INDEX OF NEWSFLASHES


November 2024	When don't you have to pay severance? Khanya Cleaning Group v SATAWU explores under what circumstances an employer would not have to pay severance pay to a retrenched employee under section 41(4) of the BCEA.

October 2024	Facilitation AND Conciliation? The LAC in Numsa obo Members v SAA Technical SOC Ltd had to decide whether a dispute over a retrenchment that had already been facilitated under section 198A, had to be conciliated at the CCMA before being referred to the Labour Court.

September 2024	Strike violence The LAC in AJ Charnaud & Co v SACTWU obo Members distinguished direct participation in strike related violence from the offences of 'derivative misconduct' and 'common purpose'.

August 2024	'Not so sick' notes The LAC in Woolworths v CCMA & Others had to deal with a situation in which an employee was dismissed for submitting medical certificates from a doctor the company suspected of selling them.

July 2024	'Bumping' requirements clarified The LAC in Fischer Tube Technik SA v Bayene & Another has clarified how 'bumping' should be applied in a retrenchment, and an employer's obligations to consult about it.

June 2024	Cannabis testing - a need to re-evaluate policies? The LAC in Enever v Barloworld Equipment found that a positive cannabis test does not on its own indicate whether the employee is impaired from carrying out their duties, and a blood test, without proof of impairment, violates an employee's privacy.

May 2024	*Criminal record a basis for refusing employment?* The LC in O'Connor v Lexisnexis had to decide whether the employer's actions in withdrawing an offer of employment, once it discovered that the applicant had a criminal record, constituted discrimination on an arbitrary ground.

April 2024	*Contempt - not complying with arbitration awards* Two recent Labour Court judgments highlight the dangers of not complying with arbitration awards and the prospects of the frustrated 'winner' succeeding in instituting contempt proceedings.

March 2024	*Constructive dismissal* Wesbank, A Division of Firstrand Bank Limited v CCMA & Others tells a sad story about a deterioration in workplace relationships that ended in a resignation which was found to constitute a constructive dismissal.

February 2024	*Revised Employment Equity sector targets* Revised Employment Equity sector targets have been published for comment. Worklaw's newsflash discusses the practical considerations and potential problem areas in applying these revised targets.

February 2024	*Delays in disciplinary proceedings* The judgment in Cibane & Another v Premier of KZN Province is important for understanding when a party abandons its rights due to 'waiver', and when delays would justify disciplinary action being stayed.

January 2024	*Union reps striking or participating in lawful union activities?* In SA Custodial Management v Union For Police, Security and Corrections Organisation the employers dismissed only the union representatives after an unlawful strike.

December 2023	*Employees holding political office* The Court in Samwu v Minister of Cooperative Governance & Traditional Affairs had to decide whether the Municipal Systems Act, in barring all municipal employees from holding political office, was unconstitutional.

November 2023	*Parental leave redefined* The High Court in Van Wyk v Minister of Employment & Labour has found that the BCEA and the UIF Act, with regard to parental leave, are unconstitutional and unfairly discriminate between mothers and fathers and between different sets of parents.

October 2023	*Legitimate managerial functions or discrimination?* The Labour Court in La Foy v Department of Justice had to distinguish between what were legitimate managerial functions and what might constitute acts of harassment.

September 2023	*"Arbitrary" discrimination claims widened?* Two recent Labour Court judgments - Mkalipi v Minister of Labour and La Foy v Department of Justice suggest that a wider interpretation may be given to arbitrary discrimination claims brought by employees under s6(1) of the EEA.

August 2023	The test for constructive dismissal An arbitrator's award that an employee had been constructively dismissed and was awarded 6 months' pay, was set aside on review in Browns the Diamond Store v CCMA & Others. The Labour Court clarified the grounds for constructive dismissal.

July 2023	Testing positive for dagga revisited Marasi v PetroSA, a discrimination case, explores the overlap between culture and discrimination, with the employee prescribed cannabis as part of a traditional healer training programme.

June 2023	Breathalyzer tests challenged The Labour Court in the recent case of Samancor Chrome Ltd (Western Chrome Mines) v Willemse & Others accepted evidence about the unreliability of breathalyzers in some circumstances.

