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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 'Is a union bound by its certificate of registration and constitution?' and discusses two recent judgments on this topic. We also discuss three other new judgments: The first case looks at arbitrator errors and when these make the award reviewable. The second case rules on the Labour Court's jurisdiction in a claim for damages suffered in a protected strike. The third case evaluates affirmative action measures to decide if they impose an absolute barrier to any groups.

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Wrong findings by the arbitrator: when is the award not reviewable?

In Maruleng Local Municipality v Commission for Conciliation, Mediation and Arbitration (JR1926-21) [2024] ZALCJHB 81 (20 February 2024) the Labour Court had to decide if an award was reviewable when the arbitrator made errors of judgment but notwithstanding that, arrived at a reasonable outcome.

Read below for further details:

The employee, the Municipality's Director: Technical Services, was served with a notice to attend a disciplinary enquiry to answer to 23 misconduct charges. He was found guilty of the majority of the charges, most significantly of signing cession agreements without authority. The presiding officer recommended dismissal, and the Municipality's council agreed.

The employee referred an unfair dismissal dispute to the CCMA. The arbitrator found that the employee had not proved a rule about the signing of cessions, (and by implication had not proved a breach of the rule). The dismissal was held to be unfair and reinstatement was ordered.

On review the Labour Court held that in important respects the commissioner's findings were wrong (there was a workplace rule about the signing of cessions), but certain mitigating factors led during evidence were in the court's view sufficient to sustain a finding that the arbitrator's decision that the dismissal was unfair, was reasonable.

Read more (Worklaw subscriber access only)

Can the Labour Court award damages suffered in a protected strike?

In South African Commercial Catering and Allied Workers Union v Massmart Holding Limited and Others (JA119/2022) [2024] ZALAC 13 (29 April 2024) the LAC had to decide if the Labour Court has jurisdiction to decide on damages caused by employees during a protected strike.

Massmart Discounters sought damages of R9 383 454,57 as compensation under section 68(1)(b) of the LRA for losses suffered as a result of unlawful conduct and offences that took place during a protected strike by SACCAWU and its members in 2021.

SACCAWU claimed that the Labour Court lacked jurisdiction to order the payment of compensation for losses attributable to a protected strike. At issue was whether such a claim is governed by section 68(1)(b) or whether it may only be pursued under the common law of delict in the High Court. There was no dispute that any unlawful conduct and breaches of the picketing rules that occurred during a protected strike were not constitutionally protected.

The Labour Court dismissed SACCAWU's claims. The mater was then referred on appeal to the Labour Appeal Court.

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Affirmative action measures: when are they an "absolute barrier"?

In Solidarity obo Erasmus v Eskom Holdings SOC Ltd (C1001/18) [2024] ZALCCT 18 (24 May 2024) the court had to decide if the exclusion of white applicants in the short-listing stage of a recruitment process creates an "absolute barrier" to employment, as prohibited in section 15(4) of the EEA.

Eskom is a designated employer in terms of the EEA and is required to prepare and implement an employment equity plan that will achieve reasonable progress towards employment equity in the workplace.

The employee, a white male, had been employed by Eskom since 1988. He was employed as Senior Advisor Outage Coordinator and applied for the post of Manager: Site Outage Execution at Peaking Power Station for the Group Technology Division. Neither the employee nor any of the other applicants were appointed at the end of the recruitment process, despite a senior manager in the department wanting to appoint him. When he was not appointed, he referred an unfair discrimination dispute to the Labour Court.

Based on the evidence led, the Labour Court found that Eskom's intention was to only shortlist members of the designated group (Black applicants and females) at the shortlisting stage. Whilst the employee was shortlisted and interviewed, he had described himself as "African" on the application form, as he said this was how he regarded himself

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ARTICLE: Is a union bound by its certificate of registration and constitution?

By Prof Alan Rycroft

Trade union membership in South Africa is declining at an alarming rate and is currently standing at 23% of employees, down from 34% in 2016. A consequence is that some unions which have traditionally (and in terms of their constitutions) served a specific industry are now seeking members in other industries.

In this article we focus on two recent cases where employers challenged the ability and legality of trade unions to operate outside of the industry for which had been they registered in terms of their constitutions.

If a union's constitution limits it to the clothing and textile industry, can the union expand to the furniture industry without formally registering this change? In South African Clothing and Textile Workers Union v Bargaining Council for the Furniture Manufacturing Industry - KwaZulu-Natal and Others (DA9/22) [2024] ZALAC 20 (2 May 2024) the National Office Bearers of SACTWU, by formal resolution, purported to extend its scope of operations to include "the furniture industry". This was challenged by the Bargaining Council for the Furniture Manufacturing Industry - KwaZulu-Natal and its members.

The facts in Road Accident Fund v National Union of Metalworkers of South Africa (NUMSA) and Another (J283/2024) [2024] ZALCJHB 201 (13 May 2024) were that the Road Accident Fund (RAF) embarked on a Customer Relationship Management (CRM) process to improve and enhance service delivery, which it claimed was unrelated to an unresolved section 189A retrenchment process.

The RAF claimed this variation in the responsibilities of call-centre agents was merely a change in a work practice. The remuneration and the jobs they occupied remained the same. NUMSA referred a dispute to the CCMA in terms of section 64(4) of the LRA, alleging a unilateral change to terms and conditions of employment.

Conciliation failed to resolve the dispute and it was more than six months later that picketing rules were issued together with the outcome certificate. Although Numsa issued a strike notice, the RAF obtained an interim interdict because insufficient notice of the strike had been given.

The Labour Court had to deal with the legality of the union to lead a strike.

Read more (Worklaw subscriber access only)


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Bruce Robertson
June 2024
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