by Marius Scheepers 2 years ago
199
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CA17/2020
Department of Defence v Farre and Others (CA17/2020) [2021] ZALAC 33 (11 October 2021)
she was then transferred back to her previous post with the concomitant reduction of salary and obligation to repay R 178 88.98 clearly constituted the kind of practice which falls within the scope of principle of an unfair labour practice
Apollo Tyre South Africa (Pty) (Ltd) v CCMA [2013] 5 BLLR 434 (LAC) this Court agreed with the minority judgment of Goldstein AJA in Department of Justice v CCMA (2004) 25 ILJ 248 (LAC) para 14
[19] Whatever the position it seems to me respectively with the view expressed in paragraph 9 that item 2(1)(b) provided only for rights which arose ex contractu ex lege was clearly wrong. If that was so, the provision would have been redundant since such rights would have been enforceable in the absence of item 2 (1)(b). It is significant that item 3 (4)(b) expressly provided for a dispute referred to inter alia in item 2 (1) (b) to be resolved in arbitration. It is significant to that the introductory words in item 2 (1) and the cardinal words in item 2 (1)(b) concerned an unfair labour practice and unfair conduct. Just as the LRA provides for disputes arising from unfair dismissals in respect of which there are no contractual remedies and remedies of common law to resolve an arbitration so was item 2 (1)(b) designed for situations when neither the contract of employment nor the common law provided an employee with a remedy.[20] In following this approach, Musi AJA in Apollo Tyres said at para 51:An employee wants to use the unfair labour practice jurisdiction in s 186 (2) (a) relating to promotional training does not have to show that he or she has a right to promotion or training and ought to have remedy when the fairness of the employers conduct relating to such promotion (or non-promotion) or training is challenged.
[21] In my view, therefore the third respondent was correct to hold that the conduct of the appellant was unfair in that it was unfairness of the practice rather than the breach of a preexisting right which formed the basis of the claim.
[14]... The court a quo thus held that the third respondent had reasonably concluded that this action on the part of the appellant constituted a demotion. The learned judge also found that the third respondent had correctly found that the appellant had not complied with the audi alteram partem rule before it had taken the decision effectively to demote the first respondent. Further the learned judge found that the reason for this demotion was that the employer dragged its feet in reclassifying her post. Furthermore, the functions which the first respondent had performed would have always been scientific and not administrative which was clearly evident from the description of that which she was required to perform in terms of her post.
JR2267/15
Office of the Premier: Limpopo Provincial Government v Phooko NO and Others (JR2267/15) [2021] ZALCJHB 106 (26 May 2021)
[11]...Regard being had to the decision of Apollo Tyres South Africa (Pty) Ltd v CCMA[2] a benefit must be something extra[3] that arises from a contract, a party claiming a benefit out of a contract must prove the existence of that contract and the term that gives him or her that right to the benefit. This Court accepts that it is possible that during the benefits dispute parties may quibble around the terms of that contract, which may lead an arbitrator into a situation where the terms of the contract are interpreted using the known and accepted interpretative tools to find or not find the right.
[13] It has long been held that a benefit is something extra other than remuneration which is contractually, legislatively guaranteed or legitimately expected. The Resolution does not guarantee any benefit but a translation promotion or a pay progression salary increment. The salary increment is not something extra but remuneration. This Court takes a firm view that Mokubela has nonetheless failed to show that a benefit is due to her contractually. That being the case, a conclusion that the Office of the Premier has committed an unfair labour practice in relation to the provision of benefits is not one a reasonable decision maker may reach.
[14] Assuming that benefits are involved in this dispute, the question that must follow is whether Mokubela had discharged the onus that the Office of the Premier has committed an unfair labour practice. An unfair labour practice claim is akin to a contractual claim. The employee must prove (a) that a contract is extant, if reliance is placed on one, and that the other party has breached that contract.
