CASE LAW UPDATE

Facts: Skhosana (applicant) referred a dispute to the CCMA concerning the interpretation or application of a collective agreement (Recognition Agreement) between Eskom and several unions, of which he was a member. Eskom argued that, as a non-shop steward, Skhosana lacked standing to individually raise such a dispute. The commissioner agreed and dismissed the case for lack of jurisdiction. Skhosana applied to review this ruling, arguing that the commissioner erred in interpreting sections 24(2) and 24(5) of the Labour Relations Act 66 of 1995 (LRA). The dispute stemmed from Eskom's refusal to grant Skhosana "trade union leave" to file documents at the Labour Court in a separate case he was pursuing against Eskom.

Issue: The main issue was whether the commissioner's ruling that Skhosana lacked standing to refer a dispute about the collective agreement was correct. This involved interpreting sections 24(2) and 24(5) of the LRA and determining whether an individual union member could refer such a dispute. A secondary issue was the interpretation of the trade union leave provisions of the Recognition Agreement and Eskom's Disciplinary Code.

Discussion: The court analyzed the commissioner's reasoning and considered conflicting case law regarding individual standing in collective agreement disputes. The court discussed cases like Arends and Others v SA Local Government Bargaining Council and Others (2015) 36 ILJ 1200 (LAC), South African Police Services v Du Preez and Others [2019] ZALCPE 3, which present different views on whether individual employees can refer disputes about the interpretation or application of collective agreements. The court examined the text of section 24 of the LRA, which distinguishes between "parties to a collective agreement" and "parties to a dispute." The court also analyzed the specific provisions of the Recognition Agreement, and the Disciplinary Code relied upon by Skhosana to support his claim for trade union leave.

Findings: The court found that the commissioner erred in ruling that Skhosana lacked standing. The court held that an individual employee is not automatically precluded from referring a dispute about the interpretation or application of a collective agreement. The court disagreed with the reasoning in Arends and Du Preez and followed the approach in Skulpad and Another v Department of Health Eastern Cape and Others [2024] ZALCPE 45. However, despite finding that Skhosana had standing, the court analyzed the relevant provisions of the Recognition Agreement and the Disciplinary Code and concluded that Skhosana's interpretation of these provisions was incorrect. The court found that he was not entitled to trade union leave under the circumstances. Although the court found that the commissioner's ruling on standing was incorrect, it ultimately concluded that Skhosana's claim for trade union leave lacked merit.

Order: The application was dismissed.

Facts: Couto (applicant) applied to review and set aside a CCMA arbitration award that found he was not an employee of NASA Engineering (third respondent). Couto argued he was an employee and thus the CCMA had jurisdiction to hear his unfair dismissal claim. The company argued he was an independent contractor. A postponement application by the company was dismissed due to lack of diligence.

Issue: The primary issue was whether Couto was an employee of the company, thereby conferring jurisdiction on the CCMA to hear his unfair dismissal claim. A related issue was whether the referral to the CCMA was premature.

Discussion: The court analyzed the relationship between Couto and the company, considering the "substance over form" principle. The court examined the written agreement, the invoicing system, the control exerted by the company over Couto, his integration into the company’s operations, and his economic dependence on the company. It scrutinized the company’s claims about the unsigned contract, the invoicing arrangements, and the reasons for terminating Couto’s services. The court also considered the timing of the referral to the CCMA in relation to the termination notice and Couto’s last day of service.

Findings: The court found that Couto was an employee of the company. Couto was engaged on terms (in writing and in practice) typical of an employment relationship. Despite the invoicing system and the fact that the written contract was not signed, the evidence pointed towards an employment relationship. The court emphasized the company’s control over Couto, his integration into the company, and his economic dependence. The court also found that the referral to the CCMA was not premature, as Couto’s last day of service was deemed to be his date of dismissal.

Order: The court dismissed the company’s postponement application with costs. The review application was granted, and the arbitration award was reviewed and set aside. The court substituted the award with a finding that Couto was an employee of the company, and the CCMA had jurisdiction to hear the unfair dismissal dispute. The matter was remitted to the CCMA for a hearing on the merits of the unfair dismissal claim before a different arbitrator.

