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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 'can an ex-employee refer an unfair labour practice dispute'? We also discuss three new cases. The first case investigates what makes a trade union "sufficiently representative" for the purposes of claiming organisational rights under the LRA. The second case looks at what is fair when employees are invited to apply for restructured posts. The third case decides what is necessary to be established when a party applies to rescind a court order.

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


What is a "sufficiently representative" trade union?

In Lenmed Ethekwini Hospital v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (D1001/19) [2022] ZALCD 27 (8 July 2022) it was held that whether a trade union is "sufficiently representative" is not just about numbers. An arbitrator is required to also have regard to the interest represented by a union and not exclusively the numerical representativeness of employees.

In an arbitration at the CCMA, the crisp issue before the arbitrator was whether the union was sufficiently representative of employees to qualify for organisational rights in terms of section 12 and 13 of the LRA, given that the Act does not define what constitutes 'sufficient representation'. Whilst the exact level of the Union's representation was disputed, it was between 16.5% and 18.9%.

The CCMA arbitrator awarded the Union organisational rights under sections 12 and 13 of the LRA. The employer was unsuccessful in reviewing the award in the Labour Court.

Read more (Worklaw subscriber access only)

Fairness in competition for restructured jobs

In Regenesys Management (PTY) Ltd t/a Regenesys v Nortje and Others (JA49/2020) [2022] ZALAC 96 (18 July 2022) the LAC held that a competitive process that seeks to avoid retrenchment is not unfair. However, this does not remove the obligation on an employer to ensure that any resultant retrenchment meets the requirements of substantive fairness, with fair and objective selection criteria used to select those employees to be retrenched, and alternatives to retrenchment properly canvassed and carefully considered.

The LAC ordered the employer to reinstate the employees retrospective to the date of dismissal, into the same or similar positions held by them at the time of their dismissal, with no loss of benefits. These employees were ordered to repay any amount received as severance pay.

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Rescission of a court order

The Labour Appeal Court in Diplopoint (Pty) Ltd v Twala (JA 67/21) [2022] ZALAC 97; [2022] 9 BLLR 807 (LAC) (12 May 2022) dealt with what the applicant had to prove to establish a basis for rescinding a court order under section 165 of the LRA, when the order was erroneously granted in the absence of one of the parties. The Labour Court had rejected the rescission application as it found that the applicant had not shown "good cause" (ie having reasonable prospects of success on the merits of the case), and the LC found that the employer had not established a bona fide defence to the employee's claim.

On appeal the LAC held that where a court order has been erroneously granted in the absence of any party affected by it, the application for rescission by the absent party need not show "good cause". In terms of Labour Court Rule 16A, "good cause" must only be shown in rescission applications where the grounds are other than error, ambiguity, patent error or omission, or mistake common to the parties.

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ARTICLE: Can an ex-employee refer an unfair labour practice dispute?

By Prof Alan Rycroft

The definition of an unfair labour practice in section 186(2) of the LRA refers to "any unfair act or omission that arises between an employer and an employee". This seems to imply that only an existing employee can refer an ULP dispute.

Does this then mean that an unfair labour practice dispute cannot be referred in circumstances such as the following?

  • An employee has resigned after an unsuccessful promotion application. The employee says the promotion process was unfair.
  • Some time after retiring, employees discover that a travel allowance paid to other employees of the same grade was never paid to them.
In his article, Prof Alan Rycroft discusses the cases that deal with this and answers the questions posed above.

Read more (note - only available to Worklaw subscribers)


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Bruce Robertson
September 2022
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