JR 932/19
Independent Municipal and Allied Trade Union obo Dhlamini v Moqhaka Municipality and Others (JR 932/19) [2021] ZALCJHB 60 (24 May 2021)
[12] Regarding the first issue, the arbitrator relied on the Concise Dictionary, the judgments in Schoeman and another v Samsung Electronics SA (Pty) Ltd; Sithole v Nogwaza NO and others and Northern Cape Provincial Administration v Hambridge NO and others in reaching the following conclusion:27. Although opinions as to what constitutes a benefit (as opposed to remuneration) differ, the common thread running through all the positions and academic writings is that a benefit constitutes a material benefit such as pensions medical aid, housing subsidies, insurance, social security or membership of a club or society.28. In other words, the benefit must have some monetary value for the recipient and be a cost to the employer. It is also something which arises out of a contract of employment.
29. According to Northern Cape Provincial Administration v Hambridge NO [1999] 7 BLLR 698 (LC) benefit is a supplementary advantage conferred on an employee for which no work is required. About the letter in hand, the acting position is not available to all employees. 30. The difference is that benefits are available to all employees, but an acting position is only available to employees that qualify or meet the minimum requirements and who are to undertake extra work.
[13] It is apparent from the reading of the award that the arbitrator did not consider the later developments in law, particularly in relation to the notion that an employee has to prove a pre-existing right prior to bringing a benefit claim. In Independent Municipal and Allied Workers Union obo Vester v Umhlahhuze Municipality,[2] this Court dealt with a review of an award in terms of which an arbitrator had found that an acting allowance did not constitute a benefit in term of section 186(2)(a). Having reviewed the case law and the academic writings, the Court found, inter alia, that:an unfair labour practice dispute over an acting allowance, in which an employee is making the claim on the basis that it was granted to him or others in similar circumstances on other occasions, is a claim that the employer has unfairly refused to confer the benefit on the occasion in question
JA03/2020
Total SA (Pty) Ltd v Meyer and Others (JA03/2020) [2021] ZALAC 12 (2 June 2021)
[25] Turning to the first respondents cause of action, it was predicated on the definition of unfair labour practice as set out in s 186 (2) (a) of the LRA, which includes any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the provisions of benefits to an employee. In Apollo Tyres South Africa (Pty) Ltd v CCMA [2013] 5 BLLR 434 (LAC) this Court gave content to the phrase the provisions of benefits to an employee as follows:In my view, the better approach would be to interpret the term benefit to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employers discretion. (my emphasis)
[33]...This it failed to do, in that there was no evidence put up to gainsay the first respondents case of differentiated treatment. The only conclusion that can be drawn is that reached by the court a quo, namely, that the appellants decision was arbitrary, capricious and inconsistent, and thus amounted to an unfair labour practice in terms of s 186 (2) (a) of the LRA.
JR 1356/18
Oracle Corporation South Africa (Pty) Ltd v Malgas and Others (JR 1356/18) [2020] ZALCJHB 136 (17 August 2020)
[45] The fact that the negotiations between the South African team and Multichoice in South Africa collapsed when Naspers opted for a global contract with Myriad ought to have been the end of the matter, as Malagas efforts did not bear any fruit. Thus, in the absence of evidence to point to the influence of Malagas or the applicants efforts being utilised to seal the deal, which evidence was not placed before the Commissioner, it follows that her conclusions that Malagas played a role in the deal are indeed not supported by any evidence, and are at best speculative. Thus, reliance by the Commissioner on unsupported evidence, speculation, and/or evidence insufficiently reasonable to justify a conclusion rendered her award reviewable[9].
[46] Once it was concluded that Malagas played no role in the ultimate deal, that ought to have been the end of the matter. The Commissioner nonetheless proceeded to find that commission was payable albeit subject to the discretion of the applicant, and that the applicant did not exercise its discretion fairly. This finding is equally without a basis in the absence of conclusions that Malagas played a role or the in the absence of the teaming agreement. The applicant cannot be accused of having applied its discretion unfairly, or acted arbitrarily, capriciously or inconsistently in not paying commission, in circumstances where the basis for such payment was not demonstrated.
[52] I therefore agree with the submissions made on behalf of the applicant that a finding of unfair labour practice on the part of the applicant cannot be one that a reasonable commissioner could have come to in the light of the material that was served before her.