Facts: Seven employees (plaintiffs), formerly employed by Brakpan and Kempton Park Town Councils, which later became part of the Ekurhuleni Metropolitan Municipality (defendant), claimed contractual damages related to transport allowances. They argued their conditions of employment were "contractual to incumbent," meaning benefits couldn't be diminished. After the amalgamation, the municipality adjusted the transport allowance differently than previously, which the plaintiffs allege constituted a breach of contract and caused them damages. The plaintiffs relied on section 77 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) for jurisdiction.

Issue: The central issue was whether the Labour Court had jurisdiction to hear the plaintiffs' claim. The defendant argued that the dispute concerned the interpretation, application, or enforcement of a collective agreement, which should be resolved through arbitration, not court action, as per section 157(5) of the Labour Relations Act 66 of 1995. A related issue was whether resolutions of the SALGBC, specifically those of the Executive Committee, were binding and applicable to the plaintiffs' situation.

Discussion: The court analyzed the history of the transport allowance scheme, including its initial link to AA tables and subsequent modifications. It examined the collective agreements and resolutions of the SALGBC, considering the authority of the Executive Committee to amend Central Council resolutions. The court discussed the interplay between individual contracts and collective agreements and referenced case law (Ekurhuleni Metropolitan Municipality v SAMWU on behalf of members (2015) 36 ILJ 624 (LAC) and Rukwaya and others v Kitchen Bar Restaurant (2018) 39 ILJ 180 (LAC)) which established that the Labour Court lacks jurisdiction when the dispute arises from or relates to the enforcement of a collective agreement. The court emphasized that the plaintiffs' claim, while framed as a breach of contract, essentially concerned the interpretation and application of collective agreements and resolutions of the Bargaining Council.

Findings: The court found that the plaintiffs' claim, although framed as a contractual dispute, actually concerned the interpretation and application of collective agreements and resolutions of the SALGBC. Because the dispute related to a collective agreement, the court held that it lacked jurisdiction to hear the matter. The court determined that the proper avenue for the plaintiffs was to refer the dispute to the Bargaining Council for resolution through its dispute processes, including arbitration under section 33A of the LRA.

Order: The plaintiffs' application was struck from the roll due to the Labour Court's lack of jurisdiction. No order as to costs was made.

Facts: Malema (the applicant) was dismissed by Bradlows following a disciplinary hearing where he was found guilty of attempted assault. Malema referred an unfair dismissal dispute to the CCMA, along with a condonation application for the late referral. Due to an administrative error, the CCMA allocated two case numbers to the same dispute. Commissioner Martin denied Malema’s condonation application under case number GAEK 4556-21, effectively closing the file. However, under case number GAEK 5443-21, Commissioner Magakwe granted condonation, leading to a con-arb process. Bradlows objected, and the matter was set down for arbitration before Commissioner Makwela, who ruled that the CCMA lacked jurisdiction due to the doctrine of res judicata, as the matter had already been decided by Commissioner Martin.

Issue: The key issue was whether the CCMA had jurisdiction to determine Malema’s unfair dismissal dispute, given that the same dispute had already been adjudicated under a different case number, and whether the doctrine of res judicata applied.

Discussion: The court evaluated whether Commissioner Makwela’s ruling was correct in applying the doctrine of res judicata. The court found that the CCMA had erroneously allocated two case numbers to the same dispute, and Commissioner Martin’s ruling, which denied condonation, had brought finality to the matter. Commissioner Magakwe’s subsequent ruling granting condonation under a different case number was therefore invalid, as the matter had already been decided. The court emphasized that the principle of res judicata prevents the same dispute from being adjudicated twice. The court also noted that the correctness standard, rather than the reasonableness standard, applied to jurisdictional rulings.

