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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 'Delays and condonation: the tale of 2 cases' - we consider two recent LAC decisions in which condonation was sought, mainly because of the delays caused by attorneys. We also discuss three new cases: The first case deals with when an employer is liable for an assault in the workplace. The second case involved the situation where employees deny knowledge of a disciplinary rule, and how literally to interpret disciplinary rules. The third case looks at a review of an arbitrator's award where it was found that the bulk of the award contained the plagiarized and unacknowledged replication of another author's article.

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


When is an employer liable for an assault at the workplace?

In Churchill v Premier of Mpumalanga and Another (889/2019) [2021] ZASCA 16 (4 March 2021) the SCA highlighted that in claims brought under COIDA, the statutory requirements must be satisfied - namely, that the accident arose "out of" the person's employment, as well as "in the course of" that employment.

The SCA made clear that COIDA is not directed at providing compensation and exempting employers from liability for injuries and diseases that are only tenuously and tangentially connected to the duties of the employee. An employer seeking to rely on s35(1) to avoid liability bears the onus of satisfying the court that the accident arose out of the claimant's employment.

Assault is not something that ordinarily arises from a person's employment. Where the assault occurs in the workplace, but as a result of something external to the workplace and the duties of the person assaulted, it cannot be said to arise out of their employment. Compensation could not then be claimed under COIDA and the employer could not escape liability under s35(1) of COIDA.

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Is a disciplinary rule known? How should it be interpreted?

In Pailpac (Pty) Ltd v De Beer N.O and Others (DA 12/2018) [2021] ZALAC 3 (1 March 2021) the LAC held that in assessing misconduct, the correct test is whether, on the evidence, the dismissed employees were aware of the rule or could reasonably have been expected to be aware of the rule.

The LAC said that courts have consistently cautioned against an overly technical and formulaic approach to interpretation of a rule, for example, distinguishing between 'brandishing' and 'carrying' a weapon in a strike.

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When an arbitrator does not apply her/his mind

In UTI Pharma (Pty) Ltd v Bracks N.O and Others (JR 2459/2018) [2021] ZALCJHB 11 (15 February 2021) it was held that where the bulk of an arbitrator's award is nothing more than the plagiarized and unacknowledged replication of another author's article, this may be indicative of a failure to apply his mind to the issues. This is particularly true where there is no reasoning to support the conclusion by referring to any evidence.

Arbitrators, like judges, are required to provide reasons for their awards. Reasons enable the parties to the dispute (and others) to appreciate the application of legal principle to assess facts, and thus the basis of the conclusion drawn. The absence of any proper assessment of the relevant facts and the failure to apply legal principles to those facts renders the award reviewable. It is not sufficient for an arbitrator simply to record a number of legal authorities and then to state a conclusion, without further substantiation.

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ARTICLE: Delays and condonation - the tale of 2 cases

By Prof Alan Rycroft

One of the underlying themes of the LRA is that disputes must be resolved as speedily as possible. Deadlines are set by when disputes have to be referred to the CCMA, when an arbitration award must be given, when a review application must be lodged with the Labour Court, and so on. The CCMA, the Labour Court and the Labour Appeal Court (as well as other courts) have rules which stipulate deadlines for referring disputes, and bringing reviews and appeals.

All these sets of Rules provide for condonation when a deadline has been missed. At the CCMA this is covered in Rule 9 of the CCMA Rules. A commissioner has to consider the grounds on which condonation is sought. These include -
  1. the degree of lateness;
  2. the reasons for the lateness;
  3. the referring parties' prospects of success;
  4. any prejudice to the other party; and
  5. any other relevant factors.
This year the Labour Appeal Court has dealt with two cases where condonation was sought. In both cases it was the actions of lawyers which were scrutinised to assess if condonation should be granted. These cases clarify what factors influence the courts.

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Bruce Robertson
March 2021
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