Industrial Law journal Preview
                                                                                                                                  August 2019
 
 
Dear Industrial Law Journal subscriber
We take pleasure in presenting the Augusty 2019 issue of the monthly Industrial Law Journal Preview, authored by the editors of the ILJ: Christine Vosloo, Lisa Williams de Beer, Moffat Ndou and Richard Haslop.
 
Please note:  This newsletter serves as a preview of the printed and the electronic Industrial Law Journal. At the time of this dissemination, the full-length cases and determinations are still being prepared for publication in the Industrial Law Journal. The material mentioned in this newsletter only becomes available to subscribers when the Industrial Law Journal is published.

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The Juta General Law
 

Retrenchment— Large-scale Retrenchment — Procedural  Fairness

 

The Constitutional Court has upheld the judgment of the Labour Appeal Court in Edcon Ltd v Steenkamp & others (2018) 39 ILJ 531 (LAC), by confirming that the purpose and functioning of an application in terms of s 189A(13) of the LRA 1995 is to provide a remedy while the parties are still locked in consultations or shortly thereafter where reinstatement can still salvage the consultation process by restoring the status quo ante — it is not available at a future date long after the retrenchment process has concluded. The court also confirmed that the remedy of compensation provided for in s 189A(13)(d) is not a primary self-standing remedy, but is dependent on the inappropriateness of the remedies in paras (a), (b) and (c) (Steenkamp & others v Edcon Ltd at 1731).

 

Labour Court — Jurisdiction

 

In Steenkamp & others v Edcon Ltd (at 1731) the Constitutional Court confirmed that the Labour Court’s jurisdiction to adjudicate the procedural fairness of a dismissal for operational requirements had been ousted by s 189A(18) of the LRA 1995.

 

The Labour Court’s concurrent jurisdiction with the High Court in terms of s 157(2) of the LRA 1995 in respect of any alleged or threatened violation of a fundamental constitutional right arising from employment and from labour relations was considered in two decisions of the Labour Court: In Vodacom (Pty) Ltd & others v National Association of SA Workers & another (at 1882) the court considered the meaning of ‘from employment and from labour relations’ in s 157(2) and found that the phrase did not restrict the application of the section to disputes between employers and their own employees but referred to the context from which the alleged infringement arose. The court therefore found that an assertion of property rights by an owner of premises vis-à-vis a union attempting to have access to a workplace on those premises, and to meet with employees there, involved the alleged infringement of a constitutional right arising from employment and labour relations. In Solidarity v SA Rugby Union & others (at 1862) the court rejected the argument that referral to conciliation was a precondition for the court’s jurisdiction in terms of s 157(2) — the dispute was not an unfair dismissal dispute and fell outside the purview of s 191 of the LRA. 

 

Arbitration Awards — Review — Security

 

In City of Johannesburg v SA Municipal Workers Union on behalf of Monareng & another (at 1753) the Labour Appeal Court considered the conflicting decisions of the Labour Court on the interpretation of s 145(7) and (8) of the LRA 1995 which provides for the stay of enforcement of arbitration awards pending review on the payment of security. It supported the interpretation in Rustenburg Local Municipality v SA Local Government Bargaining Council & others (2017) 38 ILJ 2596 (LC), finding that the payment of security automatically suspends the arbitration award pending review and that both public and private employers are subject to the same requirements relating to the provision of security. It also found that the Labour Court, in the exercise of its discretion as contemplated in s 145(3), is entitled to reduce the quantum of security to be paid or dispense with security all together on the applicant employer showing good and proper cause for the court to do so.

 

Disciplinary Enquiry — Review of Decision of Presiding Officer

 

The Labour Appeal Court has confirmed that a department of state as employer has the right, under s 158(1)(h) of the LRA 1995, to review unreasonable, irrational or procedurally unfair conduct by a presiding officer exercising delegated authority, including decisions that constitute administrative action reviewable under s 6 of the Promotion of Administrative Justice Act 3 of 2000. In this matter the Labour Court had dismissed the review on the basis that the department had not set out a cause of action. On appeal the LAC found that the department had pleaded its factual case in its founding affidavit, and that, although it did not specifically set out its cause of action as a review under s 6 of PAJA, it was clear from its averments in the founding affidavit that the chairperson had acted unreasonably, irrationally and procedurally unfairly when he dismissed the misconduct charges against the employee on the basis of the delay in convening the disciplinary hearing. The court accordingly found that the decision of the chairperson had to be reviewed and set aside (Department of Education (Province of the Northern Cape) v Kearns NO & others at 1764).