Findings: The court found that Commissioner Makwela was correct in ruling that the CCMA lacked jurisdiction due to the doctrine of res judicata. The matter had already been finally determined by Commissioner Martin’s ruling, and the CCMA could not adjudicate the same dispute twice. The court dismissed Malema’s review application, upholding the principle of finality in litigation.

Order: The review application was dismissed. There was no order as to costs.

Facts: Eagles Pride Hatchery sought to interdict a strike by the South African Clothing and Textile Workers’ Union and its members. The union had initially agreed not to strike pending CCMA facilitation under section 150(1) of the Labour Relations Act 66 of 1995. A substantive wage agreement had been concluded between the parties, but the union argued that their bonus demand was not covered by this agreement and remained a live issue. The applicant contended that the bonus demand was part of the settled agreement. After the CCMA process failed to resolve the bonus dispute, the union indicated its intention to ballot members and potentially strike.

Issue: The central issue was whether the union's bonus demand was substantively regulated by the existing collective agreement, thereby precluding a protected strike. Related issues included whether the union had given an unconditional undertaking not to strike and whether the union had complied with procedural requirements for a strike.

Discussion: The court analyzed the “unitary approach” to contractual interpretation, emphasizing the importance of context and surrounding circumstances. It examined the parties' communications and actions during negotiations, noting the union's consistent reservation of the bonus demand and the applicant's acknowledgment of the dispute. The court rejected the applicant's argument that the "full and final settlement" clause in the substantive agreement covered the bonus demand, finding that the evidence demonstrated the parties' intention to exclude it. The court also considered the union’s compliance with the dispute resolution procedures in the recognition agreement and section 64 and 150 of the LRA, and the union's undertaking not to strike was conditional, pending the outcome of the section 150(1) proceedings.

Findings: The court found that the bonus demand was not substantively regulated by the collective agreement, as it was expressly excluded by the union and never agreed upon. The respondent gave no general undertaking not to strike as alleged by the applicant, instead, it gave an undertaking not to strike pending the finalisation of the CCMA proceedings. This was clear from the correspondence between the parties. The court held that the union had substantially complied with the procedural requirements for a protected strike. It also found that the union’s undertaking not to strike was conditional, not absolute.

Order: The court dismissed the application to interdict the strike. Leave was granted to file the supplementary affidavit but leave to amend the notice of motion was denied. The application was heard as urgent.

Facts: SAMWU, on behalf of 16 employees, applied to review an arbitration award. The employees, initially employed on two-year fixed-term contracts with Rand West City Municipality, claimed they were unfairly dismissed when their contracts were not renewed. The municipality argued the contracts simply expired. Discrepancies existed regarding the termination date of the contracts, with the employees initially claiming a June 2021 end date, later amended to September 2019. The date of the referral to the bargaining council was also in question.

Issue: The primary issue was whether the bargaining council had jurisdiction to arbitrate the dispute. This hinged on determining the correct date of dismissal and whether the referral to the council was timeous. A secondary issue was whether the commissioner exceeded his powers by arbitrating a dispute where jurisdiction was questionable.

Discussion: The court focused on the date of dismissal as crucial for establishing jurisdiction. It examined the conflicting evidence regarding contract end dates and the date of referral. The court noted that the employees’ evidence about the contract end date changed, and that the referral form and certificate of non-resolution contained different dates. The court analyzed the evidence of the municipality’s witness, which revealed that the employees were informed in June 2019 that their existing contracts would not be renewed and were offered less favourable three-month extensions. The court discussed the legal principles surrounding fixed-term contract renewals and the determination of the date of dismissal in such cases. It emphasized that the bargaining council cannot determine its own jurisdiction, and that this is a matter for the Labour Court to decide.

Findings: The court found that the actual date of dismissal, for the purposes of section 190(2)(a) of the Labour Relations Act 66 of 1995, was 27 June 2019, when the employees were informed their existing contracts would not be renewed and were offered less favourable terms for a three-month extension. This was based on the evidence of the municipality’s witness. Because the referral to the bargaining council occurred more than 90 days after this date, the court held that the referral was late, and the council lacked jurisdiction to arbitrate the dispute. The court concluded that the commissioner acted ultra vires by arbitrating a dispute where jurisdiction was lacking.

