Gilesfiles Updates: Latest Judgments March 15, 2010

GilesFiles Updates: Latest Judgments March 15, 2010

These 30 judgments, with hyperlinks to SAFLII, are included in the latest current issue of the Index of Work Law. They are arranged in reverse chronological order under the various courts.

Constitutional Court (1)

Billiton Aluminium SA Ltd v Khanyile (GF 8173) [Froneman J, 18.02.2010]

[2010] ZACC 3 (CC)

Refused leave to appeal from LAC (Zondo JP) – upheld setting aside of compensation order of 12 months pay – restored reinstatement award of CCMA with retrospective effect to 2.08.2001 & payment of R436,000 compensation – unfair reason to terminate related to alleged disclosure of confidential information in breach of company policy – employer only had itself to blame for any delays –no constitutional duty on courts to seek after-judgment facts where existing rules for adducing further evidence disregarded see GF 7918 (LAC) .

Supreme Court of Appeal (1)

South African Maritime Safety Authority v McKenzie (GF 8189) [Wallis AJA, 15.02.2010]

[2009] ZASCA 2 (SCA)

Allowed appeal from HC (Vilakazi AJ) – law does not recognise a cause of action outside the LRA when employment terminated - employee compensated for unfair termination of employment – claiming R5.2m damages for breach of alleged implied term of ‘just cause” in employment contract – framework of law considered - previous SCA decisions considered and distinguished – special plea must not be seen as a challenge to the jurisdiction of the HC – true issue is possible rights outside LRA.

Competition Appeal Court (0)

No additions

Labour Appeal Court (5)

SAMWU & 16 others v Kannaland Municipality (GF 8159) [Tlaletsi AJA, 29.01.2010]

[Unreported case CA 5/07 (LAC)

Disallowed appeal from judgment in LC – upheld order - fair reason to terminate base on operational requirements – powers of Municipal Managers considered – clear economic reasons for termination.

Department of Labour v GPSSBC (GF 8150) [Tlaletsi AJA, 29.01.2010]

[2010] JOL 24958 (LAC)

Allowed appeal from judgment in LC – set aside order and reinstated award upheld - fair reason to terminate related to conduct – sexual harassment – employees had frustrated employer’s attempt to apply corrective discipline.

Sanlam Life Insurance Ltd v CCMA (GF 8154) [Jappie JA, 18.09.2009]

[Unreported case JA 38/08 (LAC)

Allowed appeal from order of LC on review of arbitral award – set aside award as applicant had not proved any employment relationship - independent financial advisor - contract made that clear.

Vodacom (Pty) Ltd v CWU & others (GF 8201) [Davis JA, 2.06.2009]

[Unreported case JA 16/08 (LAC)

Allowed appeal & discharged rule nisi issued on 12.03.2007 to interdict strike - CCMA certificate of non-resolution – cannot contradict provisions of LRA s65 – unlawful strike in contravention of collective agreement – see LC - GF 6972 & GF 6909.

Mutual Construction Co Tvl (Pty) Ltd v Ntombela NO (GF 8170) [Ndlovu AJA, 8.05.2009]

[2010] JOL 24970 (LAC)

Allowed appeal from LC – set aside arbitral award of reinstatement – fair reason to terminate employment related to conduct in form of gross dishonesty – fraudulent entries on time-sheets – completely destroyed trust relationship – Sidumo review test applied.

High Court (1)

Sibeko v Premier Province of Northern Cape (GF 8111) [Majiedt J, 6.11.2009]

[2010] 2 BLLR 207 (HC-NCD)

Refused application to enforce fixed-term contract – High Court lacking jurisdiction as matter essentially a labour dispute – no cause of action based on common law – alleged that termination unlawful in the absence of a pre-termination hearing.

Equality Court (0)

No additions

Labour Court (23)

Solidarity obo Barnard v SA Police Services (GF 8181) [Pretorius AJ, 26.02.2010]

[2010] JOL 25074 (LC)

Granted application to promote applicant to post of superintendent with retrospective effect – EEA s6 – applicant best candidate – race discrimination – ignored right to equality & dignity – employer failed to discharge onus of proving fair discrimination – failure to promote unfair and not in compliance with EEA.

BP Southern Africa (Pty) Ltd v NBCCI (GF 8158) [Van Niekerk J, 29.01.2010]

[2010] JOL 24960 (LC)

Refused application for make award an order of court – LRA s158(1)(c) – award simply stated that termination of employment is upheld – award not capable of being executed - review application lodged but delayed – employer sought order to preclude further review proceedings – alleged jurisdictional issues but Labour Court is a single court without divisions – LRA s156 – declined to follow Botha v Whitey Bester (unreported LC case P107/03).

