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 on justifications for fixed-term contracts longer than three months, under section 198B of the LRA. We also discuss three new cases: The first case investigates whether an employer can claim compensation for damages suffered during a protected strike. The second case looks at whether an employee can change the remedy he/she seeks, during the hearing of the matter. The third case deals with whether a voluntary severance package is a 'benefit' in terms of the unfair labour practice definition.

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


Compensation claimed by the employer during a protected strike

In Massmart Holdings Ltd and others v South African Commercial Catering and Allied Workers Union Case no: JS 757/2021 Judgment: 23 May 2022 the Labour Court held that conduct during a protected strike that constitutes an offence or otherwise fails to comply with the requirements of Chapter IV of the LRA, is capable of founding a claim for compensation under section 68(1) of the LRA.

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Can an employee change the desired remedy?

In Sibiya v South African Police Service (JA15/21) [2022] ZALAC 88 (12 May 2022) it was held that even though an employee in the statement of claim seeks only compensation and not reinstatement, the employee can have a change of mind and seek reinstatement at the hearing of the matter. For a court to limit the remedy to the statement of claim is a patently wrong approach. Amendments to pleadings may be granted before and after close of pleadings, during the hearing of the evidence, after the evidence has been given, and even during or after the closing argument, but not after judgment.

As regards reinstatement, the term 'not reasonably practicable' in section 193(2) - given as one of the reasons not to award reinstatement - means more than mere inconvenience and requires evidence of a compelling operational burden.

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Is a voluntary severance package a "benefit"?

In National Union of Mine Workers obo Mabilikoe v Commission for Conciliation, Mediation and Arbitration and Others (JR 2169/19) [2021] ZALCJHB 464 (15 February 2021) the Labour Court held that a voluntary severance package (VSP) which is not guaranteed and is offered at the discretion of an employer is not a "benefit" within the meaning of section 186(2) of the LRA.

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ARTICLE: Justifications for fixed term contracts longer than 3 months

By Prof Alan Rycroft

Section 198B of the LRA was introduced to increase protection for employees on fixed term contracts. A fixed term contract is defined under s 198B(1) to mean a contract of employment that terminates on the occurrence of a specified event or on the completion of a specified task or project; or on a fixed date other than an employee's normal or agreed retirement age.

An employee can only be engaged on a fixed term contract or successive fixed term contracts for longer than 3 months if -
  • the nature of the work 'is of limited or definite duration', or
  • the employer can demonstrate 'any other justifiable reason' for doing so.
Section 198B(4) specifies 9 different situations as examples of what may constitute a 'justifiable reason' for having a contract over 3 months. In this article Prof Rycroft recaps the law and discusses several cases which have interpreted the justifications for fixed-term contracts longer than 3 months under section 198B(4).

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Bruce Robertson
June 2022
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