Order: The arbitration award was reviewed and set aside. The court declared that the bargaining council lacked jurisdiction to arbitrate the dispute due to the late referral. There was no order as to costs.

Facts: NUMSA, on behalf of its dismissed members, brought a claim against M&S Corrosion Sasolburg, alleging unfair dismissal. The applicants were dismissed after participating in an unprotected strike, which they claimed was a protected protest march under the Gatherings Act. Their grievances stemmed from alleged non-compliance with retrenchment procedures, non-payment of leave and other benefits, and improper deductions. The respondent argued that the employees were informed the strike was unprotected and that they were given ultimatums to return to work.

Issue: The central issue was whether the dismissal of the applicants was substantively fair, specifically focusing on whether the respondent issued a proper ultimatum to the striking employees and whether dismissal was an appropriate sanction for their participation in the unprotected strike.

Discussion: The Code affirms earlier law where the illegality of the strike did not automatically result in the dismissal of unprotected strikers. See, for example, Betha v BTR Samcol (1998) 19 ILJ 459 (SCA). The key question was whether dismissal was justified. The applicants contended that the respondent was required to apply progressive discipline. The applicants participated in an unprotected strike action and refused to report for duty despite being instructed to do so. That was clear misconduct. They acted in clear breach of the Labour Relations Act 66 of 1995 in striking because they were informed of the date of the meeting which was to take place between their union representatives and the respondent to resolve whatever issues that they had with the respondent. The applicants chose to run to the EFF abandoning their union officials. They applicants had alternative remedies in terms of the LRA. They were given an ultimatum to return to work the following day. They had sufficient time to reflect. Despite all this they chose to proceed with the unprotected strike. They committed a misconduct which is of a kind sufficiently serious to place in the realm of a dismissible offence.

Findings: There was no alternative sanction to dismissal. The court found that, despite conflicting testimony, the respondent had issued a verbal ultimatum to the shop stewards, which constituted a proper ultimatum for the purposes of the Code. The court rejected the applicants’ contention that they did not receive a proper ultimatum. Further, the court determined that the employees' conduct, including their participation in the unprotected strike after being warned and having prior warnings for similar offenses, constituted serious misconduct justifying dismissal. The court concluded that the dismissal of the applicants was substantively fair.

Order: The applicants' claim was dismissed, and no order as to costs was made.

Facts: The applicant, Maqengu, was dismissed by the respondent, Servest, for operational requirements. He sought relief from the Labour Court, claiming his dismissal was substantively and procedurally unfair, and that he was unfairly discriminated against. The applicant also sought severance pay, compensation, and costs. The respondent opposed the referral, arguing that the dismissal was fair and that the applicant had abandoned his unfair discrimination claim at the start of the trial. The applicant had been employed as a senior Safety Health Environmental Quality (SHEQ) officer and had acted as National SHEQ Manager for 20 months, receiving an acting allowance. The respondent restructured its SHEQ division, leading to redundancies, and offered the applicant an alternative role, which he refused due to the loss of his acting allowance.

Issue: The main issue was whether the applicant’s dismissal for operational requirements was substantively and procedurally fair, and whether the applicant was entitled to the relief sought, including severance pay and compensation.

Discussion: The court found that the respondent had consulted with the applicant and other employees about the restructuring, including the rationale and selection criteria. The applicant was offered an alternative role, which he refused because it did not include his previous acting allowance. The court rejected the applicant’s claims that the consultation process was unfair and that the selection criteria were inappropriate. The applicant’s version of events was inconsistent and not put to the respondent’s witness, Ms. Masuku, during cross-examination, which weakened his case. The court also found that the applicant’s claim was frivolous, as he had conceded that he would have accepted the alternative role if his salary had been higher.