CEPPWAWU v Print Tech (Pty) Ltd (GF 8175) [Basson [AC] J, 29.01.2010]

[2010] JOL 24961 (LC)

Upheld claim and awarded 12 months compensation – unfair reason to terminate based on operational requirements – rejected argument that there had been a transfer of any business (services) as a going concern to a labour broker – LRA s197 - only contracts had purported to be transferred.

Coca Cola Fortune (Pty) Ltd v FAWU (GF 8176) [Bhoola J, 28.01.2010]

[2010] JOL 24962 (LC)

Confirmed rule as trade union failed to show cause why secondary strike should not be declared unprotected - LRA s66(2) re LRA s68 – applicant is franchisee of Coca Cola Africa - bottles & distributes soft drink products with depots throughout SA - procedural requirements complied with – only issue is compliance with substantive requirements – LRA s66(2)(c) – proportionality test – nexus requirement discussed - nature and extent unreasonable in relation to ABI, the primary employer.

Maritz v Calibre Clinical Consultants (Pty) Ltd (GF 8164) [Basson [AC] J, 26.01.2009]

[2010] JOL 24936 (LC)

Upheld claim and awarded 12 months remuneration as compensation – unfair reason to terminate based on operational requirements – substantively & procedurally unfair – misled employee into believing no viable options - fraud unit continued to operate – high degree of fairness required – principles re-stated.

Chillibush Communications (Pty) Ltd v Johnston NO (GF 8157) [Basson [AC] J, 26.01.2010]

[2010] JOL 24971 (LC)

Reviewed and set aside ruling of CCMA – order granted to effect that creative managing director was also an employee with rights under the LRA – on ceasing to be a director his services as an employee were not automatically terminated – in fact he was “dismissed” on 7.12.2006 – dispute about fairness of termination referred to CCMA for determination.

Cosme v Polisak (Pty) Ltd (GF 8188) [Molahlehi J, 22.01.2010]

[2010] JOL 24957 (LC)

Granted application and awarded 24 months compensation for an automatically unfair “dismissal” – age discrimination – LRA s187(1)(f) – applicant appointed at age 63 – employer failing to prove retirement policy at age 65 – no agreed or normal age of retirement for applicant – LRA s187(2)(b) not applicable.

SATAWU v SAA (Pty) Ltd (GF 8174) [Molahlehi J, 22.01.2010]

[2010] JOL 24956 (LC)

Granted application to amend statement of claim – employer not showing any valid reason why statement of claim could not be amended – alleged unfair termination of employment related to medical condition – amendment will ensure full & proper ventilation of issues without doing an injustice to the other party.

Solidarity obo Strydom v Albert Luthuli MC (GF 8156) [Van Niekerk J, 14.01.2010]

[2010] JOL 24965 (LC)

Granted applications to condone late filing of statements of claim – claims against organ of State – claims for severance pay, long service bonus & pro-rated performance bonus ito BCEA s77 - considered relevant factors – meaning of “good cause” - refused to uphold employer’s 3 special pleas – in particular rejected argument that claim for severance pay must be referred to CCMA – cause of action based on contract and deeming provision re “retrenchment”.

Mafika Sihlali v SA Broadcasting Corporation Ltd (GF 8155) [Van Niekerk J, 14.01.2010]

[Unreported case J 700/08 (LC)

Granted employer’s application for absolution from the instance - claim for remuneration for balance of fixed-term contract - BCEA s77(3) applicable – employer contending that applicant had resigned in an sms, alternatively he had repudiated his contract and failed to tender his services – held that a resignation is a unilateral act and once communicated it does not require acceptance & cannot be withdrawn without the consent of the employer.

Super Group Autoparts t/a Autozone v Hlongwane NO (GF 8163) [Ngalwana AJ, 18.12.2009]

[2010] JOL 24895 (LC)

Refused review application – upheld arbitral award and reinstated employee - unfair reason to terminate employment related to alleged assault – employer failed to discharge onus of proof at arbitration – reluctantly applied Sidumo review test.

IMATU obo Gloss v Umgeni Municipality (GF 8169) [Conradie AJ, 15.12.2009]

[2010] JOL 24941 (LC)

Granted review application – set aside arbitral award and reinstated employee - unfair reason to terminate employment related to alleged dishonesty – employer failed to discharge onus of proof at arbitration - applied Sidumo review test.

