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 "Before you sign: 8 common mistakes with contracts" in light of a recent LAC judgment over a contractual dispute. We also discuss three other new judgments, two from the LAC and one from the High Court: The first case asks how technical a charge sheet should be. The second considers an employer's potential liability for not taking grievances seriously. The third had to decide whether transferring a service back to a Municipality constituted a section 197 transfer under the LRA.
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RECENT CASES
How precise must a charge sheet be?
In Gauteng Department of Education v General Public Service Sectoral Bargaining Council and Others (JA141/2022) [2025] ZALAC 2 (22 January 2025) the question was whether there can be a finding of misconduct if the charge sheet is not specific about all aspects of the alleged misconduct.
The employees were charged with misconduct at their workstations over a period of almost two years, relating to the appointment and payment of 'ghost' employees. One employee - who was later convicted criminally - used the other employees' Persal credentials (their user names and passwords) to perpetrate theft and fraud.
Following a disciplinary hearing the employees whose Persal credentials had been used were dismissed. They referred an unfair dismissal dispute to the General Public Service Sectoral Bargaining Council, challenging only the substantive fairness of their dismissals.
The arbitrator found that the employees were not charged "in relation to the condition of their Persal credentials" but with "actual theft", which was not proved; and that although the misconduct was said to have occurred at their workstations in Krugersdorp, it had been committed in Braamfontein, Johannesburg and Pretoria.
The arbitrator concluded that the evidence did not support a finding of fraud, and found their dismissals to be substantively unfair. The employees were reinstated retrospectively with backpay. The Labour Court dismissed the employer's review application and the matter went on appeal to the Labour Appeal Court.
Read more (Worklaw subscriber access only)
Not taking grievances seriously: the employer's potential liability
In Louw v Fourie N.O and Another (3074/2016) [2024] ZAFSHC 211 (8 July 2024) the High Court had to weigh up whether the failure by the employer to take seriously and act upon an employee's grievances constituted a failure to comply with the standard of care expected of a reasonable employer.
When the employee started her job as theatre manager at the Netcare hospital she was warned by the then hospital manager, amongst others, that one of the surgeons, who conducted a private practice at Netcare and performed surgeries at the hospital, had an "aggressive type of personality". The employee soon encountered Dr Grobler and his temper tantrums - as did numerous other employees who worked with him in theatre.
During the period 2005 to 2016 Dr Grobler continually verbally abused her by hurling profanities, racist and sexist insults, blasphemous language and gross obscenities at her while in the presence of other operating theatre staff and members of the public. Astonishingly, the employee filed grievances over an 8-year period on behalf of herself and other employees with senior management at Netcare, but the complaints remained largely unanswered. She was informed on numerous occasions that Dr Grobler was untouchable because he was a "money spinner" for Netcare.
The employee instituted 2 actions, the first a defamation case against Dr Grobler himself, which was settled by Dr Grobler's estate (he had since passed away) in terms of a confidential settlement agreement. The second action was against Netcare, a delictual claim based on Netcare's failure to take reasonable care, in that it failed to come to her assistance despite her numerous requests and complaints.
Read more (Worklaw subscriber access only)
Is transferring a service back to a Municipality a s 197 transfer?
In King Cetshwayo District Municipality v Water and Sanitation Services South Africa (Pty) Ltd and Others (JA9/21) [2025] ZALAC 3 (10 January 2025) the question was whether the return of assets to the municipality by an outside service provider constituted a transfer of a business 'as a going concern' for the purposes of s 197 of the LRA, which would have meant that the service provider's employees would automatically have become the municipality's employees.
In 2003, the municipality awarded a tender to a service provider Water and Sanitation Services South Africa (WSSSA) who then became responsible for the management, operation and maintenance of the municipality's water and wastewater treatment facilities and associated distribution infrastructure. WSSSA was the successful bidder in three consecutive tenders running from 1 July 2003 until 30 June 2015. No further tender was put out thereafter, instead the contract was extended annually from time to time until Umgeni Water took over some of the services from 1 July 2020 on an interim basis. Following the conclusion of the third tender, the parties concluded a new service level agreement (SLA).
Before the final extension of the tender WSSSA raised the issue of section 197 of the LRA applying at the termination of the SLA. Its view was that if section 197 applied, then the 666 employees would be transferred to the municipality. Its view was that in terms of the SLA, if the employees were not transferred to the municipality, then they should be transferred to the new service provider.
The municipality denied that there was a section 197 transfer and took the view that WSSSA was attempting to avoid its financial obligations by transferring the employees to it instead of undertaking a retrenchment process if it was not going to use them on future projects. It asserted that there was no transfer because if WSSSA's version was accepted, then every tender put out by government would result in the application of section 197 once such a tender expired or had otherwise ended.
Having failed to reach agreement on the transfer of the employees or the application of section 197 of the LRA, LSSSA approached the Labour Court for a declarator that the transfer took place. The court found that the assets which were owned by the municipality but used by WSSSA (such as boreholes, pipes and reservoirs), were the essential components of the business of supplying bulk water services. Upon termination of the SLA, the return of these assets to the municipality therefore constituted a transfer of a business as a going concern.
The municipality took the decision on appeal to the Labour Appeal Court.
Read more (Worklaw subscriber access only)
ARTICLE : Before you sign - 8 common mistakes with contracts By Prof Alan Rycroft
There is a Latin legal term - "Caveat subscriptor" - which means "Let the signer beware" (ie take care)! The reason for this warning is that when signing a contract, the individual automatically agrees to the conditions stated in the contract, regardless of whether they have read and/or understood them.
In this article we will deal with the most common mistakes made in entering into contracts, and in the process discuss a recent LAC decision dealing with these issues. In this case a party was found to have "snatched a bargain" without realizing the offer had to be read together with the applicable pension fund rules.
We discuss the case law dealing with the following 8 common mistakes
- Neglecting to check regulations or rules which affect the offer
- Signing under pressure
- Using ambiguous language
- Not anticipating potential disputes
- Entering into an illegal or invalid contract
- Contracting with a person who has no mandate to contract
- Not anticipating impossibility of performance
- Contacts based on mistakes.
Read more (only available to Worklaw subscribers)
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Bruce Robertson
February 2025
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