JR 2236/17
Laubscher v General Public Service Sectoral Bargaining Council (GPSSBC) and Others (JR 2236/17) [2020] ZALCJHB 103; [2020] 10 BLLR 1053 (LC) (15 June 2020)
[40] The dispute referred by the Applicant was not disciplinary sanction short of dismissal but rather disciplinary action short of dismissal. This disciplinary action short of a dismissal constitutes an unfair labour practice and may be only brought by an employee against an employer as it arises out of an employment or a "live relationship". The elements will be unfairness, arising from a disciplinary action, which action must have commenced; and such a disciplinary action must have the end results of falling short of a dismissal; example of it being withdrawn. Every employee enjoys a constitutional right to fair labour practice and our courts need to define and/or expand on these rights as provided for in the LRA.
JA95/19
Skinner and Others v Nampak Products Limited and Others (JA95/19) [2020] ZALAC 43 (24 November 2020)
[16] In excess of 70% of the relevant employees accepted the offer at a cost of R236 million to Nampak. An offer in respect of the PRMA liability was also made to the retired employees, pensioners, who remained members of the scheme. About 75% of the pensioners accepted the offer at a cost of about R500 million to Nampak. The appellants did not accept the offer. They instead opted for the default option and sought to challenge the decision to cap the PRMA benefit.
[21] The appellants argued that a term purporting to afford Nampak a sole discretion to determine its own performance is void. They relied in this regard on NBS Boland Bank Ltd v One Berg River Drive CC and Others[3] to submit that no promise can be valid if it lies wholly within the choice of the promissor. A careful reading of the judgment discloses that it is not authority for the proposition advanced by the appellants...It is thus doubtful that courts should continue to follow the principle. The SCA considered it unnecessary to decide the point because the rule does not apply to a contractual power to fix a prestation other than a price or rental. It held there was no reason to extend the common law rule to other types of contractual discretions.
[23] Hence, generally, a stipulation conferring upon a contractual party the right to determine a prestation is unobjectionable. There is accordingly no basis to hold clause 4.1 of the policy invalid and the Labour Court did not err in making that finding. This does not mean, as the Labour Court correctly understood, that an exercise of such a contractual discretion is necessarily unassailable. In terms of our common law, unless a contractual discretionary power was clearly intended to be completely unfettered, an exercise of a contractual discretion to alter a prestation must be made arbitrio bono viri (reasonably).[Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700 (A) 707 A-B; Moe Bros v White 1925 AD 71,77; Holmes v Goodall and Williams Ltd 1936 CPD 35,40; Belville-Inry (Edms) Bpk v Continental China (Pty) Ltd 1976 (3) SA 583 (C) 591 G-H; and Remini v Basson 1993 (3) SA 204 (N) 210 I-J] The essential question in this case, therefore, is whether Nampak exercised its discretion under clause 4.1 of the policy reasonably.
[25]...Clause 4.1 of the policy reflects a clear intention to permit adjustment (on legitimate or reasonable grounds) of the PRMA benefit of employees still in employment prior to their retirement.
[26] The requirement that a contractual discretion should be exercised reasonably, arbitrio bono viri, means that the relevant party must not act in bad faith, arbitrarily or capriciously and should endeavour proportionally to balance the adverse and beneficial effects of the proposed decision or action. A court reviewing the justifiability of such an exercise of discretion should permit the holder of discretion a margin of appreciation in balancing the relevant interests and considerations and avoid substituting the discretion with its own merely because it might have exercised it differently.
[40]...The contractual entitlement of the appellants is restricted by clause 4.1 of the policy which permitted Nampak at its discretion to alter the entitlement prior to its vesting on retirement. The claim of the appellants, in the light of clause 4.1 of the policy, is essentially a claim for an entitlement they did not have as future pensioners. Accepting that they have no entitlement under clauses 3.3.3 and 3.3.5 of the policy, their dispute amounts to a claim for new rights and is thus akin to a dispute of interest, in the final analysis a matter for collective bargaining. [41] There can only be a breach of contract or unfair labour practice if Nampak is shown to have exercised its discretion in terms of clause 4.1 of the policy unreasonably or unfairly.
