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 the second part in our series on the rules of evidence to be applied at disciplinary hearings. We also look at new decisions dealing with the refusal to allow legal representation at CCMA arbitrations, pension rights on transfers of employment, and a trade union's duty of care to its members.

Kindly note that this constitutes the November/December newsletter and the next newsletter is due in January 2004. We wish all our readers a peaceful and happy Christmas, and may your dreams come true in 2004.

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


The refusal to allow legal representation

Even though it is widely known that a CCMA Commissioner is given a discretion to refuse a party the right to be legally represented at an arbitration, it is not so clear whether the refusal triggers an expectation of a delay in proceedings to allow the party to prepare. In Netherburn Engineering CC t/a Netherburn Ceramics v Robert Musau and others the CCMA Commissioner refused to exercise his discretion in favour of the employer and refused a stay in the arbitration proceedings.

The employer took the decision on review. The Labour Court found that the Commissioner had exercised his discretion and reached a conclusion which was rational and justifiable. But the Court went on to the Commissioner's refusal to stay proceedings and held that his refusal to allow a 'breather' to allow the attorney to prime the employer justified the settling aside of the award.

The transfer of pensions on transfer of employment

One of the problems which arises in the context of a termination of employment through the transfer of the contract of employment to a new employment is what happens to the employee's entitlement to the 'old' employer's pension fund. This problem arose in Telkom SA Ltd & others v Blom & others (2003) 24 ILJ 1475 (SCA). In the High Court employees argued that as the transfer terminated their services with Telkom, their membership with the Telkon Pension Fund was also terminated, entitling them to their benefits in terms of the rules. The High Court found in favour of the employees. On appeal to the Supreme Court of Appeal, it was held that while s 197 resulted in a statutory assignment of the employment contracts, it did not take away employees' rights to receive pension benefits.

A trade union's duty of care to its members

Does a trade union owe a duty of care to its members to ensure that they do not do anything which would result in their being dismissed? In SAMWU v Jada & others (2003) 24 ILJ 1344 (W) there was an unprotected (illegal) strike and employees were dismissed. They sued their trade union in the Magistrate's Court, alleging a breach in the trade union's delictual responsibility. On appeal, the High Court held that the union official was not the only cause of the strike as there was a group decision of the employees to strike in the knowledge that it was illegal. The employees failed to prove that the union owed them a duty of care or that the union was the cause of the loss.


Worklaw is a comprehensive labour law advice and information service, developed by some of South Africa's most experienced labour arbitrators. Worklaw subscribers get free advice from experienced arbitrators via e-mail, can research the law and leading cases, are updated monthly on new cases, trends etc, and can use excellent training material, to name a few of these services. Subscribers are invited to an annual labour law workshop covering the key cases and trends from the past year.

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Bruce Robertson
November 2003
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