May 2023	ConCourt ruling on 'scab labour' A recent Constitutional Court ruling on when replacement labour can be used during a lockout - Numsa v Trenstar - has set the cat amongst the pigeons. S76 of the LRA prohibits replacement labour during a lock-out except when the employer locks out employees "in response to a strike".

April 2023	Protest Action Code of Good Practice Worklaw's latest subscriber newsflash discusses the Protest Action Code of Good Practice that was issued by Nedlac in September 2022.

March 2023	Employer liability for harassment revisited The latest judgment dealing with an employer's liability for workplace harassment under section 60 of the EEA - Solidarity obo Oosthuizen v SAPS & Others - awarded the employee R300 000 compensation.

February 2023	'Deemed' vs 'reasonable expectation' of employment Two recent Labour Court judgments show the confusion when applying rights for employees on fixed term contracts to be deemed to be indefinitely employed under s198B of the LRA, or to have a reasonable expectation of continued employment under s186(1)(b).

January 2023	Testing positive vs Under the influence The LC in Numsa obo Nhlabathi v PFG Building Glass accepted that whilst dagga tests do not show the employee's ability to perform duties is impaired, it is automatically assumed that the employee is under its influence.

December 2022	Employer liability for harassment The LAC in Amathole Municipality v CCMA & Others had to decide whether the employer was liable to pay compensation to an employee who alleged she had been sexually harassed at the workplace.

November 2022	The end of disciplinary hearings? Much attention is being paid to the recent Labour Court judgment in Bidvest Protea Coin v Myeni & Others which approved a disciplinary process that arguably does away with the need to hold disciplinary hearings.

October 2022	Arbitrator's interference reviewable? The LC in Saldanha Bay Local Municipality v Mutusa obo Hendricks confirmed that whilst commissioners may conduct arbitrations in a manner they deem appropriate, they must guard against conduct likely to suggest bias.

September 2022	When are expired warnings relevant? Employers frustrated with repeat offenders, often ask whether expired warnings have any relevance when deciding on sanction. We discuss the leading cases that deal with this.

August 2022	Diversity and the need for cultural sensitivity The Labour Court judgment in Toyota SA Motors is another example that highlights the need for employers to be culturally sensitive and recognise diversity in applying their human resource policies.

July 2022	Misconduct can take many forms The Labour Court in Volkswagen Group SA v NUMSA & Others emphasised that workplace misconduct can take many forms, and does not always have to be written into policies or disciplinary codes.

June 2022	"Unjustifiable conduct" legitimising strikes The Dismissal Code implies that an unprotected strike dismissal may be unfair, if the strike was in response to an employer's "unjustifiable conduct". The LAC in Trellicor v Numsa sheds light on how this will be assessed.

May 2022	Mandatory vaccination retrenchment The CCMA in Cecelia Bessick v Baroque Medical found that an employee's retrenchment for refusing to comply with the employer's mandatory vaccination policy was fair, and that she was not entitled to severance pay.

April 2022	Disciplinary action: Getting the charges right The LAC in Austin-Day v ABSA Bank & Others highlighted that employers need to think carefully, when dealing with allegations of misconduct, about what specifically the employee has done wrong and how it impacts on the employment relationship.

March 2022	Covid Code of Practice A Covid Code of Practice was recently gazetted to replace the Occupational Health and Safety Measure Regulations that will lapse once the National State of Disaster ends.

March 2022	Moonlighting The LAC in Bakenrug Meat t/a Joostenberg Meat v CCMA & Others highlighted that 'moonlighting' (doing more than one job) may constitute a breach of an employee's duty of good faith.

February 2022	No jab, no job - so far 2 recent CCMA awards on mandatory vaccination, one dealing with unfair dismissal and the other an unfair labour practice, have upheld the employers' mandatory vaccination policies.

January 2022	Mandatory vaccination policy template Worklaw has developed a mandatory vaccination policy template for its subscribers who wish to implement mandatory vaccination at the workplace in response to the Covid-19 pandemic.

December 2021	Unilaterally implementing wage increases The LC in Numsa v Eskom Holdings considers at what stage during a wage dispute is management entitled to unilaterally implement its last wage offer?

