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, based on two recent cases in the Constitutional Court and Labour Appeal Court, on 'New cases on pre-retrenchment consultation'. We also discuss three new cases: The first case investigates whether a court can order reinstatement if the employee has not sought this remedy. The second case has two themes: "deemed dismissal", and whether an employee needs the employer's consent for annual leave. The third case deals with constructive dismissal in the context of mental ill-health.

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


'Trial by ambush'

In Real Time Investments 158 t/a Civil Works v Commission for Conciliation, Mediation & Arbitration and Others (JA77/19) [2022] ZALAC 7 (17 March 2022) it was confirmed that a court may not order a remedy not asked for by the applicant. The notice of motion or application and the founding affidavit in application proceedings constitute both the pleading and the evidence. They serve to define the issues which are to be adjudicated upon by the court. If reinstatement is not sought in the documents, the court may not make such an order.

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Deemed dismissal and interpreting the BCEA's leave provisions

Member of the Executive Council for Health, North West Province v SA Medical Association & another (2022) 43 ILJ 134 (LAC) confirmed that the deemed dismissal provision in section 17(3)(a) of the Public Service Act does not require a decision in order to operate. It operates automatically if all the requirements of the section are met. The case also clarified that sections 20(2) and 20(6) of the BCEA do not provide that an employee does not require the employer's permission to go on annual leave.

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Constructive dismissal and mental ill-health

Summary: In Mogomatsi v Goredema N.O. and Others (C560/2019) [2022] ZALCCT 20 (4 May 2022) it was confirmed that in a constructive dismissal dispute, employment must objectively have been rendered intolerable in the sense that no reasonable employee could be expected to put up with the employer's conduct. At the same time, the employee must subjectively have found the conduct intolerable. This case also confirmed that where an employee suffers from mental ill-health, an incapacity hearing should be used rather than a misconduct enquiry.

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ARTICLE: New cases on pre-retrenchment consultation.

By Prof Alan Rycroft

The obligation to engage in a meaningful joint consensus-seeking process in an attempt to reach agreement before retrenchment, is both well-known and poorly understood. Two recent cases - one from the Constitutional Court and the other from the Labour Appeal Court - assist in understanding when consultation is meaningful and when it is superficial. Because the outcome of the cases depended on the facts of each case, it is worthwhile to take time to look at these two case studies.

In Solidarity obo Members v Barloworld Equipment Southern Africa and Others (CCT 102/21) [2022] ZACC 15 (6 May 2022), the ConCourt said that the failure to reach consensus or agreement does not necessarily mean that the consultation process was not meaningful. This case also provided clarity on how disputes concerning procedural unfairness must be dealt with.

In Reeflords Property Development (Pty) Ltd v Almeida (JA72/2020) [2022] ZALAC 8 (16 March 2022) the LAC found that consultation must be genuine and have the purpose of seeking alternatives to avoid dismissal. It will be bad faith if the employer fails to implement items agreed during the consultation process.

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Bruce Robertson
May 2022
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