INDEX OF NEWSFLASHES

 
   
October   2017 The cost of an hour's strike
An hour's unprotected strike in 2010 led to employees' dismissal. 7 years later the LAC in SACCAWU obo Mokebe & Others v Pick 'n Pay Retailers has ordered their retrospective reinstatement. This case is an interesting case study.

 
September   2017 Employer's obligation to provide pregnant employees suitable alternative work
Impala Platinum v Jonase & Others (LC) deals with alleged unfair discrimination against a mining company for not guaranteeing suitable alternative work for underground miners who fall pregnant.

 
August   2017 Challenging the fairness of retrenchment criteria
The employer in Kenco Engineering v NUMSA obo members (LAC) used skills, work performance, attendance and safety records as selection criteria for retrenchment. The union argued that LIFO should have been used.

 
July   2017 LAC decides 'deemed' employer status
The LAC in NUMSA v Assign Services and Others settles the debate over interpreting s198A(3)(b)(i), which provides that a labour broker's employee is deemed the client's employee when not employed in a 'temporary service'.

 
June   2017 Using replacement labour during strikes and lockouts
In Sun International Ltd v SACCAWU (LAC) the employer appealed against the LC decision that replacement labour could not be used during a lockout once the strike was over.

 
May   2017 Remedying the situation when everything goes wrong
The LAC in IDWU obo Linda & Others v Super Group outlines how to review a matter when there is no record of proceedings, and reminds us of factors to consider in deciding sanction.

 
April   2017 Defining the 'workplace' in the context of inter union rivalry
The Constitutional Court in AMCU & Others v Chamber of Mines of SA & Others provides guidance on what constitutes the "workplace" for the purposes of the LRA.

 
March   2017 Collective Bargaining and Industrial Action Accord and Draft Code
The Nedlac Accord on Collective Bargaining and Industrial Action and a Draft Code of Good Practice have recently been made public. This newsflash discusses their content and possible significance.

 
February   2017 More on 'Deeming' and its complications
The recent award in United Chemical Industries Mining Electrical State Health & Aligned Workers Unions obo Mbombo / Primeserv highlights complications arising from a TES employee being deemed a client's employee.

 
January   2017 Discrimination on Disability
The LC in Smith v Kit kat Group had to decide whether the employer discriminated against an employee based on a disability caused by an attempted suicide.

 
December   2016 Managing shop stewards
The LAC in SAMWU & Others v Ethekwini Municipality & Others considers the potential conflict between the role of a shop steward and still being an employee.

 
November   2016 Derivative misconduct taken too far?
The LC in Dunlop Mixing & Technical Services & Others v NUMSA obo Nganezi & Others applies derivative misconduct in the strike context.

 
October   2016 Contract employees' rights to become permanent
Lolla's Caregiving Agency v Ashley Louw & Others(LC) deals with a claim by a FTC employee to be deemed permanent under s198B of the LRA.

 
September   2016 Retrenchment consultations - what's required?
The recent LAC judgment in Standard Bank of SA v Letsoalo considers what constitutes proper consultation under s189 of the LRA.

 
August   2016 SABC - speak no evil, hear no evil
Solidarity & Others v SABC (LC) has attracted much publicity. It looks at the lawfulness of the dismissal of 4 journalists, as opposed to whether they were fair.

 
July   2016 Can a refusal to obey instructions be a strike?
Mndebele & Others v Xstrata (LAC) raises interesting strike-related issues: is a refusal to obey instructions a strike? What form can ultimatums take? What makes a dismissal for striking fair?

 
June   2016 Beware inconsistency
Drawing on the recent LAC judgment in Ethekwini Municipality v Hadebe & Others we develop clear guidelines assisting employers to act consistently in disciplinary proceedings.

 
May   2016 Sexual harassment at the workplace
The recent LAC judgment in Campbell Scientific Africa v Simmers & Others should warn employees that sexual advances at the workplace may be judged harshly by the courts.