November 2021	Employee demands to remove managers The LAC in Walsh v E. Cape Dept of Health was highly critical of the Dept. for attempting to maintain that the transfer of a CEO in response to unlawful employee demands, was in the 'public interest'.

October 2021	Courts interdicting disciplinary proceedings It is apparent from Minya v SA Post Office & Others that the Labour Court has had enough of employees attempting to halt disciplinary enquiries through urgent interdict applications.

September 2021	Cautioning the consistency rule The LAC in Nyathikazi v Public Health & Social Dev. Bargaining Council & Others said that the 'parity principle' should not result in previous wrong decisions being repeated.

August 2021	Mandatory vaccination policies Mandatory vaccination at the workplace is provided for in the Revised Health and Safety Measures, and raises controversial constitutional issues. We discuss its application.

July 2021	Strike Balloting Guidelines set aside The High Court in Amcu v Minister of Employment and Labour set aside the Strike Balloting Guidelines gazetted in December 2018, declaring them to be unlawful on 2 grounds.

June 2021	Revised Health and Safety Measures - vaccination The Minister of Employment and Labour has signed updated Covid Workplace Occupational Health and Safety Measures, covering vaccination requirements and situations in which employers may implement mandatory vaccination for employees.

May 2021	Dealing with a 'rogue' Covid infected employee The Labour Court in Eskort v Stuurman Mogotsi had to consider whether it was fair to dismiss a Covid infected employee who did not stay away from work and who ignored required social distancing measures.

April 2021	When is a fixed term contract not fixed? The Labour Court in Farinha v Boogertman & Partners had to consider whether it was lawful for the employer to retrench an employee prior to the expiry date of the fixed term contract..

March 2021	Challenging times for collective agreements We discuss cases of employers refusing to implement wage agreements negotiated with unions, due to financial constraints caused by the Covid pandemic, including the award in NUM/PPC Cement.

February 2021	Using replacement labour during lock-outs The LC in NUMSA obo Members v Trenstar had to decide whether the employer was entitled to use replacement labour during a lock-out, after the union had suspended its strike.

January 2021	LAC rules on 'discipline after resignation' The LAC in Standard Bank v Nombulelo Chiloane has put to bed the controversy over the effect of an employee resigning 'with immediate effect', despite a contractual notice period.

December 2020	Can an employer compel annual leave? UASA obo Members v Impala Platinum deals with an employer's right to require non-striking employees to take leave during a strike, whilst the company's operations are shut down.

November 2020	When is a service provider a TES? Many TES organisations restructured themselves as service providers after the 2015 LRA Amendments. David Victor & 200 Others v Chep SA provides guidance on whether these attempts will withstand scrutiny.

October 2020	'Return to work' protocols - October 2020 The Dept of Employment and Labour recently published a revised Covid-19 Consolidated Direction on Occupational Health and Safety Measures, which came into effect on 1 October.

September 2020	Covid-19 pay cuts The LC in Macsteel Service Centres v Numsa & Others considered whether the employer's decision to cut wages due to the Covid-19 pandemic, constituted a unilateral change to terms and conditions of employment.

August 2020	Strike law update We draw from 3 recent LAC judgments to update strike law on an employer's obligation to consult a union before dismissals, how to assess evidence of strike misconduct, and on zero tolerance for 'mob-power' during strikes.

July 2020	Strike ballots no longer? NUMSA & Others v Mahle Behr & Another (LAC) challenges the assumption that the LRA now requires a secret ballot before a union calls a strike.

June 2020	'Return to work' protocols - June 2020 This newsflash provides a summary of the new requirements contained in Consolidated Occupational Health and Safety Measures in Workplaces gazetted on the 4 June.

May 2020	'Return to work' protocols - May 2020 This newsflash aims to provide guidance on developing appropriate Covid-19 'return to work' protocols, in light of the proposed phased reopening of the economy.

April 2020	Beware social media The LC's judgment in Onelogix v Meyer & Others is another example of how careful employees should be about what they say or post on social media.

Urgent Newsflash 2020	Coronavirus: workplace impact - part 3 (TERS) A Covid 19 Temporary Employee / Employer Relief Scheme (TERS) has been established to assist financially distressed employers to pay salaries of employees during the lockdown.