[42] The issue of affordability is not decisive. When assessing whether the employer has acted reasonably or fairly in exercising its discretion to alter its prestation, its operational requirements are undoubtedly a relevant consideration. An intention to increase profitability is an entirely legitimate commercial rationale. The unfair labour practice jurisdiction is not meant to restrict the proper pursuit of profit by the employer. The point was made by Zondo JP (as he then was) in Frys Metals (Pty) Ltd v National Union Metal Workers of SA & others[(2003) 2 ILJ 140 (LAC) at para 33] when he said in relation to the commercial rationale for operational requirements dismissals:[A]ll the Act refers to, and recognises, in this regard is an employers right to dismiss for a reason based on operational requirements without making any distinction between operational requirements in the context of a business the survival of which is under threat and a business which is making profit and wants to make more profit.[See also General Food Industries v Food and Allied Workers Union (2004) ILJ 1260 (LAC) para 52...[43] These are matters falling within executive and managerial prerogative.]...[44] There is no evidence of any illegitimate or ulterior motive or caprice. The process was transparent and sought fairly to balance proportionally the competing interests at stake.
JR 316/18
City of Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (JR 316/18) [2020] ZALCJHB 221 (15 May 2020)
[11] The head and tail of this dispute lies in the letter of 12 November 2010. It is apparent that Matee mistook this letter to be a contractual basis to pay Machete an increased salary. It is not. With reference to the Labour Appeal Court (LAC) judgment of Apollo Tyres SA v CCMA and others[[2013] 34 ILJ 1120 (LAC)], he mistook the claim of Machete to be one relating to benefits. A claim for a higher salary is not a claim relating to provision of benefits.
[12] Clearly, even if Apollo, supra may be applied, which in the Courts view is not applicable, the letter does not give rise to a contractual right nor a legitimate expectation.
JR803/18
MTN (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR803/18) [2019] ZALCJHB 152 (14 June 2019)
The second respondent found that the transfer of the third respondent amounted to a demotion despite the fact that he retained his title and his conditions of employment. The reason for this finding is that the transfer constituted a diminution in status, importance, prestige and responsibility of the applicant as the store in Rosebank was a lot smaller than the store in Morningside. (Although the second respondent did not refer to it, the reduction in the third respondents remuneration.) He also found that the transfer was not preceded by consultation.
JR369/1
Ekurhuleni Metropolitan Municipality and Another v SALGBC and Others (JR369/15) [2019] ZALCJHB 91 (10 May 2019
[8] In these circumstances, Mr Pieterse submitted, the municipalitys failure to short-list him was grossly unfair. More significantly, the municipalitys decision to appoint the successful candidate further contravened its own policy in that it failed to adhere to the minimum requirements for the post.
2. The award granting Mr Pieterse protected promotion is reviewed and set aside, and substituted by an award that the applicant must re-do the appointment process from the shortlisting stage.
JR1148/2014
Maile v FOSKOR (Pty) Ltd (JR1148/2014) [2019] ZALCJHB 71 (2 April 2019)
[18] In this case, once it was accepted that the scarcity skills allowance was a benefit payable at the discretion of the employer, and that all the trainers except for Maile were paid such an allowance, the next enquiry was whether Foskor acted fairly[4] in exercising that discretion in depriving Maile of the allowance[5].
[41]...categorised as an unfair labour practice dispute in terms of section 186(2)(a) of the Labour Relations Act[1] (the LRA), being one allegedly involving unfair conduct relating to the provision of benefits to an employee in that should the job be upgraded, the employees will receive better benefits, being an advantage or privilege to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employers discretion.[Thiso v Moodley NO [2015] 5 BLLR 543 (LC); and Apollo Tyres South Africa (Pty) Ltd v CCMA [2013] 5 BLLR (LAC) at para 50]
JR 2160/15
Skhosana v Commission for Conciliation, Mediation and Arbitration and Others (JR 2160/15) [2019] ZALCJHB 39 (5 March 2019)
JR 917/16
Fidelity Security Service (Pty) Ltd v Socrawu obo Knoxwell Nengwekhulu and Others (JR 917/16) [2019] ZALCJHB 32 (25 February 2019)
Unfair labour practice. Reinstatement of suspended employee not competent relief where it turned out during arbitration that the employee was dismissed prior to commencement of arbitration proceedings. The award reviewed and set aside in so far as the relief of reinstatement awarded by the arbitrator.