 

Public Service — Recovery of Erroneous Overpayment of  Remuneration

 

The Labour Appeal Court disagreed with the Labour Court’s finding in Tshifhango & another v Minister of Justice & Correctional Services & others (2017) 38 ILJ 2131 (LC) that the provisions of s 38 of the Public Service Act (Proc 103 of 1994) which provide for the recovery of erroneous overpayment of salary, could only be triggered after the executing authority had made a decision that a salary level or scale was incorrect and after the employee had been given the opportunity to make representations. It found that the obligation to correct an incorrect salary level or scale arose by operation of law, and consequently that no decision was made by the executing authority and the employee was not entitled to make representations. However, it found, following the Constitutional Court decision in Public Servants Association on behalf of Ubogu v Head of the Department of Health, Gauteng & others (2018) 39 ILJ 337 (CC), that the employee was entitled to a hearing before a decision was taken in respect of the manner in which the employee should reimburse the overpayment (Minister of Justice & Correctional Services & others v Tshifhango & another at 1773).

 

Strike — Strike Ballot

 

The Labour Court has considered the recently introduced transitional provision in s 19 of the Labour Relations Amendment Act 8 of 2018 which provides that, if a union’s constitution does not provide for a pre-strike secret ballot as required by s 95(5)(p) of the LRA 1995, a secret ballot must be conducted before members of the union can engage in strike action until the registrar has issued a directive to the union to amend its constitution. It found that the transitional provision is not an infringement of the right to strike and that union members are not entitled to strike until the provisions of s 95(5)(p) are complied with or a secret ballot is conducted (Mahle Behr SA (Pty) Ltd v National Union of Metalworkers of SA & others; Foskor (Pty) Ltd v National Union of Metalworkers of SA & others at 1814)

 

Victimisation for Membership of Trade Union

 

In National Union of Mineworkers on behalf of Members v Cullinan Diamond Mine, A Division of Petra Diamonds (Pty) Ltd (at 1826) the Labour Court considered the provisions of s 5 of the LRA 1995 and s 6 of the Employment Equity Act 55 of 1998 in the context of the Constitution, and distinguished between strike action as an activity of a trade union and as the constitutional right of a worker. The court concluded that participation in strike action is not participation in the lawful activities of a union but rather the exercise of a right guaranteed by the Constitution. It found that, in this matter, the payment of a performance bonus to certain employees for exceptional performance during a strike did not infringe s 5 of the LRA. The non-payment of the bonus to striking workers was linked to the operational requirements of the employer and not their engagement in the strike.

 

Trade Union — Legal Standing

 

The Labour Court confirmed that a trade union’s locus standi is provided for in s 200 of the LRA 1995, which enables a union to act in its own interest and/or in the interest of its members in any dispute to which any of its members is a party. In this matter the applicant union had failed to establish that any of the employees referred to in the application were its members, and had therefore failed to establish its legal standing (Solidarity v SA Rugby Union & others at 1862).

 

Unfair Discrimination Dispute

 

In SA Police Service v Solidarity on behalf of Conradie & others (at 1849) the Labour Court had to determine the date when an unfair discrimination dispute relating to promotion arose for purposes of determining whether the dispute had been referred within six months of the act or omission constituting the unfair discrimination. The court found that, once it is accepted that discriminatory acts, within the employment context, can be once off and/or continuous in nature, any attempt to ‘label’ specific acts of discrimination as always once-off or always continuous in nature had to be rejected. In this promotion dispute, not only the date of non-promotion, but all the facts and surrounding circumstances were relevant, including the fact that the employer’s collective agreement provided that internal grievance procedures had to be exhausted before referral.

 

In Sun International Ltd v SA Commercial Catering & Allied Workers Union on behalf of Ramerafe & others (at 1873) the Labour Court reviewed and set aside a CCMA commissioner’s finding in an unfair discrimination dispute relating to equal pay for work of equal value. It found that the commissioner’s failure to take into account all evidence, including the factors justifying differentiation set out in regulation 7 of the Employment Equity Regulations, amounted to a material error of law.

 

Collective Agreement — Industrial Council Agreement not  Collective Agreement

 

In Independent Municipal & Allied Trade Union v Ekurhuleni Metropolitan Municipality & others (at 1794) the Labour Court confirmed that an industrial council agreement promulgated under s 48 of the LRA 1956 was not a collective agreement for the purposes of the LRA 1995.