Urgent Newsflash 2020	Coronavirus: impact on the workplace - part 2 The coronavirus is wreaking havoc with the already battered SA economy and we fear that many businesses will not survive. We suggest possible strategies to deal with this.

Urgent March 2020	Coronavirus: impact on the workplace The coronavirus has the potential to have a major impact on the workplace. With the first SA case confirmed, employers need to consider how they should respond to this pandemic.

February 2020	Consulting minority unions over retrenchments? The ConCourt in Amcu v Royal Bafokeng Platinum had to decide whether s189 of the LRA, which does not require employers to consult minority unions, was unconstitutional.

January 2020	Arbitrator's duty to assist parties The LAC in Nkomati Joint Venture v CCMA & others considered when an arbitrator has a duty to 'lend a helping hand' to unrepresented parties, to assist them in the process.

December 2019	Do new laws apply retrospectively? The LC in CCMA v Commission Staff Association & Another considered whether the LRA's new fixed term contract provisions applied to CCMA interpeters' contracts concluded earlier.

November 2019	Transferring to solve a problem The LC in Walsh v E.Cape Dept of Health was highly critical of the Dept.'s transfer of a CEO in the face of union opposition to his management style, although declining to overturn it.

October 2019	Fuss over secret strike ballots Since the 2018 LRA Amendments, there has been a lot of confusion over the need for a secret ballot prior to a strike. Worklaw attempts to clarify what the law actually says.

September 2019	Assessing performance during probation The LAC in Naidoo Ubuntu Education Fund v Paulsen N.O and Others (PA12/17) [2019] ZALAC 56 (15 August 2019) clarified how a lower standard of substantive fairness for probationary employees should be applied.

August 2019	Resigned to resignations Naidoo & Another v Standard Bank has overruled a previous LC decision on the effect of an employee resigning 'with immediate effect', and whether the employer can institute discipline during the notice period.

July 2019	Derivative misconduct revisited The ConCourt in Numsa obo Nganezi & Others v Dunlop has reshaped the law on 'derivative misconduct' - this arises from an employee's refusal to provide information about other employees responsible for misconduct.

June 2019	Agency shop fees - a double whammy? The LC in Matusa v Central Karoo District Municipality & Others had to decide whether an agency shop agreement should be binding on members of a minority union already paying dues to that union.

May 2019	Getting a strike interdict right The LAC in Amcu & Others v KPMM Road & Earthworks highlighted the need to get the wording of a court interdict sufficiently precise, if the employer brings contempt proceedings for non compliance.

April 2019	Discipline after resignation revisited The LC in Coetzee v Zeitz Mocaa Foundation Trust & Another has corrected confusion created by a previous LC judgment over an employee's right to resign with 'immediate effect '.

March 2019	Processing discipline timeously The ConCourt recently in Stokwe v MEC: Dept of Education, Eastern Cape & Others confirmed the need for employers to deal with discipline within a reasonable time period.

February 2019	Need for a fair procedure before suspending? The ConCourt has ruled in Long v SA Breweries that for a precautionary suspension on full pay, there is no need to allow an employee to make representations before being suspended.

January 2019	Labour law update There have been many changes to our labour laws that came into effect on 1 January, with amendments to the BCEA & LRA, and new regulations, codes and guidelines.

December 2018	2018 labour law amendments The National Minimum Wage Act will come into effect on 1 January 2019 and significant amendments to the LRA, BCEA and other labour law statutes have finally been gazetted.

November 2018	A check on restructuring? The ConCourt's decision in SACCAWU & Others v Woolworths shows that our courts will not just rubber stamp employers' views on the operational need to restructure and retrench.

October 2018	When is language racist? The ConCourt in Duncanmec v Gaylard & Others has found that strikers singing a struggle song with the words "hit the boer" did not constitute racism justifying dismissal.

September 2018	Minority union rights affirmed The recent ConCourt judgment in POPCRU v SACOSWU & Others has created concern over organisational rights for minority unions. We discuss the implications of this judgment.

August 2018	Outsourcing - an alternative to labour broking Proctor & Gamble Manufacturing v Mokadi & Others (LC) highlights outsourcing as a possible alternative to labour broking, following the recent ConCourt decision on 'deeming'.

