they should conduct a hearing. In any event, as I have observed, some jurisdictional points (particularly those concerned with whether the referring party is an employee as defined in the LRA or whether any termination of employment constituted a dismissal) are best determined once all the evidence is in they need not be the subject of a discrete enquiry."
[11] To the extent that Mr. van As, who represented the SABC, urged me at least to issue a directive in any ruling that I make that commissioner Du Plessis hear evidence on the jurisdictional point, something that the SABC says that he has refused to do. I fail to appreciate how such an order can be made in the context of what amounts to an application to stay an arbitration hearing pending a review of a jurisdictional ruling made by another commissioner. Control over arbitration proceedings (and the basis on which evidence is led) is best left to the presiding commissioner. It is not the function of this court to micro-manage arbitration hearings and issue directions to commissioners as to how they should conduct a hearing. In any event, as I have observed, some jurisdictional points (particularly those concerned with whether the referring party is an employee as defined in the LRA or whether any termination of employment constituted a dismissal) are best determined once all the evidence is in they need not be the subject of a discrete enquiry.
JR628/13
Frank v Commission for Conciliation, Mediation and Arbitration and Others (JR628/13) [2017] ZALCJHB 9 (17 January 2017)
A hearing in the circumstances does not entail a disciplinary hearing as one will expect in a case of misconduct, which the applicant contends his was the case, which contention has no merit in law or fact.
Only claim for reasonable notice
JS523/19
Solidarity obo Radzilani v Eskom Holdings SOC Ltd (JS523/19) [2022] ZALCJHB 179 (6 July 2022)
[81] In Rand Water v Stoop[7] the Labour Appeal Court rejected the contention that section 77(3) of the Basic Conditions of Employment Act[8] (BCEA) only permits the Labour Court to interpret the terms of an employment contract and interpret it, holding that this was unreasonable in view of the remedies the Labour Court may grant in terms of section 77A (e). Secondly, it was acknowledged that the word concerning in section 77(3)[9] conveyed cause and effect but, it was held, this does not imply that there was to be a direct or indirect link between the contract of employment and the claim.
JR1619/19
City of Tshwane Metropolitan Municipality v South African Municipal Workers Union obo Members and Others (JR1619/19) [2021] ZALCJHB 307 (17 September 2021)
Commercial Workers Union of SA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 90.
The proper approach to the construction of a legal instrument requires consideration of the document taken as a whole. Effect must be given to every clause in the instrument and, if two clauses appear to be contradictory, the proper approach is to reconcile them so as to do justice to the intention of the framers of the document. It is not necessary to resort to extrinsic evidence if the meaning of the document can be gathered from the contents of the document.'
JR784/2016
Dioma and Another v Mthukwane N.O and Others (JR784/2016) [2020] ZALCJHB 138 (11 August 2020)
[36] In accordance with the provisions of section 23 of the Labour Relations Act, 1995 (LRA) collective agreements are binding on the parties. The purpose of section 24 of the LRA is to resolve disputes where a party to an agreement is alleged to have been in breach of the provisions of that agreement by failing to interpret or apply its terms either correctly or at all.[20] The principles applicable to the resolution of such disputes are trite as restated in Western Cape Department of Health v Van Wyk & others.[(2014) 35 ILJ 3078 (LAC) at para 22. See also North East Cape Forests v SAAPAWU and others [1997] 6 BLLR 711 (LAC); Food and Allied Workers Union v Commission for Conciliation, Mediation and Arbitration & o'thers (2007) 28 ILJ 382 (LC), at para 35] These are that:i. When interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of the collective agreement; ii. The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.iii. A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement.iv. The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give to the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made;[22]v. The parol evidence rule when interpreting collective agreements is generally not permissible when the words of the memorandum are clear.vi. Collective agreements are generally concluded following upon protracted negotiations, and it is expected of the parties to those agreements to remain bound by their provisions. It therefore follows that such agreements cannot be amended unilaterally.