 

Temporary Employment Service

 

In several awards CCMA commissioners dealt with the implications of the finding by the Constitutional Court in Assign Services (Pty) Ltd v National Union of Metalworkers of SA & others (Casual Workers Advice Office as Amicus Curiae) (2018) 39 ILJ 1911 (CC) that the deeming provision in s 198A(3)(b) of the LRA 1995 meant that the employees of a TES were deemed to be employees of the client exclusively. In African Meat Industry & Allied Trade Union on behalf of Members and National Brands Ltd t/a Snackworks & another (at 1894) the commissioner found that nothing in the law supported the employees’ interpretation that prohibited a continued commercial relationship between the TES and the client post-deeming. The client’s utilisation of the TES to administer payroll or perform HR functions did not alter the legal status of the client as the sole employer. 

 

In General Industries Workers Union of SA on behalf of Mgedezi & others and Swissport SA (Pty) Ltd & another (at 1903) the commissioner found that nothing in the law suggested that the placed employees’ contracts transferred to the client — the employment relationship between those employees and the client arose by operation of law and independent of any contract between the TES and the employees. The commissioner found therefore that there was no requirement for the employees to be ‘on the books’ of the client.

 

In Khumalo & another and Adcorp Blu, A Division of Adcorp Workforce Solutions (Pty) Ltd & another (at 1910) the commissioner found that, after the deeming provision came into effect, the TES was no longer the employer of the placed employees in relation to unfair dismissals and unfair labour practices. He therefore found that the TES lacked locus standi to be a party to an unfair dismissal dispute before the CCMA.

 

In Mini & others and Workforce Staffing Group & another (at 1916) the commissioner found that there was nothing in the LRA which supported the view that the deeming provisions were not applicable to part-time employees of a TES. However, in SA Chemical Workers Union on behalf of Skenjana & others and Allied Publishing & another (at 1929) the commissioner found that, although the client agreed to pay the placed employees at the same rate as its own employees, it was inappropriate for the commissioner to make an order prescribing working hours and work arrangements, particularly in circumstances where it was undisputed that there were historical reasons for the differences and the employer was actively engaged in trying to standardise terms and conditions of its workforce.

 

Costs

 

In Independent Municipal & Allied Trade Union v Ekurhuleni Metropolitan Municipality & others (at 1794) the Labour Court found that, where the issue referred for determination by the applicant union had been definitively determined by the Supreme Court of Appeal in 2001, there was no reason why the union should not be liable for costs, including those of counsel.  In Isaacs v Western Cape Department of Education & others (at 1803) the Labour Court awarded costs against the review applicant who had shown a pattern of disregard for the rules and practices of the court and the bargaining council and had pursued a meritless application despite a wellreasoned and reasonable award and a warning by the employer that it would apply for costs if he continued litigating. 

 

Practice and Procedure 

 

In Road Traffic Management Corporation v Tasima (Pty) Ltd (at 1785) the Labour Appeal Court found that, where it had granted leave to appeal to the Constitutional Court against a declaratory order, the Labour Court did not have the power under s 18(3) of the Superior Courts Act 10 of 2013 to order enforcement of both the declaratory order and an order for consequential relief not expressly ordered by the LAC. 

 

The Labour Court upheld a ruling of a bargaining council arbitrator refusing condonation of the late filing of an unfair dismissal dispute. It found that the arbitrator’s finding that the employee had not given a satisfactory explanation for the delay of 254 days and that his prospects of success were poor was reasonable — he had considered all relevant factors and the applicable jurisprudence, and had not acted arbitrarily or capriciously and had come to a conclusion that another arbitrator could reach (Isaacs v Western Cape Department of Education & others at 1803). 

 

The Labour Court confirmed, in National Union of Metalworkers of SA & another v BMW (SA) (Pty) Ltd (at 1818), that in the case of a dispute that is required to be referred for adjudication in terms of s 191(5)(b) of the LRA 1995 (as opposed to arbitration), s 191(11)(a) requires the dispute to be referred within 90 days of the issuing of a certificate of outcome, regardless of the date on which the 30-day period immediately following the date of referral of the dispute expired. In Osenton v Commercial Refrigeration Services (Pty) Ltd (at 1843) the court also had to consider the time-limit for referral of dismissal disputes for adjudication in terms of s 191(5)(b) read with s 191(11)(a). In this matter a certificate of outcome had not been issued, and the court confirmed that even where a certificate had not been issued the time period of 90 days in s 191(11)(a) applied once the period of 30 days had elapsed and the dispute remained unresolved. 

 

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