Labour Court Main Division - 2024

Labour – Unfair Dismissal – Gross negligence – Demotion – To assess substantive fairness of procedure for dismissal – Employment relationship ceases from the date that demotion is communicated and endorsed.

Labour law – Arbitration – Appeal against award – At the centre of the dispute is a collective agreement concluded between the appellant (the employer) and the first respondent (a registered trade union in terms of the Labour Act 11 of 2007) – Respondent in the appeal bears no onus to prove that the award is right – Appellant bears the onus of proving that the award is wrong – Arbitrator’s decision that she had no power to vary the terms of the collective agreement upheld – Appellant failed to persuade the court that the award is wrong – Appeal, accordingly, dismissed.   

Labour Law – Unfair dismissal – Effective date of dismissal, whether it is upon dispatch of letter of dismissal or receipt thereof by the employee.

Labour law – Labour appeal – Against arbitration award – Poor work performance – Consistency in disciplinary fairness – Parity principle.

Dismissal – For poor work performance – Requirements for lawful dismissal –Substantive fairness – Employer to conduct assessment of employee's performance – Coaching and training essential for proper assessment.

Labour Law – Appeal in terms of s 89(2) of the Labour Act – Prescription in terms of s 86(2)(b) – Termination of employment contracts – No evidence was adduced before the arbitrator – Appeal succeeds.

Legislation – Labour Act – Declaratory order – Application for an order to declare a contract of employment unlawful and unenforceable in terms of s 117(1)(d) of the Labour Act 11 of 2007 – Point of law in limine that the Labour Court lacks jurisdiction to hear and adjudicate the application raised.

Labour – Appeal – Arbitration award – Labour Act 11 of 2007– Point in limine – Defective grounds of appeal

A defective notice of appeal is dispositive of the matter – An appeal is lodged in terms of s 89(1)(a) of the Labour Act, on questions of law alone.

Labour Law – Appeal in terms of s 89(1)(a) of the Labour Act, 2007– Appeal against decision of the Labour Commissioner in dismissing a point in limine – Defective LC 21 – Legal formalism – Form over substance

Labour Appeal – Labour Act 11 of 2007 – Appeal against an award issued by the arbitrator - Appeal upheld.

Civil procedure – Whether the court is functus officio after striking a defective notice from the roll without finality – Does not equate to final determination that would invoke functus officio.

Labour Law — Unfair labour practice — Appellant employed on fixed term contract — Contract terminated by effluxion of time — No notice of termination required.

Labour law – Arbitrator’s award – Award of monetary compensation – Arbitrator making award based on mathematical calculations whereby amount of compensation was reached by multiplying monthly remuneration of employee with the number of months between date of dismissal and date dismissal adjudged to be unfair by arbitrator – Arbitrator’s decision set aside.

Labour Law – Arbitral award – Application to review and set aside the award in terms of s 89(4) and (5) of the Labour Act 11 of 2007 – What constitutes gross irregularity – The duty to set out clear grounds for review in compliance with s 89(5) – Laws and rules of court must be complied with by all including lay litigants – Where the propriety of a third party is raised there is a duty to join such third party to the proceedings – Gross irregularity by the arbitrator not established.

Labour – Appeal – Arbitration award – Employment agreement – Labour Act No. 11 of 2007– Condonation – Heads of arguments are for the convenience of the court – Pacta sunt servanda doctrine

Labour law – Arbitration award – Insolence – Warrants dismissal where the same is wilful and serious – Insubordination – Where insolence is so serious, it leads to insubordination – The foundation of an employee-employer relationship is respect and obedience – A consistent lack thereof renders the working relationship intolerable

Labour appeal — Labour Act 11 of 2007 — Appeal against arbitration award — Section 33 of the Labour Act — Dismissal — Whether dismissal was substantively and procedurally unfair — Appellants bears the onus to prove reasonable prospects of success on appeal — Appeal upheld.

Labour Law – Appeal against decision of the Labour Commissioner – Decision in favour of the first respondent  – Appeal restricted to questions of law only in terms of Labour Act 11 of 2007, section 89(1)(a) – Whether the arbitrator erred in law when she came to the conclusion that the matter had not become settled – Appeal unopposed.

Labour appeal – Unopposed – Arbitrator erred in law in awarding compensation based on conclusions not supported by the evidence.

Labour Law – Appeal against an arbitration award – Appeal restricted to questions of law only in terms of Labour Act 11 of 2007, section 89(1)(a) – Whether decision of arbitrator was one which a reasonable arbitrator could make taking into account all the evidence and facts – Appeal against an arbitration award – Non-compliance with rule 17(16) – Non-compliance fatal – Appeal proceeds unopposed.