 
April   2016 Racism at the workplace
City of Cape Town v Freddie and Others (LAC ) focuses on racism at the workplace, providing guidelines on free speech and unacceptable conduct.

 
March   2016 When is arbitrary discrimination unfair?
The LC in Duma v Minister of Correctional Services & Others sheds some light on the new "arbitrary grounds" for unfair discrimination under the EEA, but also muddies the waters.

 
February   2016 CC says 'no' to invalid retrenchments
The Constitutional Court in Steenkamp and Others v Edcon has shut the door on the debate as to whether an unprocedural retrenchment is 'invalid' rather than unfair.

 
December   2015 More on union accountability for unprotected strikes
Verulam Sawmills v AMCU & Others takes a further look at trade union accountability for their members' conduct during industrial action.

 
November   2015 Can parties contract out of the LRA?
Mwelase & Others v Enforce Security & Others LC considers whether parties to an employment contract can contract out of unfair dismissal rights in the LRA.

 
October   2015 Befuddling labour law amendments
The recent review judgment in Assign Services v CCMA & Others on 'deeming' does little to clarify recent labour law amendments.

 
September   2015 Does changing service providers trigger s.197?
SATAWU & Another v MEC: Gauteng for Roads & Transport & Others(LC ) considers whether changing service providers constitutes a 'transfer as a going concern' under s.197.

 
August   2015 'Lay off' by labour broker constituting dismissal
Kelly Industrial Ltd v CCMA & Others(LC) highlights that the practice by labour brokers to 'lay off' employees without pay when between assignments, will not go unchallenged.

 
July   2015 Union liability for unprotected strikes
The LC in Algoa Bus Company v Transport Action Retail And General Workers Union awarded the employer R1,4 million damages against the Union and its members following an unprotected strike.

 
June   2015 New Code- 'Equal pay for equal work'
We discuss the new Code of Good Practice gazetted on 1 June 2015 on Equal Pay / Remuneration For Work Of Equal Value.

 
May   2015 More on s.197 transfers
Employer responses to the LRA's new s198A-D must take into account CWU & others v MTN & Another (LAC) that sheds further light on what constitutes a transfer under s197.

 
April   2015 Enforcing settlement agreements
The LAC in PSA obo Members v Gwanya NO & Another considers the pitfalls in trying to enforce a settlement agreement as an order of court.

 
March  2015 New CCMA Rules and Guidelines
The CCMA has updated its Rules and Guidelines on Misconduct Arbitrations. We summarise the key changes resulting from these amendments.

 
February   2015 SONA on labour legislation
The Presidency released a statement following the President's recent State of the Nation Address (SONA), clarifying what he said about labour legislation developments.

 
January   2015 12 Key Questions - new LRA
We answer the 12 most important questions arising from the new 'non standard' employment provisions of the amended LRA.

 
December   2014 Paying full time shop stewards during a strike?
The LAC recently in Ekurhuleni Municipality v SAMWU overturned a 2012 LC judgment that found full-time shop stewards were entitled to be paid during a strike.

 
November   2014 Can a Union strike over demands for organisational rights outside its scope?
Recent developments suggest employers will face increasing pressure from unions competing for membership, and work stoppages often result. Given this scenario, Bidvest Food Services v NUMSA & Others offers little comfort. The LC had to consider whether a union could strike over demands for organisational rights in a sector outside the scope of the union's constitution.

 
October   2014 Employer liable for damages
The SCA in MEC for the Department of Health v D recently confirmed that an employee who was raped by an intruder whilst on duty, is not precluded by COIDA from suing her employer for damages.

 
September   2014 How much advice should an arbitrator give parties?
The LC in Anglo Operations Ltd (Kriel Colliery) v CCMA & Others considered whether an arbitrator has a duty to assist parties in presenting their cases. It also revisits the effect of inconsistency in treating similar cases.

 
August   2014 LRA Amendment Act summary
The final version of the long debated LRA amendments has been published. We provide a comprehensive summary of the amendments.