IMATU obo Zungu v SALGBC (Ethekwini Municipality) (GF 8167) [Conradie AJ, 15.12.2009]

[2010] JOL 24939 (LC)

Refused review application – upheld arbitral award – review application 9 weeks out of time – refused condonation for late filing as full explanation for delay not provided.

Woolworths (Pty) Ltd v CCMA (Gunase NO) (GF 8166) [Molahlehi J, 14.12.2009]

[2010] JOL 24938/25020 (LC)

Refused review application – upheld reinstatement arbitral award - unfair reason to terminate employment related to conduct – alleged concealment of merchandise on her person – long clean record and sanction of termination not appropriate - applied Sidumo review test.

Johannesburg City Parks v Mphahlani NO (SALGBC) (GF 8161) [Van Niekerk J, 10.12.2009]

[2010] JOL 24894; [2010] 4 BLLR ? (LC)

Granted review application – set aside reinstatement arbitral award granted in absence of employer & by default – employer, a section 21 company, challenged jurisdiction of SALGBC – demarcation dispute pending - arbitrator failed to consider the objection to jurisdiction – LRA s62 re demarcation disputes applicable and proceedings should have been adjourned.

Kruse v Gijima AST (Pty) Ltd (GF 8185) [Pretorius AJ, 8.12.2009]

[2010] JOL 24998 (LC)

Granted application and answered 2 reserved questions in applicant’s favour – (a) Labour Court has jurisdiction to determine the dispute – BCEA s77(3) includes “collateral agreement” – (b) not a case of Labour Court exercising extra-territorial jurisdiction – “collateral agreement” concluded and to be performed in South Africa.

De Villiers v HOD, Education, Western Cape Province (GF 8187) [Van Niekerk J, 4.12.2009]

[2010] JOL 24964 (LC)

Granted review application & set aside administrative decision not to reinstate employee after deemed discharge – EEA 76/1998 s14(1) – decision flowed from statutory powers not employment contract – also held that the refusal to reinstate was not a “dismissal” – termination resulted from operation of law .

Pam Golding Properties (Pty) Ltd v Erasmus (GF 8186) [Van Niekerk J, 4.12.2009]

[2010] JOL 24963 (LC)

Refused review application – upheld arbitral ruling – employer challenged jurisdiction of CCMA claiming that applicant was not an employee but an independent contractor – endorsed multi-factorial and dominant impression test - applied Sidumo review test.

SAMWU obo Madonsela v Umlalazi Municipality (GF 8168) [Conradie AJ, 3.12.2009]

[2010] JOL 24940 (LC)

Granted application to make award order of court – LRA s158(1)(c) – employer ordered to reinstate employee – unfair reason to terminate related to alleged misconduct – unacceptable reason for delay in employer’s review application.

IMATU v SALGBC (GF 8171) [Pillay [D] J, 26.11.2009]

[2010] JOL 24996 (LC)

Refused application for declaratory order – collective agreements relating to TASK grading system & resolution of disputes – review process for determining inconsistent outcomes for comparable posts - Labour Court cannot conclude a new collective agreement for the parties.

First National Battery (Pty) Ltd v CCMA (Nduzulwana NO) (GF 8165) [Pillay [D] J, 19.11.2009]

[2010] JOL 24937 (LC)

Granted review application & set aside arbitration award – fair reason to terminate relating to dishonesty – chief shop steward alleged to have taken a bribe to pacify his constituency – clearly wrong whether labelled a bribe or extortion – arbitrator losing moral compass – judge directing National Director of CCMA to investigate & monitor competence of arbitrator.

Algoa Bus Company v SATAWU (GF 8110) [Mthembu AJ, 1.10.2009]

[2010] 2 BLLR 149 (LC)

Upheld claim for damages against trade union and employees - unlawful & unprotected strike –awarded R100,000 as compensation payable in monthly instalments.

Vodacom (Pty) Ltd v CWU & others (GF 6972) [Rampai AJ, 28.05.2007]

[2008] JOL 21311 (LC)

Discharged rule nisi issued on 12.03.2007 to interdict strike - important questions of law - CCMA certificate – LRA ss 64 & 65 & PAJA sec 1 - administrative action – set aside by LAC see GF 8201 after leave to appeal granted – see GF 6909.

Land Claims Court (0)

No additions

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