Findings: The evidence before the court, documentary and oral, inclusive of the concessions by the applicant, overwhelmingly proved on a balance of probabilities, that the dismissal of the applicant was substantively and procedurally fair. The respondent had followed the correct procedures under section 189 of the Labour Relations Act 66 of 1995 (LRA), and the applicant’s refusal to accept a reasonable alternative role justified his dismissal. The court also found that the applicant’s claim was frivolous and that his conduct warranted an order for costs.

Order: The referral was dismissed. The applicant was ordered to pay the costs of the referral.

Facts: The case involves Fempower Personnel (applicant) and Pule Tlale (employee), who was dismissed for gross negligence after exceeding the required 5-metre cut while working at Sasol’s site. The employee challenged the dismissal, claiming inconsistency in the application of the rule, as other miners who also exceeded the limit were not disciplined. The commissioner for the CCMA found the dismissal procedurally fair but substantively unfair, awarding the employee compensation. The compensation amount was initially calculated incorrectly and later varied, resulting in a final award of R214,143.48. The applicant sought to review this decision, arguing that the commissioner erred in his findings and the compensation awarded.

Issue: The main issue was whether the commissioner’s arbitration award and subsequent variation ruling were reasonable and lawful, particularly regarding the finding of substantive unfairness due to inconsistency in applying workplace rules and the appropriateness of the compensation awarded.

Discussion: The applicant argued that the commissioner failed to consider its submissions, relied on hearsay evidence, and applied the wrong test for inconsistency. The employee contended that the rule was inconsistently applied, as other miners who exceeded the 5-metre cut were not disciplined. The commissioner found that the employee’s dismissal was substantively unfair due to this inconsistency and awarded six months’ compensation. The applicant challenged this, arguing that the compensation should have been limited to the remaining period of the employee’s fixed-term contract.

Findings: The court found that the commissioner’s decision on inconsistency was reasonable, as the employee provided credible evidence that the rule was inconsistently applied, and the applicant failed to rebut this. However, the court held that the commissioner erred in awarding six months’ compensation, as the employee’s fixed-term contract had only one month remaining at the time of dismissal. The court found that the compensation should have been limited to the actual loss of income, which was one month’s salary.

Order: The arbitration award and variation ruling were reviewed and set aside. The dismissal was found to be procedurally fair but substantively unfair. The applicant was ordered to pay the employee one month’s salary (R32,969.64) as compensation within 30 days.

Facts: Zwane was dismissed from his position as Chief Financial Officer at the University of South Africa (UNISA). UNISA argued that Zwane's dismissal was subject to a private arbitration agreement, and therefore the CCMA lacked jurisdiction to hear his unfair dismissal claim. A prior private arbitration had taken place, but the award was not placed before the CCMA. Zwane disputed the validity of the arbitration agreement and claimed he participated in the private arbitration under duress. The CCMA commissioner found in favour of Zwane, ruling that UNISA had not established res judicata and that the CCMA had jurisdiction.

Issue: The central issue was whether the CCMA had jurisdiction to hear Zwane's unfair dismissal claim. This depended on whether a valid private arbitration agreement existed between UNISA and Zwane, and whether the prior private arbitration barred the CCMA from hearing the matter based on the principle of res judicata.

Discussion: The court reviewed the CCMA proceedings, noting that UNISA had multiple opportunities to provide evidence of the arbitration agreement and the private arbitration award, but failed to do so. The court emphasized that while it could consider evidence outside the CCMA record, UNISA's additional submissions did not include the necessary documents. The court discussed the requirements for res judicata, including a final judgment from a competent tribunal, the same parties, and the same cause of action. It analyzed the standard of review for jurisdictional rulings, which is correctness, not reasonableness. The court emphasized that the CCMA's jurisdiction depends on the objective facts and the material before the commissioner.

Findings: The court found that UNISA failed to establish res judicata because it did not provide sufficient evidence of a valid private arbitration agreement or the private arbitration award to the CCMA. Without this evidence, the court could not conclude that the prior arbitration finally determined the matter. Therefore, the court upheld the CCMA's ruling that it had jurisdiction to hear Zwane's unfair dismissal claim.

Order: The review application was dismissed. No order as to costs was made.