 
July   2014 Tokiso's 2014 Dispute Resolution Digest
Tokiso's Dispute Resolution Digest is published annually and reports on the state of labour dispute resolution in SA. It is essential reading for practitioners. We discuss key findings from this year's Digest.

 
June   2014 Do strikers accrue leave?
Hot on the heels of the settlement of the platinum strike, we discuss whether workers accrue leave or are entitled to public holiday pay whilst on strike.

 
May   2014 Polygraphs fail the test?
DHL Supply Chain v Beer N.O. & Others (LAC) revisits the question of polygraph evidence. It will have employers scratching their heads about how to combat stock theft.

 
April   2014 When does union activity overstep the mark?
The recent judgment in NUPSAW & Others v National Lotteries Board required the Constitutional Court to consider the limits of legitimate union activity. At what stage do aggressively stated demands constitute insubordination and disrespectful behavior?

 
March   2014 Demands to change the contract - automatically unfair?
The recent LAC judgment in Solidarity obo Wehncke v Surf4Cars deals with automatically unfair dismissals caused by demands to change employment conditions. The LRA amendments will soon alter these sections. We discuss the implications.

 
February   2014 When is accrued leave forfeited?
Do employees, having not taken leave for many years, have a right on termination to be paid out this leave or is it forfeited? See the LC judgment in Ludick v Rural Maintenance

 
January   2014 EEA and BCEA Amendments
Substantial labour law amendments are in the pipeline. We discuss the key amendments to the EEA and BCEA, which were passed recently. Their implementation dates have yet to be anounced

 
December   2013 Criteria for affirmative action appointments
The case of Captain Barnard, a white woman twice refused promotion by the SAPS for affirmative action reasons, has recently attracted much publicity.

 
November   2013 EEA: national vs regional demographics
Should regional or national demographics be used as employment equity measures ? The Labour Court grappled with this in Solidarity & Others v Dept. of Correctional Services & Others.

 
October   2013 Constitutional Court holds union liable
The Constitutional Court recently in FAWU v Ngcobo N.O. and Another held the union liable for failing to lodge members' claims within the LRA's time limits. This landmark decision has serious implications for how unions provide services to their members.

 
September   2013 Lawyers at the CCMA - yes/no?
The SCA has handed down judgment in CCMA v Law Society, Northern Provinces, dealing with the constitutionality of the CCMA's rule 25(1)(c). This rule limits the right to legal representation in CCMA arbitrations about misconduct or incapacity dismissals.

 
August   2013 Counterclaims for damages against dismissed employees
The recent LAC judgment in Rand Water v Stoop & another deals with an employer's right to counterclaim for damages from an employee challenging the fairness of a dismissal.

 
July   2013 Employer's right to transfer: LAC muddies the waters?
Employers' rights to transfer employees and employees' rights to resist this, are not clear in the LRA. Read the LAC's views on transfers in Minister of PSA & Another v Kaylor

 
June   2013 Tokiso's 2013 Dispute Resolution Digest
Tokiso's Dispute Resolution Digest is published annually and reports on the state of labour dispute resolution in SA. It is essential reading for practitioners. We discuss key findings from this year's Digest.

 
May   2013 Dismissing protected strikers automatically unfair
The LC judgment in SATAWU obo Rune v Bosasa Security is a reminder of the status of protected strikes. Despite the employer describing the employees' conduct as 'absent without permission', the LC ruled that the true reason for dismissal was their participation in a protected strike.

 
April   2013 Fine time for unions?
The Labour Court in In2FOOD (Pty) Ltd v FAWU and others has fined the union half a million rand for not complying with an interdict and not doing more to curtail a violent, unprotected strike by its members.

 
March   2013 Watershed for bargaining councils?
The High Court recently in Valuline & others v Minister of Labour & others overturned the Minister's extension of a bargaining council agreement to cover 'non parties'. We discuss the judgment's impact on bargaining councils.

