Public Newsletter


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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 which looks at provocation as a factor in assault cases, in light of a recent Labour Court judgment. We also discuss three new cases: The first case investigates how to calculate the length of service for severance pay for employees retrenched after reaching retirement age. The second case had to decide when the employer can interfere with the decision of the chairperson in a disciplinary case. The third case asks when does an accident arise 'out of employment' under COIDA?

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


Calculating severance pay for employees after retirement

In Barrier v Paramount Advanced Technologies (Pty) Ltd (JA35/2020) [2021] ZALAC 6; (2021) 42 ILJ 1177 (LAC); [2021] 7 BLLR 643 (LAC) (18 February 2021) it was held that section 84(1) of the BCEA requires, for the purpose of determining the length of the employee's service with a particular employer, that all the employee's periods of employment with that employer be taken into account, provided that the break between those periods of service is less than one year. Employees employed continuously beyond retirement may not necessarily be disentitled to severance pay if subsequently retrenched, due to having previously received retirement benefits.

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When can the employer interfere with the decision of the Chairperson?

In Anglo American Platinum Ltd v Beyers and Others (JA122/2019) [2021] ZALAC 16 (2 July 2021) the appeal in the Labour Appeal Court turned on the circumstances under which an employer is permitted to interfere with a disciplinary sanction imposed by a chairperson of a disciplinary hearing appointed by an employer, and in circumstances where the employer's disciplinary code and procedures make no provisions for such interference. The LAC held that interference with the sanction imposed by a disciplinary enquiry chairperson may only take place if it is justified by fairness between an employer and employee, informed by exceptional circumstances.

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When does an accident arise 'out of' employment?

In order to fall within the ambit of the Compensation for Occupational Injuries and Diseases Act (COIDA), an accident must occur both 'in the course of' employment and arising 'out of' that employment.

In Clementz v Millbo Paper CC and Others (27096/2019) [2021] ZAGPJHC 43; [2021] 2 All SA 774 (GJ); [2021] 7 BLLR 728 (GJ) (19 March 2021) it was held that whether an accident arose 'out of employment' depends on whether the course of his employment brought the employee within the range or zone of the hazard giving rise to the accident causing injury. If it was, the accident arose 'out of employment'. The test to be applied is whether there was a special risk to which the employee would not have been subjected but for the fact that s/he was engaged in that employment.

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ARTICLE: Provocation

By Prof Alan Rycroft

We have all had an experience where we feel we have been provoked by someone else. Sometimes we regret our reaction because later we realize it was 'over the top'. But on other occasions we feel justified in reacting the way we did because the provocation was so extreme.

The requirements for provocation in employment law include the following principles:
  • Reasonableness - was the extent of the provocation such that it would have caused a reasonable person in that position to respond in that way?
  • Immediacy of the response - was the response immediate, without considering other avenues to deal with the problem?
  • Proportionality - was the force used proportionate to the act which provoked it?
Worklaw often gets Helpline queries from subscribers on when provocation by one employee can be used as a justification for assault. Alan Rycroft's article attempts to pull together the legal principles and the case law which has developed those principles.

Read more (note - only available to Worklaw subscribers)

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Worklaw is an online labour law advice and information subscription service - see Worklaw subscribers can obtain advice from experienced arbitrators, research the law and leading cases, receive weekly and monthly news updates, attend Worklaw's annual labour law updates, and access excellent training material, model procedures and checklists, to name a few of these services.

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Bruce Robertson
August 2021
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