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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 'Using psychometric tests in the retrenchment process'. We also discuss three new cases: The first case considers what meaning must be given to the word 'intolerable' in section 193(2) of the LRA, when not considering reinstatement as a remedy for unfair dismissal. The second case investigates whether an employee can refuse to testify at a CCMA arbitration hearing. The third case looks at the situation where there is a demarcation dispute about which industry an employer is covered by, and the test for demarcation is clarified.

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


Intolerable or unbearable? The test for reinstatement

In Booi v Amathole District Municipality and Others (CCT 119/20) [2021] ZACC 36 (19 October 2021) the term "intolerable" in section 193(2) of the LRA was held to imply a level of unbearability, and requires more than the relationship being difficult, fraught or even sour, for reinstatement not to be awarded for an unfair dismissal. This high threshold gives effect to the purpose of the reinstatement, which is to protect unfairly dismissed employees by restoring the employment contract and putting them back in the position they would have been in but for the unfair dismissal.

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Can an employee refuse to testify at an arbitration?

Summary: In Kaefer Energy Projects (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA59/20) [2021] ZALAC 42 (26 October 2021) it was held that where an employee is instructed to testify at an arbitration, there is a duty to comply with that instruction. The employee may however raise a valid and acceptable excuse for not wanting to do so. Where this happens the issue of a subpoena may be pursued, while providing the employee with the necessary protection against threats.

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The test for demarcation disputes

In National Union of Metalworkers of South Africa v Commission for Conciliation, Mediation and Arbitration and Others (JR 2596/2018) [2021] ZALCJHB 29; [2021] 7 BLLR 701 (LC) (4 March 2021) the Labour Court confirmed the following principles about demarcation disputes:
  1. The focus in a demarcation enquiry is on the purpose for which the employer and the employee are associated, and not a single, incidental activity.
  2. The exercise of demarcation goes beyond the words in the defined scope of a bargaining council: what is required is a policy decision about the 'best fit'.
  3. Deference should be given to the decisions of the CCMA in making demarcation decisions.
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ARTICLE: : Using psychometric tests in the retrenchment process

by Prof Alan Rycroft

The reliability and validity of psychometric testing is controversial. Courts have accepted that in the past certain psychological tests were not properly and scientifically adapted to South Africa's cultural diversity, as they tended to unfairly discriminate against certain groups or individuals.

In Pratten v Afrizun KZN (Pty) Ltd (D439/15) [2020] ZALCD 9; (2020) 41 ILJ 2899 (LC) (17 April 2020) the employer, the owner of several casinos, restructured its business on grounds of its operational requirements. The method for selecting employees for retrenchment included the psychometric testing of employees for new restructured positions.

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Bruce Robertson
November 2021
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