CA6/2019
Municipal and Allied Trade Union of South Africa (MATUSA) v Central Karoo District Municipality and Others (CA6/2019) [2020] ZALAC 20; (2020) 41 (ILJ) 1918 (LAC); [2020] 9 BLLR 896 (LAC) (28 May 2020)
PA6/19
National Union of Metalworkers of South Africa v Commission for Conciliation Mediation and Arbitration and Others (PA6/19; PR03/18 ; PR50/18) [2020] ZALAC 8; (2020) 41 ILJ 1629 (LAC) (18 February 2020)
J1338/19
UASA and Others v Western Platinum Limited and Others (J1338/19) [2019] ZALCJHB 158; (2019) 40 ILJ 2405 (LC); [2019] 11 BLLR 1283 (LC) (24 June 2019)
agency shop agreement invalid and unenforceable, agency shop agreement must expressly provide for matters prescribed by s 25(3) of the LRA
Solidarity and Others v Minister of Public Service and Administration (J648/03) [2003] ZALC 122 (21 April 2004).
In my view the agreement substantially complied with statutory requirementsHowever this does not make the agreement valid for reasons that the agency agreement interferes with a persons constitutional right of freedom of association as contained in section 18 of Chapter 2 of the Bill of Rights. It therefore becomes an unfair labour practice to force the employee to join a trade union by making deductions on his salary to make him join the union. The legislature was aware of this and therefore sought to provide that the agreement should make provision for the fact that non-union members are not compelled to become members. This is a fundamental requirement necessary to make the agreement valid.[8]
Solidarity and Others v Minister of Public Service and Administration
JA11/17
Solidarity obo Members employed in motor industry v Automobile Manufacturers Employers Organisation (AMEO) and Others (JA11/17) [2019] ZALAC 63; [2020] 2 BLLR 142 (LAC); (2020) 41 ILJ 419 (LAC) (16 October 2019)
agency shop agreement is a collective agreement which could be amended and not rectified - Rectification is a remedy designed to correct the failure of a written contract to reflect the true agreement between the parties to the contract.
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)
SACOSWU [2017] 9 BLLR 905 (LAC)
Section 18
[28] In SACOSWU on appeal the majority in the Constitutional Court held that majority trade union parties (and employers) could not, by entering into private threshold agreements contemplated in section 18 of the LRA and which were not laws of general application, limit a trade unions (and accordingly its members) right to engage in collective bargaining.[15] Accordingly, such a private threshold agreement could also not preclude a minority trade union from bargaining with the employer about organisational rights. Section 18 of the LRA does not authorise majority unions and employers from determining which constitutional rights other unions, which were not parties to the threshold agreement, may exercise.
Section 20
Section 20 of the LRA also declares expressly that nothing in part A of Chapter III (being the place in the LRA where section 18 is located) precludes the conclusion of a collective agreement that regulates organisational rights. Thus, not even a threshold agreement concluded between an employer and a majority union, or unions.[17]
section 23
Although section 23 of the LRA is not located in the position of the LRA referred to in section 20, it also does not preclude a collective agreement between an employer and a minority union regulating organisational rights where there is an existing threshold agreement in place between an employer and a majority trade union regulating those rights.[18]
organisational rights in section 12, 13 and 15
First, it may acquire those rights if it meets the threshold set in the collective agreement between the majority union and the employer. In that event, a minority union does not have to bargain before exercising the rights in question. Second, such a union may bargain and conclude a collective agreement with an employer in terms of which it would be permitted to exercise the relevant rights. Third, a minority union may refer the question whether it should exercise those rights to arbitration in terms of section 21 (8C) of the LRA. If the union meets the conditions stipulated in that section, the arbitrator may grant it organisational rights in the relevant provisions.[19]
JA19/18
Appels v Education Labour Relations Council (ELRC) and Others (JA19/18) [2019] ZALAC 49; [2019] 10 BLLR 985 (LAC); (2019) 40 ILJ 2284 (LAC) (10 July 2019)
[5]...collective agreements concluded in bargaining councils that regulate dispute resolution should be given primacy because section 51 of the LRA empowers bargaining councils to establish procedures to resolve disputes and in doing so, to design their own procedures that address the exigencies of the sector for which they are registered and to ensure efficient and cost-effective dispute resolution, and that these procedures may deviate from those established by the LRA.
