The Constitutional Court was called upon to determine on appeal the correct interpretation of ss 18 and 20 of the LRA 1995. The majority court found that the existence of a threshold agreement in terms of s 18 between the employer and the majority union did not preclude the conclusion of a collective agreement in terms of s 20 between the employer and a minority union conferring organisational rights on that union. It held that this would effectively deny the minority union of the constitutional right to engage in collective bargaining and would conflict with the provisions of the LRA, the Constitution 1996 and international law (Police & Prisons Civil Rights Union v SA Correctional Services Workers Union & others at 2646).

A bargaining council arbitrator had found that the singing of a struggle song containing the phrase ‘hit the boer’ during a peaceful unprotected strike was inappropriate but did not constitute crude racism and did not justify dismissal of the striking employees. The Labour Court upheld the arbitrator’s finding and the Labour Appeal Court refused the company leave to appeal. In an application for leave to appeal to the Constitutional Court, the court noted that the word ‘boer’ is not a racist term. It found that there was no principle of law that racism automatically leads to dismissal, rather that arbitrators and courts should deal with racism firmly while treating perpetrators fairly — a rigid rule that every perpetrator of racism should be dismissed would be inconsistent with the principle of fairness. The court found that the award met the requirements of reasonableness and dismissed the appeal (Duncanmec (Pty) Ltd v Gaylard NO & others at 2633).

Members of a minority union refused to return to work because of violence arising from inter-union rivalry and were dismissed for unauthorised absence. In unfair dismissal proceedings, the Labour Court rejected their reliance on s 23 of the Mine Health and Safety Act 29 of 1966, as the employees had not relied on this section when they refused to return to work. The court found, however, that the employees’ dismissal had been substantively unfair because the employees’ fear that the employer could not protect them from further attacks by members of the majority union was reasonable. The employer should have treated the employees with compassion and understanding and not resorted to dismissal. The court found further that the employer had acted inconsistently by only disciplining members of the minority union and not those of the majority union. It found that reinstatement was not appropriate in the circumstances as the employees demanded that the employer and the majority union guarantee their safety as a condition for their return, which guarantee neither the employer nor the majority union had any legal obligation to provide (Association of Mineworkers & Construction Union & others v Northam Platinum Ltd at 2692).

In Littler and Circle of Life HIV/AIDS Support Group (at 2794) a CCMA commissioner found that the dismissed employee had not brought her employer into disrepute with the Department of Health where she was under a duty to report board irregularities to the department. However, in Motsoeneng and SA Broadcasting Corporation SOC Ltd (at 2809) the commissioner found that the employee had caused the employer great reputational harm and embarrassment when he made disparaging remarks about the employer, the board and a judge of the Labour Court during a press conference. 

In Malatji v Minister of Home Affairs & another (at 2684) the Labour Appeal Court confirmed that, when determining a judgment debtor’s liability to pay interest on an arbitration award in terms of s 143(2) of the LRA 1995, the common-law position has not been departed from — mora interest only accrues once the amount of compensation is ascertained or easily ascertainable. There is no legal principle in terms of which a debtor might be mulcted with the payment of interest for a period in circumstances where the extent of its liability has not yet been established in that period. The judgment creditor will only be entitled to the payment of interest a tempore morae on the unliquidated claim from the date of the award if the award was not challenged through the review process, or from date of the judgment on review pursuant to the court’s determination of the quantum of the claim. 

Where an unfair discrimination dispute arose before the amendment of s 6(4) and s 10(6)(b) of the Employment Equity Act 55 of 1998 but was referred to the CCMA after the amendment became operative on 1 August 2014, the Labour Court confirmed that the dispute had to be determined in accordance with the amended provision (Eskom Holdings SOC Ltd v De Wet NO & others at 2715).