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FEBRUARY 2024 PUBLIC NEWSLETTER


Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to www.worklaw.co.za

Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on 'The violent strike: What remedies are there?' and discusses a new judgment on this topic. We also discuss three other new judgments: The first case investigates when a confession in court is valid evidence in a disciplinary hearing. The second case considers the jurisdiction of the High Court in employment disputes. The third case asks when a settlement agreement is not binding.

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

RECENT CASES

When is a confession valid evidence?

In Brauns and Others v Wilkes N.O and Others (JA 47/22) [2024] ZALAC 1 (18 January 2024) the LAC had to decide if a confession, taken down in writing by a magistrate but later contested, is valid evidence in an internal disciplinary hearing.

Three employees were dismissed for dishonesty by the SA Police Services. They were found guilty of fraud relating to false overtime claims. Their dismissals were found to be fair by the bargaining council commissioner because the charges against them had elements of dishonesty and destroyed the trust relationship between the parties. The LAC agreed with the Labour Court's finding that the award of the Commissioner was one which a reasonable decision maker could reach and accordingly dismissed the employees' review application.

A controversial aspect of this case was the status of a confession by one of the dismissed employees which had been reduced to writing by a magistrate, and which was accepted as evidence by the commissioner. The employee said that he was told what to say to the magistrate during the confession, with the hope that criminal charges would not be brought against him, and was "emotionally threatened" with criminal prosecution at the time he made the confession.

Read more (Worklaw subscriber access only)

When does the High Court have jurisdiction in labour matters?

In Mhlontlo Local Municipality and Others v Ngcangula and Another (1154/2022) [2024] ZASCA 5 (17 January 2024) two questions arose:

1. Does the BCEA give concurrent jurisdiction to the Labour Court and the civil courts to determine any matter concerning a contract of employment irrespective of whether any basic condition of employment constitutes a term of that contract?


2. Where a notch increment, payable only to those employees who met the qualifying criteria, is paid erroneously to employees who did not qualify, does this give rise to a contractual entitlement by those non qualifying employees?

Two employees instituted proceedings against their employer, the Mhlontlo Local Municipality in the Mthatha High Court, Eastern Cape Division, contending that deductions made from their salary were unlawful in terms of s 34(1) of the BCEA. These deductions related to a 2,5% 'notch increase' initially granted to them in terms of a resolution passed by the Municipality, only for that resolution to be subsequently revoked when it was found that they had not met a qualifying condition for the increase and were accordingly never entitled to it. Both employees' basic salaries were then reduced and they were both ordered to repay over R200 000 each.

The High Court determined that it had the necessary jurisdiction to adjudicate the matter, and found that decision to cease paying the notch increase was unlawful under s 34(1) of the BCEA. The Municipality appealed the High Court judgment to the SCA.

Read more (Worklaw subscriber access only)

"In full and final settlement": how binding is a settlement agreement?

In GB Engineering Pty Ltd v Mbongo and Others (JA75 / 2022) [2023] ZALAC 29; [2024] 1 BLLR 14 (LAC); (2024) 45 ILJ 267 (LAC) (18 October 2023) the key issue was whether employees can withdraw from a settlement agreement entered into by a trade union on behalf of its members, if the employees later dispute the agreement. The employees argued that they had never mandated NUMSA to agree to the settlement on their behalf and that they were no longer members of that union.

During retrenchment consultations under section 189A the employees, advised and represented by NUMSA, entered into the settlement agreement with their employer. The settlement agreement was a product of a consultation process between the parties under the auspices of a CCMA senior commissioner. The settlement agreement was reached in full and final settlement of the section 189A large scale retrenchment process and all issues related thereto.

Read more (Worklaw subscriber access only)

ARTICLE : The violent strike: What remedies are there? By Prof Alan Rycroft

We continuously read judgments which record horrific stories of violent strikes. Intimidation, murder, arson, assault and destruction of property are commonplace. Many employers faced with violent strikes have tried, through interdicts and disciplinary processes, to respond within the legal structures.

In African Meat Industry and Allied Trade Union (AMITU) and Others v Shave and Gibson Packaging (Pty) Ltd (D 1050/2019) [2023] ZALCD 17; [2024] 1 BLLR 54 (LC); (2024) 45 ILJ 79 (LC) (17 October 2023) employees embarked on a protected strike over a wage dispute. At the commencement of their strike, employees began picketing outside the workplace. The employer delivered a notice of a lockout which it said would continue until the strikers accepted its "demand" of a "zero percent increase". For some days, the employer's attorney complained to the union that the strikers were brandishing weapons and threatening non-strikers and invited the union to view video footage, and subsequently claimed that the violence had escalated.

Employees were dismissed for participating in an 'unprotected' strike which was "not functional to collective bargaining" due to high levels of violence and intimidation, unreasonable union demands and the protracted duration of the strike, derivative misconduct by failing to identify the perpetrators of criminal acts, being in contempt of a court order, alternatively breaching picketing rules, and harassing and/or intimidating or assaulting specific individuals.

The Court had to consider the employer's submission that the strike had lost its protected status because of unreasonable demands, the lengthy duration of the strike and the high levels of violence and intimidation.

Read more (only available to Worklaw subscribers)

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Bruce Robertson
February 2024
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