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 'Harassment by an employee: How can an employer protect itself from liability to pay compensation?'. This deals with employer liability under section 60 of the Employment Equity Act, which has taken on even more significance since the new Harassment Code of Good Practice was gazetted. We also discuss three new cases: The first case looks at when the Labour Court on review must not defer to an arbitrator's assessment. The second case considers criteria used in an interest arbitration to decide a wage dispute. The third case looks at what constitutes an unlawful exercise of powers in the municipal sector.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
When must the Labour Court on review intervene?
In Reinhardt Transport v National Bargaining Council for the Road, Freight and Logistics Industry and Others (JA72/2021) [2022] ZALAC 115 (18 October 2022) it was held that if the reasons given by an arbitrator are not reasonably justifiable, considering the evidence led at the arbitration, the Labour Court is not at liberty to simply say fairness is a matter to be decided by the commissioner and refrain from interfering.
Read more (Worklaw subscriber access only)
Interest arbitration on wages: how does the arbitrator decide?
In Working On Fire (Pty) Ltd v National Union of Metalworkers of South Africa (NUMSA) and Others (DA5/2021) [2022] ZALAC 114 (21 October 2022) it was held that where an arbitrator exercises a discretion to choose different but equally permissible alternatives, an appellate or review court should not readily substitute the decision of the decision-maker with that of its own.
In the context of a wage dispute referred to an interest arbitration, the question for the reviewing court was not whether the award was wrong or whether it held a different view to that of the arbitrator, but whether the award was reasonable in relation to all the material available to the arbitrator.
Read more (Worklaw subscriber access only)
Unlawful exercise of powers
In Ekurhuleni Metropolitan Municipality v Mabusela N.O. and Others (JA 56/21) [2022] ZALAC 112 (13 October 2022) three principles were confirmed:
- If a power that was given to be exercised by a particular official was exercised by another official, who was not authorised by law to do so, such exercise would be illegal or unlawful.
- The failure to give effect to an illegality can never be an unfair labour practice.
- The applicable review test of an arbitrator's interpretation of a legal instrument is correctness and not reasonableness.
ARTICLE: : Employee harassment - How can an employer protect itself from liability to pay compensation?
by Prof Alan Rycroft
The concept of "vicarious liability" says that an employer can be held liable for the wrongful acts of its employees during the course of their employment. The idea behind this is that an employer is meant to control and supervise its employees, and the failure to do so renders the employer liable as if the employer, and not the employee, committed the wrongdoing.A potential restriction on vicarious liability for harassment and discrimination by an employee is found in section 60 of the Employment Equity Act. In his article Prof Rycroft discusses what an employer must do to avoid liability under this section when harassment occurs. He discusses the cases that have had to decide employer liability under this section.
The new Harassment Code of Good Practice gazetted in March 2022 has made it even more important for employers to take seriously the risk of compensation claims under section 60 of the EEA.
Read more (note - only available to Worklaw subscribers)
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Bruce Robertson
November 2022
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