July 2018	Sexual harassment: silence not consent The LC in Rustenburg Platinum Mines v UASA obo Pietersen & others sends a strong message that a 'docile' response to sexual harassment should not be interpreted as consent.

June 2018	When to review an award? The LC judgment in Moses Kotane Municipality v Mokonyama N.O & Another provides useful guidelines on how strong your evidence should be before deciding to review an award.

May 2018	Racism at the workplace The ConCourt's judgment in Rustenburg Platinum Mine v SAEWA obo Bester & Others provides useful guidelines on what constitutes racism at the workplace, and how to deal with it.

April 2018	Learnings from Lamberti The High Court in Chowan v AMH & Others recently awarded an employee damages against AMH, Imperial and CEO Mark Lamberti. It's important to reflect on these events and learn from them.

March 2018	Claiming unfair dismissal AND unfair discrimination The LC in Simmadari v Absa Bank Ltd considered whether an employee can claim unfair dismissal under the LRA and unfair discrimination under the EEA in the same case?

February 2018	Double jeopardy - when is it fair to rehear a case? The LAC in Mahlakoane v South African Revenue Service had to consider whether, if new evidence comes to light after a hearing, is it unfair to reconvene another hearing?

January 2018	Fair retrenchment vs automatically unfair dismissal? NUMSA obo members v Aveng Trident Steel (LC) considers, if employees refuse to agree to change working conditions and this ultimately leads to them being retrenched, whether this is automatically unfair?

December 2017	Providing safe work for pregnant employees The LC in Manyetsa v New Kleinfontein Gold Mine deals with whether an employer's obligation to offer a pregnant employee suitable, alternative employment, requires an employer to guarantee this alternative work.

November 2017	NMW, LRA & BCEA Amendment Bills The National Minimum Wage Bill and LRA, BCEA Amendment Bills have been gazetted. The LRA amendments include the establishment of an advisory arbitration panel to resolve protracted strikes and strike related violence. We discuss the implications of these amendments.

October 2017	The cost of an hour's strike An hour's unprotected strike in 2010 led to employees' dismissal. 7 years later the LAC in SACCAWU obo Mokebe & Others v Pick 'n Pay Retailers has ordered their retrospective reinstatement. This case is an interesting case study.

September 2017	Employer's obligation to provide pregnant employees suitable alternative work Impala Platinum v Jonase & Others (LC) deals with alleged unfair discrimination against a mining company for not guaranteeing suitable alternative work for underground miners who fall pregnant.

August 2017	Challenging the fairness of retrenchment criteria The employer in Kenco Engineering v NUMSA obo members (LAC) used skills, work performance, attendance and safety records as selection criteria for retrenchment. The union argued that LIFO should have been used.

July 2017	LAC decides 'deemed' employer status The LAC in NUMSA v Assign Services and Others settles the debate over interpreting s198A(3)(b)(i), which provides that a labour broker's employee is deemed the client's employee when not employed in a 'temporary service'.

June 2017	Using replacement labour during strikes and lockouts In Sun International Ltd v SACCAWU (LAC) the employer appealed against the LC decision that replacement labour could not be used during a lockout once the strike was over.

May 2017	Remedying the situation when everything goes wrong The LAC in IDWU obo Linda & Others v Super Group outlines how to review a matter when there is no record of proceedings, and reminds us of factors to consider in deciding sanction.

April 2017	Defining the 'workplace' in the context of inter union rivalry The Constitutional Court in AMCU & Others v Chamber of Mines of SA & Others provides guidance on what constitutes the "workplace" for the purposes of the LRA.

March 2017	Collective Bargaining and Industrial Action Accord and Draft Code The Nedlac Accord on Collective Bargaining and Industrial Action and a Draft Code of Good Practice have recently been made public. This newsflash discusses their content and possible significance.

February 2017	More on 'Deeming' and its complications The recent award in United Chemical Industries Mining Electrical State Health & Aligned Workers Unions obo Mbombo / Primeserv highlights complications arising from a TES employee being deemed a client's employee.

January 2017	Discrimination on Disability The LC in Smith v Kit kat Group had to decide whether the employer discriminated against an employee based on a disability caused by an attempted suicide.