 
February   2013 Applying section 189A - retrenching lawfully and fairly
The LAC in Revan Civil Engineering Contractors & others v NUM & others recently dealt with a retrenchment in breach of s.189A of the LRA. The LAC adopted a 'two tier' approach, requiring the dismissals to firstly be lawful and only then to consider fairness.

 
January   2013 Calculating compensation - guidelines
Abritrators deciding on what compensation to award have a difficult task. The LRA requires compensation to be "just and equitable". The LC in Plasticwrap - A Division of CTP Ltd v Statutory Council for the Printing, Newspaper & Packaging Industry & others (2012) 33 ILJ 2668 (LC) had to apply this.

 
November   2012 Criteria for affirmative action appointments
The recent LAC judgment in South African Police Services v Solidarity obo Barnard (JA24/2010) [2012] ZALAC 31 (2 November 2012) has provided greater clarity on criteria to be applied in making affirmative action appointments.

 
October   2012 Traditional healers' sick certificates
The recent LAC judgment in Kievits Kroon Country Estate v Mmoledi & others has again brought under the spotlight sick certificates issued by traditional healers.
 
September   2012 Lessons from Marikana
Since Marikana, unprotected strike action has spread across the mining industry, and strikes are taking place elsewhere. We are currently in the middle of a violent legal strike in the road freight transport sector. We attempt to draw some learnings from these events.
 
August   2012 Strike violence: A suggested legislative response
The recent tragic events at Marikana mine are a stark reminder of how volatile our labour relations are. Violence accompanying strikes serously threatens our labour relations system and broader society. In this newsflash we focus on the extent to which our labour legislation meaningfully addresses strike related violence.
 
July   2012 What happens when you don't have direct evidence?
What happens when you dont have a witness who saw the misconduct, but the circumstances infer certain employees committed the offence? What constitutes 'circumstantial evidence' and what is the test to use it as proof? These issues were considered by the LC in POPCRU obo Ndokweni v Maritz NO and Others.
 
June   2012 Zero tolerance for zero tolerance?
In two review decisions, the Labour Court considered alcohol related cases involving employees dismissed under a 'zero tolerance approach' to such misconduct. In both cases, the employee was reinstated at arbitration; and in both cases, the arbitrator's decision was upheld on review by the Court.
 
May   2012 New BCEA earnings threshold and war on labour brokers heats up
The BCEA earnings threshold has been increased from 1 July 2012. This is important for the recent LRA Bill covering labour brokers, fixed term contracts and part time employees. Blade Nzimande has also warned of government not doing business with companies using labour brokers.
 
April   2012 2012 LRA and BCEA Amendment Bills
This newsflash aims to inform Worklaw subscribers of the more important aspects of these draft amendments. Whilst the major focus is labour broking, many other issues have also been dealt with. We have tried to resist (not always successfully) commenting overtly on the merits of the proposed amendments, and our intention at this stage is to give subscribers a factual summary of the key changes.
 
March   2012 Analysis of Tokiso's 2012 Dispute Resolution Digest
The Tokiso Dispute Resolution Digest is published annually and is a report on the state of labour dispute resolution in South Africa. It is essential reading for all practitioners in this field. Tokiso has kindly agreed to Worklaw using information from the 2012 Digest for this newsflash, which contains a summary of some of its key observations.
Contributors to the 2012 Digest included Steven Friedman, Andrew Levy, Alan Rycroft and Tanya Venter.
 
February   2012 February 2012 Newsflash
 
January   2012 January 2012 Newsflash
 
December   2011 December 2011 Newsflash
 
November   2011 November 2011 Newsflash
 
October   2011 October 2011 Newsflash
 
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August   2011 August 2011 Newsflash
 
July   2011 July 2011 Newsflash
 
June   2011 June 2011 Newsflash
 
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January   2011 January 2011 Newsflash
 
November   2010 November 2010 Newsflash
 
October   2010 October 2010 Newsflash