DA1/2015
Hospersa obo Tshambi v Department of Health, KwaZulu-Natal (DA1/2015) [2016] ZALAC 10; [2016] 7 BLLR 649 (LAC); (2016) 37 (ILJ) 1839 (LAC) (24 March 2016)
NUCW v Oranje Mynbou en Vervoer Maatskappy Bpk [2000] 2 BLLR 196 (LC) at paras 8 9
Whether a dispute about the application of a collective agreement, referred to in section 24(1) of the Act, would include the enforcement of a collective agreement when it is breached, is a further question which needs to be decided.Enforcement of an agreement only becomes an issue when there is some form of non-compliance with that agreement. When a party wishes to enforce the agreement it would be, at leastinteralia,because it believes the agreement is applicable to the party who is in breach thereof. Therefore a dispute about the application of a collective agreement (section 24(1) of the Act) applies to the situation where there is non-compliance with a collective agreement and one of the parties wishes to enforce its terms. Consequently, the CCMA, and not the Labour Court, should entertain disputes arising from the non-compliance with collective agreements.
t seems plain that the notion of enforcement articulated by Revelas J was of a step thatfollowed uponthe applicability of the collective agreement being proven, rather than a facet of the notion of application.
There is accordingly no need nor any justification to understandsection 24in a sense so broad that any alleged breach of a term of a collective agreement means the dispute automatically falls withinsection 24.
JA87/2015
South African Correctional Services Workers Union (SACOSWU) v Police and Prisons Civil Rights Union (POPCRU) and Others (JA87/2015) [2017] ZALAC 30; [2017] 9 BLLR 905 (LAC); (2017) 38 ILJ 2009 (LAC) (31 May 2017)
On appeal: the decision of the Labour Court was set aside on the basis that s 20 provides that nothing in Part A of Chapter III, which must include a s 18(1) threshold agreement, precludes the conclusion of a collective agreement that regulates organisational rights. This accords with the recognition that minority unions are entitled to have access to the workplace so as to challenge the hegemony of majority unions, at least to represent their members. On the same basis, the deduction of trade union subscriptions for a limited period was permissible. The appeal was consequently upheld with costs.
J2264/17
Appels v Education Labour Relations and Others (J2264/17) [2017] ZALCJHB 428; (2018) 39 ILJ 816 (LC) (7 November 2017)
the key to a proper interpretation of s 51 (9) of the LRA is an understanding of the role of bargaining councils in the statutory dispute resolution system. Bargaining councils are voluntary bodies and operate according to the principles of self-regulation and autonomy. Having said that, bargaining councils are creatures of statute and may act only within the confines of the empowering legislation. The question to ask is whether s 51 (9), which clearly empowers bargaining councils to establish procedures to resolve any dispute, must be read subject to a condition that any agreed procedure must replicate time periods and any other limitations as they find reflection in the LRA. There is nothing in the LRA that establishes such a condition, or which otherwise places constraints on a bargaining council that agrees to establish dispute resolution procedures. On the contrary, there is at least one authority to support the proposition that bargaining councils may establish procedures that differ from those established by the LRA. [16]...This will ensure that procedures are rational, not arbitrary and free from caprice or ulterior purpose. The reasons proffered by the bargaining council for truncating the periods within which promotion disputes must be referred are obviously rational, intended as they are to serve the legitimate ends of minimising disruptions to learning and the expeditious resolution of disputes.
MIBCO v Osborne & others [2003] 6 BLLR 573 (LC)
However, section 51 (9) permits a bargaining council to exclude the operation of the LRA in the circumstances contemplated in that subsection, by establishing its own procedures by means of a collective agreement, which obviously can be extended to non-parties. The collective agreement, such as those to which I have referred in this judgement, circumvent the operation of the LRA.
Wanenburg v Motor Industry Bargaining Council & others (2001) 22 ILJ 242 (LC)
[20] Bargaining councils may design their own dispute systems in ways that ensure efficient and cost effect (sic) resolution and prevention of disputes. From the DRC terms of reference and procedures, there is nothing inherently prejudicial to nonparties. It provides a procedure for conciliation and arbitration of disputes and for granting combinations. It is consistent with the LRA. There is therefore no reason for the court to interfere by imposing any other procedure.[21] in the circumstances the DRC terms of reference and procedures can be applied to nonparties not as a collective agreement but as a procedure developed by the bargaining council for the industry in order to give effect to its obligations in terms of ss 51 (3) and 191 (2) in order to carry out its functions in terms of s 28 (1) (c) and (d).[23] Firstly, bargaining councils must be allowed the flexibility to design their own dispute systems so that the most inexpensive and effective procedures are adopted. If that means having a condonation application followed by an internal appeal, so be it. Even if the NRA makes no express provision for such an appeal, it would be consistent with the general policy of encouraging maximum use of private and internal dispute resolution mechanisms and the settlement of disputes at the lowest possible level.
Own employment policy
Private Arbitration
Les favorable: no conciliation; cost order ito sect 35 Arbitration act
JA 52/10
National Bargaining Council for the Road Freight Industry and Another v Carlbank Mining Contracts (Pty) Ltd
Unfair discrimination
increase to non-union members provided not join union
Unions members not prohibited from striking if agreement has not yet been extended to them in terms of s 32
31, 32
DA9/16
Gangaram v MEC for the Department of Health, Kwazulu-Natal and Another (DA9/16) [2017] ZALAC 38; (2017) 38 ILJ 2261 (LAC); [2017] 11 BLLR 1082 (LAC) (13 June 2017)
Employee deemed dismissed in terms of section 17 of the PSA employee making representations for her reinstatement employer failed to respond employee implying that the failure to take a decision amount to a decision refusing her reinstatement susceptible to be set aside Held that the point of departure is whether the employee was properly deemed to have been dismissed that employer knew employees whereabouts as employee submitted leave forms as justification for each absence that in the absence of a refusal of the leave forms, employee rightly assuming that leave forms approved that the jurisdictional requirements for the employee to be deemed dismissed because of being absent for a period exceeding one calendar month without permission have not been satisfied, and as such there was no need for her to make representations in terms of s17(3)(b) for her reinstatement. Appeal upheld and Labour Courts judgment set aside employee reinstated retrospectively.
JR2395/14
Minister of Public Service and Administration and Another v Public Servants Association obo Makwela and Others (JR2395/14) [2017] ZALCJHB 414 (6 April 2017)
Public Servants Association of SA on behalf of de Bruyn v Minister of Safety and Security and Another (2012) 33 ILJ 1822 (LAC) at para 26.
The supposition that public servants had an extra string to their bow in the form of judicial review of administrative action, ie acts and omissions by the state vis--vis public servants, evaporated when the Constitutional Court in Chirwa v Transnet Ltd & others, held that the dismissal of a public servant was not 'an administrative act' as defined in PAJA and therefore not capable of judicial review in terms of that Act. Any uncertainty regarding the interpretation of the Chirwa judgment was removed in the subsequent decision in Gcaba v Minister for Safety & Security & others. The result is that a public servant is confined to the other remedies available to him or her.
JA103/2015
Minister of Labour and Another v Public Services Association of South Africa and Another (JA103/2015) [2017] ZALCJHB 23 (25 January 2017)
Ministers reversal of designation of official as registrar of labour relations appointed in terms of S108(1) of the Labour Relations Act,no.66 of 1996 administrative action and reviewable in terms of thePromotionOf Administrative Justice Act, no.2 of 2000, Alternatively, the principle of legality in the constitutionnot established that registrar had duty to brief minister concerning specific matter registrar was dealing with in exercise of functionsRegistrar nevertheless found to have adequately briefed minister----Reversal of designation In circumstances confirmed to have been irrational and invalidDecision also confirmed to have been procedurally unfairReinstatement to position of registrar appropriate remedy---Appeal of Minister against judgment and order of labour court dismissed with costs.
JR1157/20
NTEU obo Moeketsi v The CCMA and Others (JR1157/20) [2022] ZALCJHB 226 (16 August 2022)
[28] It is by now settled law that labour disputes do not amount to administrative actions[Gcaba v Minister for Safety and Security and others (2010) 31 ILJ 296 (CC) and Chirwa v Transnet Limited and others 2008 (4) SA 367 (CC).]. Therefore, it is entirely inappropriate, in my view, to infuse into the LRA administrative law principles. It ought to be remembered that the dispute resolution bodies envisaged in the LRA do not function like Courts. They are not possessed with judicial review powers like the Courts do. Even section 7 (2) (a) (b) (c) of the Promotion of Administrative Justice Act (PAJA)[Act 3 of 2000.] does not deprive a Court of its review jurisdiction. A Court may direct a party to first exhaust internal remedies before it can review any administrative decision. Section 7 (1) (a) of PAJA expressly provides that the 180 days commence to run after the internal remedies are concluded. The LRA has no similar provisions.
JR496/17
Department of Education: Gauteng v Education Labour Relations Council and Others (JR496/17) [2021] ZALCJHB 392 (19 October 2021)
[24] It is apparent from the above authority that section 6 of EEA does not only provide for the powers the employer has in relation to the appointments, promotion and transfers of educators but also for the procedure to be followed in doing so. It is further apparent that the appointments made by the Head of Department of Education were plainly the result of an 'administrative action' as defined in section 1 of PAJA.
[25] The law is clear that the administrative decisions may only be subjected to judicial review in a Court or tribunal.[6] The Court is defined in section 1(iv) of PAJA as:(a) the Constitutional Court acting in terms of section 167(6)(a) of the 30 Constitution; or(b) (i) a High Court or another court of similar status; or(ii) a Magistrates Court, either generally or in respect of a specified class of administrative actions, designated by the Minister by notice in the Gazette and presided over by a magistrate designated in writing by the Minister after consultation with the Magistrates Commission.[26] Section 1(xiii) of PAJA defines the tribunal as any independent and impartial tribunal established by national legislation for the purpose of judicially reviewing an administrative action in terms of PAJA.[27] In the current matter, although the dispute was referred in terms of 186(2) of the LRA and the arbitrator described it as such, it is apparent from the reading of his award that what the arbitrator did was to review, set aside and substitute the decision of the applicant. This, is confirmed by the portion where the arbitrator states as follows:the arbitration is not the review of the process or the hearing de novo but a review of the employers decision[7][28] To an extent that the applicants decision sought to be challenged by the third respondent at the arbitration was the result of an administrative action as defined in s 1 of PAJA and further that the first respondent is not a Court or a tribunal as defined in PAJA, it follows that the arbitrator had no jurisdiction to review the applicants decision. As such, his award falls to be set-aside only on this ground.
[21] The first ground on which the arbitrators award was challenged was that he failed to give due consideration to sections 6(3) and 7(1) of the EEA. It is appropriate, at this point to set out the provisions in question.
J3092/18
Solidarity v Minister of Labour and Others (J3092/18) [2019] ZALCJHB 277; [2020] 1 BLLR 79 (LC); (2020) 41 ILJ 273 (LC) (8 October 2019)
the South African Human Rights Commission (SAHRC), issued a report entitled Achieving substantive economic equality through rights-based radical socio-economic transformation in South Africa (the Equality Report)...The report concludes, amongst other things, that the definition of designated groups in the EEA (broadly, the categories of persons who are beneficiaries of the affirmative action measures established by the EEA) is not in compliance with constitutional or international law obligations, and recommends that the EEA be amended to target more nuanced groups on the basis of need, and taking into account social and economic indicators.
Solidarity seeks only to have the findings and recommendations of the Equality Report given legal recognition and effect, at least until any reviewing court sets them aside. That being so, the court is not concerned with a direct challenge to the constitutionality of s 42 of the EEA
[27] In summary: There is no statutory or other regulatory provision that renders the Equality Report binding on government or any other party. The SAHRC itself does not intend the Report to be binding; it is a research report intended to contribute to the public discourse and to provide advice and guidance to government in fulfilling its constitutional obligations. Since the Equality Report is not binding on government or any other party, it follows that there is no basis on which this court is empowered to confirm or otherwise enforce the reports findings and recommendations for the purpose sought by Solidarity, or for any other purpose.
J467/17
Sekano v Tiger Brands Ltd (J467/17) [2017] ZALCJHB 188 (6 March 2017)
Gcaba v Minister of Safety and Security and others(2010) 31ILJ296 (CC)
the law has been settled in favour of a single system of law, i.e. that created by the LRA.
J879/12
Solidarity v Minister of Safety and Security and Others (J879/12) [2016] ZALCJHB 15; (2016) 37 ILJ 1012 (LC); [2016] 5 BLLR 484 (LC) (26 January 2016)
Equity plan not implemented contrary to s 27(2) of SAPS Act Use of national demographics not in breach of s 195(1) of the Constitution