December 2016	Managing shop stewards The LAC in SAMWU & Others v Ethekwini Municipality & Others considers the potential conflict between the role of a shop steward and still being an employee.

November 2016	Derivative misconduct taken too far? The LC in Dunlop Mixing & Technical Services & Others v NUMSA obo Nganezi & Others applies derivative misconduct in the strike context.

October 2016	Contract employees' rights to become permanent Lolla's Caregiving Agency v Ashley Louw & Others(LC) deals with a claim by a FTC employee to be deemed permanent under s198B of the LRA.

September 2016	Retrenchment consultations - what's required? The recent LAC judgment in Standard Bank of SA v Letsoalo considers what constitutes proper consultation under s189 of the LRA.

August 2016	SABC - speak no evil, hear no evil Solidarity & Others v SABC (LC) has attracted much publicity. It looks at the lawfulness of the dismissal of 4 journalists, as opposed to whether they were fair.

July 2016	Can a refusal to obey instructions be a strike? Mndebele & Others v Xstrata (LAC) raises interesting strike-related issues: is a refusal to obey instructions a strike? What form can ultimatums take? What makes a dismissal for striking fair?

June 2016	Beware inconsistency Drawing on the recent LAC judgment in Ethekwini Municipality v Hadebe & Others we develop clear guidelines assisting employers to act consistently in disciplinary proceedings.

May 2016	Sexual harassment at the workplace The recent LAC judgment in Campbell Scientific Africa v Simmers & Others should warn employees that sexual advances at the workplace may be judged harshly by the courts.

April 2016	Racism at the workplace City of Cape Town v Freddie and Others (LAC ) focuses on racism at the workplace, providing guidelines on free speech and unacceptable conduct.

March 2016	When is arbitrary discrimination unfair? The LC in Duma v Minister of Correctional Services & Others sheds some light on the new "arbitrary grounds" for unfair discrimination under the EEA, but also muddies the waters.

February 2016	CC says 'no' to invalid retrenchments The Constitutional Court in Steenkamp and Others v Edcon has shut the door on the debate as to whether an unprocedural retrenchment is 'invalid' rather than unfair.

December 2015	More on union accountability for unprotected strikes Verulam Sawmills v AMCU & Others takes a further look at trade union accountability for their members' conduct during industrial action.

November 2015	Can parties contract out of the LRA? Mwelase & Others v Enforce Security & Others LC considers whether parties to an employment contract can contract out of unfair dismissal rights in the LRA.

October 2015	Befuddling labour law amendments The recent review judgment in Assign Services v CCMA & Others on 'deeming' does little to clarify recent labour law amendments.

September 2015	Does changing service providers trigger s.197? SATAWU & Another v MEC: Gauteng for Roads & Transport & Others(LC ) considers whether changing service providers constitutes a 'transfer as a going concern' under s.197.

August 2015	'Lay off' by labour broker constituting dismissal Kelly Industrial Ltd v CCMA & Others(LC) highlights that the practice by labour brokers to 'lay off' employees without pay when between assignments, will not go unchallenged.

July 2015	Union liability for unprotected strikes The LC in Algoa Bus Company v Transport Action Retail And General Workers Union awarded the employer R1,4 million damages against the Union and its members following an unprotected strike.

June 2015	New Code- 'Equal pay for equal work' We discuss the new Code of Good Practice gazetted on 1 June 2015 on Equal Pay / Remuneration For Work Of Equal Value.

May 2015	More on s.197 transfers Employer responses to the LRA's new s198A-D must take into account CWU & others v MTN & Another (LAC) that sheds further light on what constitutes a transfer under s197.

April 2015	Enforcing settlement agreements The LAC in PSA obo Members v Gwanya NO & Another considers the pitfalls in trying to enforce a settlement agreement as an order of court.

March 2015	New CCMA Rules and Guidelines The CCMA has updated its Rules and Guidelines on Misconduct Arbitrations. We summarise the key changes resulting from these amendments.

February 2015	SONA on labour legislation The Presidency released a statement following the President's recent State of the Nation Address (SONA), clarifying what he said about labour legislation developments.

January 2015	12 Key Questions - new LRA We answer the 12 most important questions arising from the new 'non standard' employment provisions of the amended LRA.