Practice – Labour law – To note an appeal against an arbitration award, forms 11 and LC 41 notices of appeal must both be delivered to the registrar, the labour commissioner and the other parties within 30 calendar days of receipt of the award and the form LC 41 notice of appeal must contain the questions of law appealed against and the grounds of appeal – To note a cross-appeal against an arbitration award, the notice of cross-appeal, setting out the same information required in the notice of appeal, must be delivered to the labour commissioner within seven days after the noting of the appeal, and the cross-appeal must be sent simultaneously with its lodging to all other parties, and proof of service thereof, on form LG 36, must be filed with the labour commissioner and the registrar – The term ‘deliver’ in the Labour Court Rules requires service on all parties under Labour Court r 5 and filing the original with the registrar – In the Rules Relating to the Conduct of Conciliation and Arbitration (Conciliation and Arbitration Rules) ‘deliver’ means to serve on other parties under Conciliation and Arbitration r 6 and file with the labour commissioner – If an appeal or cross-appeal is not properly noted, there is no appeal or cross-appeal.

Practice – Condonation – Labour Court r 15 – Meaning of ‘good cause’ restated – Applicant’s explanation in the first condonation application is insufficient, and in the third condonation application, it is weak – Applicant failed to show he has a reasonable prospect of success – Applicant has no prospects of success – First respondent’s explanation in the second condonation application is unreasonable and insufficient – First respondent has no prospects of success – The condonation applications cannot succeed.

Labour law – Unfair dismissal – Employer bearing onus to prove fairness of the dismissal – Court finding that arbitrator properly found that the dismissal was substantively unfair and properly awarded reinstatement and compensation.

Labour Act, 2007 – Labour law – Appeal against an award of arbitrator – Appeal in terms of section 89 (1)(a) of Act 11 of 2007 – Whether dismissal was substantively unfair – Appeal upheld.

Labour law – Appeal against arbitration award – Test for breaching a suspension condition, and that of bringing the company’s name into disrepute – Rule 20 of the Labour Court Rules – Insubordination – Substantive fairness – Fiduciary duty owed to the employer.

Statute – Interpretation – Word ‘days’ in s 89(2) Labour Act 11 of 2007 and Conciliation and Arbitration r 23(2) not defined therein – Section 4 Interpretation of Laws Proclamation 37 of 1920 applies.

Statute – Interpretation – Section  89(2) Labour Act 11 of 2007 – Award being served – Service of award and word ‘serve’ not defined in Act – Section 129 of the Act – Service of documents – Section 129(2) of the Act does not apply to service of award – Conciliation and Arbitration r 21(1) read with r 1(1) and 6 apply – Arbitrator must serve award on parties under Conciliation and Arbitration r 6 – Conciliation and Arbitration r 6(3)(a) – Service on company – Irregular service of ruling on applicant company by email – Not a complete failure of service – Substantial compliance with rule – In this instance interpretation of word ‘must’ therein directory and permissive requiring substantial compliance with rule – Appeal noted timeously.

Practice – Labour Court r 17(1) – Different types of appeal – Labour Court r 17(1)(c) – Appeal against arbitration tribunal award – Labour Court r 17(3) applies together with Conciliation and Arbitration r 23 – Labour Court r 17(2) does not apply – Labour Court r 17(3) does not require grounds of appeal to be set out in Form 11 for appeal against award – Labour Court r 17(2) requiring grounds of appeal in Form 11 for other types of appeal distinguished – applicant’s Form 11 not defective.

Condonation – Late prosecution and reinstatement of appeal – Labour Court r 15 – Must show good cause – Two requirements restated – Principles and factors restated – Balancing exercise.

Rescission application – s 88(a) Labour Act 11 of 2007 – principles of High Court r 103(1)(a) apply to s 88(1) – an applicant need not show good cause – such judgment or order should be rescinded without further enquiry – court entitled to have regard not only to record of proceedings of court concerned but also facts set out in affidavit – order granted erroneously where no proper service.

Labour Law – Arbitral award – Application to review and set aside the award in terms of s 89(4) and (5) and (10) of the Labour Act 11 of 2007 – The Labour Act provides grounds for review which the applicant must prove in order to succeed. Grounds of review which are not set out in the notice of motion are not available to applicant during the hearing – Recusal applications must be brought before the specific adjudicator and not third parties – Waiver of the right to cross-examine a witness.

Labour Law – Arbitration award – Section 89(1)(a) of the Labour Act 11 of 2007 – A party to a dispute may appeal to the Labour Court against an arbitrator’s award made under s 86 on inter alia any question of law alone.

Labour Law – Arbitration Award – Award for monetary compensation – Calculation of – Whether evidence was led to enable the arbitrator to make a monetary compensation award.

Labour Law – Arbitration Award – Appeal to Labour Court – Interference by this court can only take place where no reasonable court could have come to the conclusion that the arbitrator has come to or no evidence was led – Compensation award for lost salary made in the absence of evidence, and in the absence of agreement between the parties on the monthly income – Award perversely made, and a valid question of law is to be determined on appeal.