CA4/2018
National Union of Mineworkers obo Coetzee and Others v Eskom Holdings SOC Ltc and Others (CA4/2018) [2019] ZALAC 62; [2020] 2 BLLR 125 (LAC); (2020) 41 ILJ 391 (LAC) (4 October 2019)
A dispute about an unfair incorrect grading is thus an unfair labour practice dispute relating to the provision of benefits over which the CCMA will normally have jurisdiction.
J2769/2016
IMATU obo Members v City of Tshwane Metropolitan Municipality (J2769/2016) [2018] ZALCJHB 254 (3 May 2018)
reinstatement of special leave during festive season.
The ruling is quite simply that the City must reinstate the applicants members special leave days during the festive period. That ruling stands and the City has not taken it on review
JR1493/16
Xoli v Commission for Conciliation, Mediation and Arbitration and Others (JR1493/16) [2018] ZALCJHB 156 (19 April 2018)
remunerated at a lower level
I do not see why such a complaint cannot be construed as a complaint about a demotion, whatever other implications it might have. Accordingly, I am satisfied that the arbitrator did indeed have jurisdiction to deal with the dispute
CA07/2017
Public Servants Association obo Thorne v Department of Community Safety (Western Cape) and Others (CA07/2017) [2018] ZALAC 24; [2018] 12 BLLR 1173 (LAC) (8 June 2018)
Ncane v Lyster NO and Others(2017) 38 ILJ 907 (LAC) at para 25.
[16] When evaluating the suitability of a candidate for promotion an employer must act fairly. A promotion decision is however not a mechanical process and there is a justifiable element of subjectivity or discretion involved. Thus an arbitrator typically will interfere only where the decision is starkly unreasonable, improperly motivated or mala fide.[3] The employee bears the onus to prove the alleged unfairness.
JR634/1
Public Service Association of South Africa obo Members v MEC for Agricultural and Rural Development ( North West Province) (JR634/13) [2017] ZALCJHB 480 (12 October 2017)
unfair labour practice jurisdiction: performance management and development system and consequent payment of bonuses: constitutes a benefit under the unfair labour practice jurisdiction: dispute should be dealt with by bargaining council under normal dispute resolution processes under Chapter VIII of the LRA: review under Section 158(1)(h) not appropriate
[31] There is no doubt that as a general proposition, the Labour Court has the jurisdiction, in terms of Section 158(1)(h) of the LRA, to consider the applicants application to review and set aside the decision of the department relating to the payment of performance bonuses to employees, on the basis of the test as summarized above.
Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296 (CC) at para 74
Merafong City Local Municipality v SA Municipal Workers Union and Another (2016) 37 ILJ 1857 (LAC) at para 36.
Section 158(1)(h) of the LRA refers to a jurisdictional power of the Labour Court. It specifically provides that the Labour Court 'may review any decision taken or any act performed by the State'. The only way the Labour Court is able to review is by hearing and determining an application for review of the acts and/or decisions contemplated in s 158(1)(h). That section should be read as not only conferring a power, but also jurisdiction upon the Labour Court.
32]But it is not as easy as that. The fact that the Labour Court has jurisdiction / power does not mean that the Court should exercise this power. In other words, and even thought the Court may have jurisdiction to consider such a review under Section 158(1)(h), it does not mean that it is appropriate for it to exercise such power, especially where there are other specifically prescribed means by way of which the issue can be resolved.
Hendricks v Overstrand Municipality and Another (2015) 36 ILJ 163 (LAC) at paras 10 12.
These dicta of the Constitutional Court support the general proposition that public sector employees aggrieved by dismissal or unfair labour practices (unfair conduct relating to promotion, demotion, training, the provision of benefits and disciplinary action short of dismissal) should ordinarily pursue the remedies available in ss 191 and 193 of the LRA, as mandated and circumscribed by s 23 of the Constitution.