December 2014	Paying full time shop stewards during a strike? The LAC recently in Ekurhuleni Municipality v SAMWU overturned a 2012 LC judgment that found full-time shop stewards were entitled to be paid during a strike.

November 2014	Can a Union strike over demands for organisational rights outside its scope? Recent developments suggest employers will face increasing pressure from unions competing for membership, and work stoppages often result. Given this scenario, Bidvest Food Services v NUMSA & Others offers little comfort. The LC had to consider whether a union could strike over demands for organisational rights in a sector outside the scope of the union's constitution.

October 2014	Employer liable for damages The SCA in MEC for the Department of Health v D recently confirmed that an employee who was raped by an intruder whilst on duty, is not precluded by COIDA from suing her employer for damages.

September 2014	How much advice should an arbitrator give parties? The LC in Anglo Operations Ltd (Kriel Colliery) v CCMA & Others considered whether an arbitrator has a duty to assist parties in presenting their cases. It also revisits the effect of inconsistency in treating similar cases.

August 2014	LRA Amendment Act summary The final version of the long debated LRA amendments has been published. We provide a comprehensive summary of the amendments.

July 2014	Tokiso's 2014 Dispute Resolution Digest Tokiso's Dispute Resolution Digest is published annually and reports on the state of labour dispute resolution in SA. It is essential reading for practitioners. We discuss key findings from this year's Digest.

June 2014	Do strikers accrue leave? Hot on the heels of the settlement of the platinum strike, we discuss whether workers accrue leave or are entitled to public holiday pay whilst on strike.

May 2014	Polygraphs fail the test? DHL Supply Chain v Beer N.O. & Others (LAC) revisits the question of polygraph evidence. It will have employers scratching their heads about how to combat stock theft.

April 2014	When does union activity overstep the mark? The recent judgment in NUPSAW & Others v National Lotteries Board required the Constitutional Court to consider the limits of legitimate union activity. At what stage do aggressively stated demands constitute insubordination and disrespectful behavior?

March 2014	Demands to change the contract - automatically unfair? The recent LAC judgment in Solidarity obo Wehncke v Surf4Cars deals with automatically unfair dismissals caused by demands to change employment conditions. The LRA amendments will soon alter these sections. We discuss the implications.

February 2014	When is accrued leave forfeited? Do employees, having not taken leave for many years, have a right on termination to be paid out this leave or is it forfeited? See the LC judgment in Ludick v Rural Maintenance

January 2014	EEA and BCEA Amendments Substantial labour law amendments are in the pipeline. We discuss the key amendments to the EEA and BCEA, which were passed recently. Their implementation dates have yet to be anounced

December 2013	Criteria for affirmative action appointments The case of Captain Barnard, a white woman twice refused promotion by the SAPS for affirmative action reasons, has recently attracted much publicity.

November 2013	EEA: national vs regional demographics Should regional or national demographics be used as employment equity measures ? The Labour Court grappled with this in Solidarity & Others v Dept. of Correctional Services & Others.

October 2013	Constitutional Court holds union liable The Constitutional Court recently in FAWU v Ngcobo N.O. and Another held the union liable for failing to lodge members' claims within the LRA's time limits. This landmark decision has serious implications for how unions provide services to their members.

September 2013	Lawyers at the CCMA - yes/no? The SCA has handed down judgment in CCMA v Law Society, Northern Provinces, dealing with the constitutionality of the CCMA's rule 25(1)(c). This rule limits the right to legal representation in CCMA arbitrations about misconduct or incapacity dismissals.

August 2013	Counterclaims for damages against dismissed employees The recent LAC judgment in Rand Water v Stoop & another deals with an employer's right to counterclaim for damages from an employee challenging the fairness of a dismissal.

July 2013	Employer's right to transfer: LAC muddies the waters? Employers' rights to transfer employees and employees' rights to resist this, are not clear in the LRA. Read the LAC's views on transfers in Minister of PSA & Another v Kaylor

June 2013	Tokiso's 2013 Dispute Resolution Digest Tokiso's Dispute Resolution Digest is published annually and reports on the state of labour dispute resolution in SA. It is essential reading for practitioners. We discuss key findings from this year's Digest.

