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 "When should condonation be granted?' in light of 2 recent LAC decisions. We also discuss three other new judgments: The first case asks what the obligations are of a reinstated employee. The second case considers what must be established to prove inconsistency in disciplinary sanctions. The third case asks whether a delay in bringing disciplinary action automatically renders the disciplinary proceedings unfair.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
What are the obligations of a reinstated employee?
In South African Municipal Workers Union obo Koopman v City of Cape Town and Others (CA5/2023) [2025] ZALAC 7 (22 January 2025) the Labour Appeal Court ruled on employees' obligations when an arbitrator or court orders that they be reinstated after a finding of an unfair dismissal.
The employee's dismissal in this case was ruled to be unfair at arbitration by the South African Local Government Bargaining Council (SALGBG), which ordered his retrospective reinstatement with backpay. This was followed by a Labour Court application against the municipality to show cause why it should not be held in contempt for failing to comply with the certified arbitration award.
The Labour Court's judgment focused on whether the award had prescribed. It reasoned that arbitration awards are 'debts' for the purposes of the Prescription Act and that they prescribe after 3 years. The LC dismissed the application having found that it had already prescribed in 2017, 5 years before it was certified.
Whilst Samwu challenged the LC's interpretation of prescription in its appeal to the Labour Appeal Court, the outcome of the case turned on a completely different principle, namely the failure of the employee to tender services after being reinstated.
Read more (Worklaw subscriber access only)
Proving inconsistency
In Bidvest Protea Coin (Pty) Ltd v South African Transport and Allied Workers Union and Others (JR74/24) [2025] ZALCJHB 17 (16 January 2025) the question was what must a dismissed employee show before it can successfully argue that the employer has been inconsistent in applying its disciplinary procedures.
The employer employed two employees as Tactical Officers who were dismissed for misconduct (sleeping on duty). The employees' union SATAWU referred a dispute to the CCMA challenging the substantive unfairness of their dismissals, arguing that (a) the employer acted inconsistently in dismissing them while several other employees in previous incidents of sleeping on duty received lesser or no sanctions, and related to this, (b) the sanction of dismissal was inappropriate.
The employees did not deny that they slept while on duty. Their case was that, this being their first offence, they were treated differently from other employees who also slept on duty for the first time. SATAWU provided eight comparative cases in which employees had not been dismissed for a first offence. Whilst the employer knew of these cases, it disputed that it had been inconsistent as the facts of this case were different. The employer's case was that the employees did not merely fall asleep accidentally as previous employees had done, but that they had both taken a decision to leave their posts to go to sleep, thus intending to deceive their employer. Nevertheless, the CCMA held that the dismissals were unfair because the employer had not acted consistently.
The award was taken on review to the Labour Court.
Read more (Worklaw subscriber access only)
Delay in lifting suspension and starting the disciplinary hearing
In De Wet v CCMA and Others (C511/2023) [2025] ZALCCT 7 (2 January 2025) the question was whether a delay in bringing disciplinary action automatically renders the disciplinary proceedings unfair.
In 2015/2016, SFF, a wholly owned subsidiary of the Central Energy Fund, sold 10 million barrels of South Africa's strategic stock of crude oil. The Board discovered the matter in February 2016. Following a forensic investigation, SFF sought a court order to have the transactions reviewed and set aside.
Two years after the forensic report, SFF placed the Applicant on precautionary suspension pending disciplinary proceedings. The Applicant contended that the suspension was unwarranted. She reasoned that she had not been involved in the unlawful sale; she gave her full cooperation in all the forensic and criminal investigations; and SFF had known about the matter since 2016 and in all that time there was no suggestion or concern that she was involved in or may be involved in the destruction or interference of evidence.
Read more (Worklaw subscriber access only)
ARTICLE: When should condonation be granted?
By Prof Alan Rycroft
One of the core objectives of the LRA is "the effective resolution of labour disputes" (s 1(d)(iv)). To achieve this, the Act stipulates specific time periods by which certain events must happen. For example:- An employee has 30 days from the date of dismissal to refer the dispute to the CCMA or council (LRA s 191(1)(b)(i));
- An employee has 90 days from the date of an unfair labour practice to refer the dispute to the CCMA or council (LRA s 191(1)(b)(ii));
- An employee must within six months after the act or omission that allegedly constitutes unfair discrimination, refer the dispute to the CCMA (EEA s 10(2));
- After conciliation, the party referring the dispute has 90 days to request arbitration (LRA s 191(11)).
- After arbitration, a party must within 6 weeks apply to the Labour Court to review the award (LRA s 145(1)(a)).
CCMA Rule 9(3) sets out 5 factors which the employee must address in the condonation application, and the Commissioner must consider all these aspects:
- the degree / extent of the lateness of the referral;
- the reason for the lateness;
- the prospects of success on the merits;
- the prejudice to the other party, and
- any other relevant factors.
Read more (Worklaw subscriber access only)
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Bruce Robertson
March 2025
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