Labour Court Main Division

Practice — Application for condonation — Court satisfied the requirements of condonation has been met — The appeal is therefore reinstated.

Practice — Labour Court — Stay of execution of arbitration award pending appeal – Section 89 (6), (7) and (8) of Labour Act — The balance of hardship favours the respondent.

Labour law – Section 64(3)(a) of the Labour Act 11 of 2007 – Recognition of a trade union as the exclusive bargaining agent of employees in the bargaining union – Recognition refused by employer on the basis that the employer’s industry falls outside the scope of the constitution of the union – Union bound to the scope set out in its constitution – Recruiting ineligible members is ultra vires the constitution and unlawful – Appeal against the arbitrator’s award and finding that the operation of the employer is covered by the scope of the union, upheld.

Interlocutory – Application for condonation and reinstatement of the lapsed labour Appeal – Application based on the facts and evidence as contained in the affidavit – Replying affidavit not to contain new facts as that will cause prejudice to the first respondent – Considerations and principles on application for condonation and reinstatement of a lapsed appeal reinstated.

Labour law – Arbitration award –  Respondent dismissed after a disciplinary hearing – Arbitrator finding that the dismissal was substantively unfair and ordered compensation and reinstatement – On appeal, court confirming that dismissal was substantively unfair and confirming compensation, but setting aside the award of reinstatement.

Labour law – Arbitration award –  Respondent dismissed after a disciplinary hearing – