In a unanimous order the Constitutional Court held, in Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus & others (at 527), that an arbitration award issued in favour of the employee had not prescribed after three years. However, the reasons for achieving this result differed, with the court handing down three separate judgments. In the first judgment, Jafta J found, inter alia, that the Prescription Act 68 of 1969 and the Labour Relations Act 66 of 1995 are fundamentally different and that the Prescription Act does not apply to arbitration awards issued in terms of the LRA. In a separate judgment Zondo J concurred with Jafta J and provided additional reasons why the Prescription Act does not apply to the LRA dispute-resolution system. Although he arrived at the same order, Froneman J reasoned that the Prescription Act requires reinterpretation, but that this does not necessitate a finding that its provisions are inconsistent with the provisions of the LRA.

A municipal employee in a management position defied the municipal manager’s instruction to stop representing employees in disciplinary enquiries instituted by the municipality. The Labour Appeal Court confirmed that the instruction was lawful and reasonable and that the employee’s conduct amounted to gross insubordination. In addition, the employee had blatantly and public challenged the authority of the municipal manager, had dared him to take action and had shown no remorse. In these circumstances, dismissal was the appropriate sanction (Msunduzi Municipality v Hoskins at 582).

The Labour Appeal Court has found that, when a full-time shop steward ceases to hold that office and resumes her duties in the position that she held at the employer prior to appointment as shop steward, that does not constitute a demotion (Mhlekude v SA Airways (SOC) Ltd & others at 577).

In Gumede and Crimson Clover 17 (Pty) Ltd t/a Island Hotel (at 702) a CCMA commissioner found that the employer’s conduct in judging the employee adversely on the basis of body odour was discriminatory and unfair, and he awarded the employee compensation. However, in Ngwabe and Imvula Quality Protection (Pty) Ltd (at 724) a commissioner rejected an employee’s claim that he had been subjected to unfair discrimination relating to his disability when a co-worker referred to him as ‘one eye’.

The employer had taken appropriate disciplinary steps against the coworker for the insensitive comment and the co-worker had apologised. In National Education Health & Allied Workers Union on behalf of Zuma and KZN Legislature (at 717) a commissioner rejected an employee’s claim that a disparity in pay amounted to unfair discrimination. The differentiation was neither irrational nor capricious and did not prejudice the employee.

In Khumalo and Enforce Security Services (Pty) Ltd (at 711) the employee claimed that his employer had unfairly discriminated against him by falsely disclosing his status as HIV positive thereby impairing his dignity. The CCMA commissioner found, however, that the real dispute related to disclosure of information in terms of the Employment Equity Act 55 of 1998, and that it had no jurisdiction to determine the matter.

The Labour Appeal Court, in Vermooten v Department of Public Enterprises & others (at 607), found that when parties in a relatively equal bargaining position consciously elect one contract or relationship over another, legal effect should be given to their choice. In this matter, the appellant and the respondent department consciously and deliberately elected to structure their relationship as one other than an employment relationship, and the consultancy agreement entered into by the parties was not a sham. In the absence of any overriding policy considerations, neither a tribunal nor a court could ignore its terms.

A term in the appellant’s contract of employment to the position of close protection officer to the municipal manager provided that his appointment was subject to a vetting process and that, if that process revealed ‘negative outcomes’, the contract would be automatically terminated. Negative information relating to misconduct and criminal activities was provided by the appellant’s previous employer. The municipality invoked the automatic termination clause. The Labour Appeal Court found that the appellant had freely and voluntarily agreed to the vetting and to an automatic termination if the vetting yielded a negative result. The vetting result was patently and objectively negative of and concerning the appellant’s suitability for the position. The termination was triggered automatically and not by an act of the employer aimed at ending the employment relationship. The court therefore upheld the bargaining council arbitrator’s finding that the appellant had not been dismissed (Nogcantsi v Mnquma Local Municipality & others at 595).

The applicant’s contract of employment was subject to the condition that he had to secure a valid work permit. The respondent bank accepted a copy of a work permit supplied by the applicant and confirmed his employment. It later formed suspicions about the validity of the work permit and suspended the applicant. In an application for urgent interim relief pending determination of an unfair labour practice dispute relating to suspension, the Labour Court was satisfied that, for purposes of this application, the suspensive condition had been fulfilled when the applicant produced the work permit and the bank accepted it. Until the bank determined that the permit was invalid and unequivocally communicated its decision to the applicant, he remained an employee of the bank (Kawalya-Kagwa v Development Bank of Southern Africa at 643).