Public Servants Association of SA on behalf of de Bruyn v Minister of Safety and Security and Another (2012) 33 ILJ 1822 (LAC) at para 32. See also the conclusion reached by the Court at para 34 of the judgment.
Therefore, the court a quo (although of the opinion that the application before it was in terms of s 158(1)(g) of the LRA) correctly proceeded to consider whether the LRA required the kind of dispute which existed between the appellant and the respondent to be resolved through arbitration. The court concluded that leave, including incapacity leave and temporary incapacity leave at the respondent's organization, is governed by the provisions of Resolution 5 of 2001 of the PSCBC, which is a binding collective bargaining agreement. This means that the dispute between the parties was required to be submitted to arbitration as it concerned the application and/or interpretation of the provisions of the PSCBC resolution
[43] It is useful to refer to some examples where such exceptional circumstances were found to exist. One of these is in fact the judgment in Minister of Labour[36] itself which dealt with the revocation of an employees designation of Registrar of Labour Relations in terms of the LRA,[37] and his resultant removal from that position, for reasons that were entirely irrational and invalid and where there in reality was no alternative remedy. A further example is Hlabangwane v MEC for Public Works, Roads and Transport, Mpumalanga Provincial Government and Others[38] which concerned a case where the right to discipline the employee had been specifically removed by statute (the Public Service Act) as a result of a transfer of the employee. A final example is by now the well known matter of Solidarity and Others v SA Broadcasting Corporation[39] which concerned the dismissal and victimization of reporters for being critical of policy decisions by the SABC as public broadcaster, which conduct violated the Constitutional duties of the employees, and even infringed on the right of the public to be properly informed.
47] How do the applicants then seek to avoid their dispute being considered to be one of an unfair labour practice? The answer is simple. It is all about labelling. The applicants initiated this dispute before this Court under Section 158|(1)(h) of the LRA, by way of, in my view, an act of deliberate labelling. The applicants in essence labelled the dispute as an infringement of their Constitutional right to legality, as evidenced by a number of causes of complaint specifically dealt with hereunder, and they specifically steer away from relying on unfairness. But, and as I have dealt with above, the Court should not be bamboozled by this kind of labelling.
[61]In summary therefore: The dispute of the applicants is quintessentially an unfair labour practice dispute, and as a matter of principle it should not be decided on the basis of a legality review in this Court
JR951/16
Tshifhango and Another v Minister of Justice and Correctional Services and Others (JR951/16) [2017] ZALCJHB 97; (2017) 38 ILJ 2131 (LC) (23 March 2017)
30]In casuthe condition is the existence of an incorrect salary, salary level, salary scale being awarded to an employee. If the condition exists, the consequence is that the relevant executing authority shall be obliged to correct it. The executing authority exercises no discretion as the said consequence that flows from the existence of the condition arises by operation of law and not by the exercise of any discretion.
J1038/16
Mangcu v City of Johannesburg (J1038/16) [2017] ZALCJHB 351; [2017] 10 BLLR 1055 (LC) (22 February 2017)
Ndlela vSAStevedores Ltd(1992) 13 ILJ 663 (IC).
demotion is not a word which has some special meaning in labour law. It bears its ordinary meaning, namely to 'reduce to a lower rank or category'[5]. The converse of demotion is promotion. Demotion in the ordinary sense means a reduction or diminution of importance, responsibility, status and salary.
JR2245/16
Solidarity obo Kriek v Sasol Synfuels (Pty) Ltd and Others (JR2245/16) [2016] ZALCJHB 190 (13 May 2016)
[5] It must also be mentioned that the arbitrators reliance on the principle that an employee may only raise an unfair labour practice dispute on the basis that they are claiming a right ex contractu or ex lege was misplaced in light of the LAC decision in Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others(2013) 34 ILJ 1120 (LAC) , which confirmed the principle recognized in Gauteng Provinsiale Administrasie v Scheepers & others [2000] 7 BLLR 756 (LAC) that this was not a pre-requisite for establishing an unfair labour practice claim, albeit that those cases dealt with benefits :
The court [in Scheepers] clearly recognized that the unfair labour practice dispensation does create rights. This is a significant shift from the notion espoused in HOSPERSA that the right to a benefit must be derived from statute, contract or a collective agreement.