May 2013	Dismissing protected strikers automatically unfair The LC judgment in SATAWU obo Rune v Bosasa Security is a reminder of the status of protected strikes. Despite the employer describing the employees' conduct as 'absent without permission', the LC ruled that the true reason for dismissal was their participation in a protected strike.

April 2013	Fine time for unions? The Labour Court in In2FOOD (Pty) Ltd v FAWU and others has fined the union half a million rand for not complying with an interdict and not doing more to curtail a violent, unprotected strike by its members.

March 2013	Watershed for bargaining councils? The High Court recently in Valuline & others v Minister of Labour & others overturned the Minister's extension of a bargaining council agreement to cover 'non parties'. We discuss the judgment's impact on bargaining councils.

February 2013	Applying section 189A - retrenching lawfully and fairly The LAC in Revan Civil Engineering Contractors & others v NUM & others recently dealt with a retrenchment in breach of s.189A of the LRA. The LAC adopted a 'two tier' approach, requiring the dismissals to firstly be lawful and only then to consider fairness.

January 2013	Calculating compensation - guidelines Abritrators deciding on what compensation to award have a difficult task. The LRA requires compensation to be "just and equitable". The LC in Plasticwrap - A Division of CTP Ltd v Statutory Council for the Printing, Newspaper & Packaging Industry & others (2012) 33 ILJ 2668 (LC) had to apply this.

November 2012	Criteria for affirmative action appointments The recent LAC judgment in South African Police Services v Solidarity obo Barnard (JA24/2010) [2012] ZALAC 31 (2 November 2012) has provided greater clarity on criteria to be applied in making affirmative action appointments.

October 2012	Traditional healers' sick certificates The recent LAC judgment in Kievits Kroon Country Estate v Mmoledi & others has again brought under the spotlight sick certificates issued by traditional healers.

September 2012	Lessons from Marikana Since Marikana, unprotected strike action has spread across the mining industry, and strikes are taking place elsewhere. We are currently in the middle of a violent legal strike in the road freight transport sector. We attempt to draw some learnings from these events.

August 2012	Strike violence: A suggested legislative response The recent tragic events at Marikana mine are a stark reminder of how volatile our labour relations are. Violence accompanying strikes serously threatens our labour relations system and broader society. In this newsflash we focus on the extent to which our labour legislation meaningfully addresses strike related violence.

July 2012	What happens when you don't have direct evidence? What happens when you dont have a witness who saw the misconduct, but the circumstances infer certain employees committed the offence? What constitutes 'circumstantial evidence' and what is the test to use it as proof? These issues were considered by the LC in *POPCRU obo Ndokweni v Maritz NO and Others*.

June 2012	Zero tolerance for zero tolerance? In two review decisions, the Labour Court considered alcohol related cases involving employees dismissed under a 'zero tolerance approach' to such misconduct. In both cases, the employee was reinstated at arbitration; and in both cases, the arbitrator's decision was upheld on review by the Court.

May 2012	New BCEA earnings threshold and war on labour brokers heats up The BCEA earnings threshold has been increased from 1 July 2012. This is important for the recent LRA Bill covering labour brokers, fixed term contracts and part time employees. Blade Nzimande has also warned of government not doing business with companies using labour brokers.

April 2012	2012 LRA and BCEA Amendment Bills This newsflash aims to inform Worklaw subscribers of the more important aspects of these draft amendments. Whilst the major focus is labour broking, many other issues have also been dealt with. We have tried to resist (not always successfully) commenting overtly on the merits of the proposed amendments, and our intention at this stage is to give subscribers a factual summary of the key changes.

March 2012	Analysis of Tokiso's 2012 Dispute Resolution Digest The Tokiso Dispute Resolution Digest is published annually and is a report on the state of labour dispute resolution in South Africa. It is essential reading for all practitioners in this field. Tokiso has kindly agreed to Worklaw using information from the 2012 Digest for this newsflash, which contains a summary of some of its key observations. Contributors to the 2012 Digest included Steven Friedman, Andrew Levy, Alan Rycroft and Tanya Venter.

February 2012	February 2012 Newsflash

January 2012	January 2012 Newsflash

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July 2011	July 2011 Newsflash

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November 2010	November 2010 Newsflash

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