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 on 'Two strike issues: Political party interference and common purpose', and discusses two new judgments on these topics. We also discuss three other new judgments: The first case investigates when a contract can be set aside on grounds of duress. The second case considers whether reaching retirement age is a fair criterion for retrenchment? The third case asks when unequal wages amount to discrimination on arbitrary grounds.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
When can a contract be set aside because of duress?
In Beyer and Others v Alleyroads Construction (Pty) Ltd (JS 1542 / 2019) [2023] ZALCJHB 338 (29 November 2023) the court set down the essential requirements before a contract entered into by an employee can be set aside because of duress exerted at the time the contract was signed.
The employees disputed a consultancy agreement on the basis that they either did not sign the agreement or that it was signed under duress. They referred their dispute to the Labour Court, claiming that they were unfairly retrenched and they claimed relief in terms of the BCEA. The employer opposed the referrals and raised a point in limine, challenging jurisdiction. The employer challenged the existence of an employment relationship as they ceased to be employees after signing the consultancy agreement.
In disputing the employer's point in limine, the employees had to show that the consultancy agreement did not terminate their employment with the employer and that they were still employed at the date of their alleged retrenchment. What was in dispute was whether the relationship changed from an employment relationship to one of consultancy.
The Labour Court confirmed that a contract or agreement may be vitiated by duress, because intimidation or improper pressure means the party subjected to duress did not truly consent. The Court said five elements must be established, where a person seeks to set aside a contract or resist the enforcement of the contract on the grounds of duress.
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Is reaching retirement age a fair criterion for retrenchment?
In Seokwane v Bidvest Prestige Cleaning Services (Pty) Ltd (JS 1040/20) [2023] ZALCJHB 313; [2024] 2 BLLR 194 (LC); (2024) 45 ILJ 333 (LC) (8 November 2023) the key question was whether it was fair to use the fact that an employee was working after the designated retirement age as a criterion for retrenchment.
A general worker employed by a contractor at Volkswagen SA on a three-year fixed-term contract, was told during the Covid-19 lockdown that she was to be retrenched and was offered a severance package, which she declined. When she asked for reasons for her retrenchment, she was told that her contract was to be cancelled because she had passed her retirement age. The employer claimed that she had not been told that she would be retrenched before she was informed of her retirement, but that she had asked to be retrenched.
The Labour Court said that, in assessing the fairness of a dismissal based on retirement, a court must ensure that retirement is not being used where the true reason is something other than age.
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Unequal wages: Discrimination on arbitrary grounds
In AMCU obo Members v Aberdare Cables (Pty) Ltd and Others (P135/2021) [2023] ZALCPE 26; [2024] 3 BLLR 276 (LC); (2024) 45 ILJ 511 (LC) (20 December 2023); 2024] 3 BLLR 276 (LC) the court had to decide if using the starting date of employment as the reason for paying on a lower wage scale was unfair discrimination on an arbitrary ground.
The employer initiated a process in terms of section 189 and 189A of the LRA, which resulted in a reduction of its workforce. During the latter part of 2013 the employer was still confronted with a decline in business and together with NUMSA, the majority trade union, agreed that all new employees should be employed on the MEIBC rate of pay and rely on natural attrition to ensure that, over a period of time, all employees would be engaged on the same rates of pay. As a result, all those employed on or after 1 January 2014 (new employees) earned the minimum wage rate, as stipulated in the collective agreement. The employees employed prior to 1 July 2014 (old employees) were remunerated on a higher rate.
AMCU, representing the new employees, argued that the employee had contravened section 6 of the EEA in that, based on an arbitrary and prohibited ground, there existed a difference in the terms and conditions of employment of employees of the same employer performing the same or substantially the same work or work of equal value.
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ARTICLE: Two Strike Issues - Political party interference and 'common purpose'
By Prof Alan Rycroft
In this article we discuss two recent judgments that deal with difficult issues faced by employers in the strike context. The first is which court an employer must turn to if a political party (and not a trade union) seeks to disrupt business. The second case highlights the indicators that show strikers are acting in 'common purpose' with those engaged in misconduct. The case also deals with inconsistency in disciplinary sanctions.Disruption of business by a political party
In CCI South Africa (Pty) Ltd v African National Congress Youth League and Others (DA31/22) [2024] ZALAC 7 (6 March 2024) an employer turned to the Labour Court to interdict action by the ANC Youth League (ANCYL) aimed at closing down its business. The employer, CCI South Africa, had seen a leaflet bearing the ANCYL's logo, which called for a shutdown of the employer as well as a list of demands relating to various employment issues. Subsequently, one of the employer's staff members showed the management a WhatsApp voice-note, allegedly from the ANCYL, also relating to the proposed shutdown of the employer, and with a repeat of the same demands. This was also the case on Facebook, where the employer's attorney found posts made by the ANCYL, where there was a leaflet with the same demands and a call for a shutdown of the employer.
The Labour Appeal Court had to decide whether the labour courts had jurisdiction to interdict the ANCYL's protest action under the LRA, or whether the Regulation of Gatherings Act applied and the matter should be heard by the High Court.
Common purpose and consistency
On 16 November 2018 a protected strike commenced at Dis-Chem, which turned violent. Later that day the employer approached the Labour Court for an order that the striking employees comply with the picketing rules and confine themselves to the designated areas. The Court granted the order but it had little effect: striking workers continued to assault non-striking workers, there was damage to delivery vehicles, stones were thrown at passers-by, and access was blocked to Dis-Chem stores at Canal Walk, Cavendish Square, Ghandi Square, Park Station and other sites. The CCMA sought to intervene, also with little effect.
On 5 December 2018, Dis-Chem approached the Court for further relief and an order was given suspending the picketing rules, and restraining the strikers from continuing with "any further picket, gathering, assembly or protest action" at Dis-Chem or any public place outside the stores.
Approximately 800 strikers were ultimately dismissed. NUPSAW referred an unfair dismissal dispute to the CCMA. The arbitrator found the dismissals of all the employees to be fair except for two, who were both reinstated.
On review the Labour Court in National Union of Public Service and Allied Workers ("NUPSAW") obo Lutendo and Others v Commission for Conciliation, Mediation and Arbitration and Others (J 2086/20; JR 2111/20) [2024] ZALCJHB 1 (5 January 2024) had to deal with allegations of the inconsistent treatment of employees who had committed misconduct, and whether the actions of employees, by singing in the bus with employees who committed strike misconduct, constituted 'common purpose.'
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Bruce Robertson
April 2024
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