PA24/14
Mawethu Civils (Pty) Ltd and Another v National Union of Mineworkers and Others (PA24/14) [2016] ZALAC 13; [2016] 7 BLLR 661 (LAC); (2016) 37 ILJ 1851 (LAC) (20 April 2016)
The practice of giving employees a full days paid leave in exchange for overtime for a lesser period in the preceding week undoubtedly falls within the concept of a benefit.
The dispute about payment for the leave day is indeed a dispute of right.
MITUSA v Transnet Ltd (2002) 23 ILJ 2213 (LAC)
held that a dispute of right is not excluded from the ambit of an unfair labour practice.
Finding an accommodation and proving it to be reasonable is an onus resting on the employer. So is the onus of proving that a reasonable accommodation is unjustifiable. For her part, an employee with disabilities must prove that an accommodation that she proposes is reasonable on the face of it. She must also accept a reasonable accommodation and facilitate its implementation, even if it is a less than perfect or preferred solution.
Stocks Civil Engineering (Pty) Ltd v Rip NO & another [2002] 3 BLLR 189 (LAC)
JR2498/13
Pretorius v G4S Secure Solutions (SA) (Pty) Ltd and Others (JR2498/13) [2015] ZALCJHB 414 (24 November 2015)
Apollo Tyres
transfer may in itself constitute a demotion
JR2016/14
Sibanye Gold Limited v Solidarity obo Bezuidenhout and Others (JR2016/14) [2017] ZALCJHB 382 (12 October 2017)
unfair labour practice in relation to demotion and ordered the applicant to reinstate
The Policy was central to the first respondents case at arbitration and was documentary evidence before the Commissioner. The interpretation of the Policy was something the Commissioner was enjoined to apply his mind to. It was not reasonable for a decision-maker to accept Wagners understanding of one clause without applying his mind to the legal submissions before him, and the clause itself read in context.
JR509/2014
Special Investigating Unit v Commission for Conciliation, Mediation and Arbitration and Others (JR509/2014) [2017] ZALCJHB 127 (21 April 2017)
[14]John Grogan: Employment Rights 1st ed (Juta & Co, Cape Town 2013) at 135-6.
To fall within the terms of section 186 (2) (b), disciplinary action against an employee short of a dismissal must be disciplinary both in nature and in intent. Action is disciplinary if it is aimed at correcting errant behaviour for which the employee is responsible. So, for example, a counselling session or a warning for incapacity does not fall within the scope of the definition. The definition is also concerned with disciplinaryaction. The decision to hold a disciplinary enquiry does not fall within the definition of an unfair labour practice- the action must have been instituted before an employee can refer a dispute relating to disciplinary action short of dismissal. The word action also suggests that employees may not refer a dispute over the content of an employers disciplinary policy. A dispute may be entertained only if the employer actually takes action. Only the Labour Court or, perhaps, the High Court, has the power to interdict a disciplinary hearing.
according to the Commissioner, had failed to comply with its own disciplinary code and procedure and therefore its actions were tantamount to an unfair labour practice by an employer on an employee. ... the Commissioner equally had no jurisdiction over the matter as there was no dispute between the parties.
A benefit for the purposes of s 186(2)(a) was not limited to an entitlement that arose out of a contract or by operation of law.
Performance bonus not part of remuneration and dispute clearly an unfair labour practice dispute
Nature of dispute before court to be decided by court and not bound by a partys description of it
Not having a legitimate expectation. Failed to establish that any representation was made to him in clear, unambiguous terms devoid of any qualification. Failed to establish that the representation on which he relied was either competent or lawful for the decision maker to make
selection and appointment of an employee as akin to administrative decision-making, needed to be re-evaluated in the light of the constitutional recognition of the distinct labour rights to fair labour practices in s 23 of the Constitution and just administrative action in s 33.
only if so agreed
186(2)(b)
Other case law cited
Sidumo judgment, the scope for reviewing commissioners awards had been highly limited. In essence, the function of the court would be to affirm commissioners decisions unless the evaluation of fairness by the commissioner was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the established principles of law.
