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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on the 'Women Empowerment and Gender Equality Bill'. The Bill aims to promote the empowerment of women and gender equality at the workplace and elsewhere, and it will have a significant impact.

We also look at four new cases: The first looks at how to establish whether an employment relationship exists for the purposes of the LRA. The second considers the impact of dishonesty and misrepresentation in an application for a job. The third case case highlights that it might be bad strategy not to oppose a review. The fourth case looks at when a judgment which has been taken on appeal, can be implemented immediately.

This public newsletter is a free edited version of the subscriber newsletter.


Ducking the employment relationship

Steenkamp J in the recent judgment in Universal Church of the Kingdom of God v CCMA & Others [2014] 3 BLLR 295 (LC) (28 November 2013), in deciding whether a pastor was an 'employee' of the church, had this to say:

". . .everything in this relationship looks like an employment relationship. If it looks like a duck, walks like a duck and quacks like a duck, it probably is one."

The facts of this dispute were that a pastor had signed a document stating that he was in the voluntary service of the church. When he referred an unfair dismissal dispute to the CCMA, the church argued that he was not an employee for the purposes of the LRA. Both the arbitrator and the Labour Court disagreed, having regard to section 200A of the LRA (Presumption as to who is an employee).

Before the enactment of section 200A in 2002, case law generally took the view that the 'core' duties of the clergy did not give rise to a contract of employment. Later cases have recognised that such parties may have entered into an employment relationship for the purposes of the LRA, even though there was no signed contract of employment. The court looks at the particular facts of each case, in the light of the provisions of section 200A, in deciding whether a person is an 'employee' for the purposes of the LRA. The above quote embodies a practical, common sense approach to deciding the matter. Parties having to argue similar cases would be wise to take this into account, despite attempts to 'dress up' an employment relationship as something else in a written agreement.

Dishonesty in the application process

In September 2006, the employee represented in his CV that his degree was complete when applying for a job. It later emerged that he had not even completed all the requirements for the Bachelor of Technology Marketing Degree, nor had the degree been conferred upon him. In fact he completed the degree at the end of 2008. The employee was charged with gross dishonesty, misrepresentation and a breach of the obligation of good faith, trust and confidence owed to the employer. The employee contended that he had disclosed to the interviewing panellists that he had not completed the degree, but was unable to explain why he misrepresented the factual situation in his CV. He challenged his dismissal at the bargaining council but the arbitrator found the dismissal to be fair.

The Labour Court did not uphold the arbitrator's award, finding that the evidence "indicates without doubt that the applicant indeed disclosed to the panellists that he did not have a Bachelor of Technology Marketing Degree".

The Labour Appeal Court in Department of Home Affairs and Another v Ndlovu and Others (DA11/2012) [2014] ZALAC 11 (27 March 2014) held there was no evidence on which the Labour Court could reach its conclusion, and held that the misrepresentation was so serious that dismissal was a fair sanction. In so doing the court confirmed this principle:

A misrepresentation by an employee (as to his qualification and skills etc.) before the commencement of employment is sufficient to warrant dismissal, even if it is discovered some time later and the employee has rendered satisfactory performance.

But there was another aspect of this case that should be noticed. Ever since the Edcon case, the courts have required, in addition to evidence of the actual misconduct, evidence that the employment relationship has broken down irrevocably and that the trust relationship was broken. In this case there was no such evidence. The LAC recognised that it is 'obligatory' that an employer should produce such evidence to justify a dismissal - unless of course that conclusion of a broken employment relationship is apparent from the nature of the offence and/or the circumstances of the dismissal.

This is a dramatic and maybe unintended remark by the LAC which is bound to be used in both arbitrations and in the Labour Court, when evidence about the intolerability of an ongoing relationship has not been established. To us it is a sensible development to recognise that some misconduct in itself makes an on-going relationship intolerable.

Can you appeal a review decision if you did not oppose the matter?

An employee, who had been successful in arbitration, did not oppose the matter when the employer took the arbitration award on review. When the employer was successful in the Labour Court, the employee applied for leave to appeal the default judgment.

The Labour Court, in Sun International (Pty) Ltd t/a Table Bay v CCMA (C 636/2012) [2013] ZALCCT 46 (12 January 2013) held that the employee had no right to seek leave to appeal in these circumstances. He had chosen not to oppose the proceedings at the relevant time when the application for review was argued. He cannot afterwards ask the Court for leave to go to the Labour Appeal Court, when it turns out that his choice not to oppose the matter in Labour Court has had adverse consequences for him.

This decision creates certainty on two points:

First, where a party to a review in the Labour Court chooses not to oppose the proceedings and the review upholds the applicant's case, the respondent cannot thereafter apply for leave to appeal.

Second, a default judgement (ie a judgement given in the absence of the respondent) is not a final judgment and cannot in any event be appealed in terms of the court rules. The correct remedy is to apply for rescission of the judgment, if proper grounds exist to do so.

When can a judgment on appeal be implemented immediately?

If a court judgment is taken on appeal, this normally has the effect of suspending its application pending the outcome of the appeal. But in Solidarity v Department of Correctional Services and Others (C368/12, C986/12,) [2014] ZALCCT 4 (6 February 2014), an application was made to the High Court to implement a court order pending appeal. The Labour Court had made this order:

"The first respondent [the Department of Correctional Services] is ordered to take immediate steps to ensure that both national and regional demographics are taken into account in respect of members of designated groups when setting equity targets at all occupational levels of its workforce".

The applicant, Solidarity, appealed against portions of that judgment. The Department cross-appealed. Solidarity sought an undertaking from the Department that it would, in the interim, give effect to the judgment, especially in the process of interviews and appointments to positions affecting the individual applicants and the filling of 195 new positions advertised in the press. The Department refused.

Solidarity launched an urgent application, asking the Court to implement the judgment pending the appeal and cross-appeal. The Labour Court held that the balance of convenience favoured Solidarity. The court held that there can be no prejudice, much less irreparable harm, to the Department, were it to take both national and regional demographics into account in any appointments pending appeal.

The court confirmed that the basic principle is that the effect of a court judgment is suspended pending appeal. But rule 49(11) of the High Court rules makes provision for the court to direct otherwise.

In exercising the discretion whether to implement the order pending the appeal, the court must normally have regard to these factors:

  1. the potential for irreparable harm or prejudice being caused to either party, if the judgment is implemented pending the outcome of the appeal;
  2. b. the parties' prospects of success on appeal, including whether the appeal is frivolous or vexatious or has been made not with the bona fide intention of seeking to reverse the judgement but for some indirect purpose, eg to gain time or harass the other party; and
  3. if there is the potential for irreparable harm and prejudice to both appellant and respondent, where the balance of hardship or convenience lies, as the case may be.


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Bruce Robertson
April 2014
Copyright: Worklaw