Munisipal authority
187(1)(d); was sufficiently persuasive not to prevent the applicant from pursuing her claim in those terms
other case law cited
Chirwa v Transnet Ltd [2008] 2 BLLR 97 (CC).
the audi alteram partem rule applied was no longer authoritative since
precautionary suspension cases the audi rule did apply.
all suspensions should be procedurally fair however required some qualification: fairness was a flexible concept that depended in each case
an opportunity to make written representations would ordinarily suffice.
JA58/10
MEC for Education, North West v Gradwell
Other occasions granted
not demand for future payment
Not automatic right
Ee show arbitrariness or other unfairness
Reasons for and supporting information regarding suspension to be provided opportunity to respond
Unfair suspension; right to be heard before suspension confirmed
breach of the disciplinary code
disciplinary committee and the appeal committee were bound by the same limitations on the issue of the suspension without pay.
statutory regime regulating promotion
Upgrading of position and payment of acting allowance; re-evaluation of job; grading of post
Commissioner should have joined successful candidate of own accord
Not ito Equity Plan
Exhaust provisions Chapter V EEA first
No employment equity plan
Award difference remuneration had he been employed
Compensation
criteria set out in the decision of the LAC in Ferodo (Pty) Ltd v De Ruiter (1993) 14 ILJ 1974, i.e. there must be evidence of actual financial loss; proof that the loss was caused by the unfair labour practice; the loss must be foreseeable; the award must endeavor to place the applicant in monetary terms in the position he would have been in, had the unfair labour practice not been committed; and the award must be fair and reasonable in the circumstances. The applicant must also take steps to limit his loss, e.g. take reasonable steps to find alternative employment.
there were limited grounds on which an arbitrator, or a Court, could interfere with an employers discretionary powers, such as that of promotion.
when Ms Burger complained to her superior, a Ms van Zyl, about being placed close to black employees in the office. This was overheard by a fellow employee; at the disciplinary hearing she was found guilty and dismissed. She appealed and the sanction of dismissal was set aside on the basis that she had been issued a verbal warning, which had been confirmed in writing, as well as having apologised and had her apologies accepted by the aggrieved employees; held that the companys failure to protect him amounted to direct discrimination; Held that Old Mutual had discriminated against Mr Finca by failing to take the necessary steps to protect him against racism in the workplace and therefore were liable to pay him compensation.
demotion was when something to which the employee was entitled was withdrawn and that this could include status as well as a condition of employment
that a dispute about the composition and amount of severance pay was a dispute of interest. Held further that the rate and formula were agreed,
Employer reducing status of employee but leaving salary unchanged
the transfer from regional manager to branch manager constituted a demotion (at [15] - [19] and [24], referring to Taylor v Edgars Retail Trading (1992) 13 ILJ 1239 (IC) and Matheyse v Acting Provincial Commissioner, Correctional Services & others (2001) 22 ILJ 1653 (LC
Legitimate expectation of provision of benefit
Noted that the LAC decision in HOSPERSA was binding but expressed the view that where an employee has a legitimate expectation to the provision of a benefit, although not a legal or contractual right, the failure to provide that benefit might amount to an unfair labour practice. Held that the benefit concerned must be an ascertainable advantage or privilege which has been created by the employer concerned; or one which the employer has declared it will consider conferring upon employees. Held that, for example, where an employee aspires to a promotion, he or she may have a legitimate expectation that if he or she meets the requirements of the post and beats the competitors, he or she will be promoted (at [20] - [23], referring inter alia to Administrator, Transvaal v Traub & Others 1989 (4) SA 731 (A) and Public Servants Association on behalf of Geustyn v Provincial Administration: Western Cape (2000) 21 ILJ 700 (CCMA)
The LAC in the HOSPERSA case, considered that a benefit, contemplated by a residual unfair labour practice was situated on the pole occupied by an antecedent right to a benefit. This right arises ex contractu, ex lege or through a collective agreement
Dispute of interest
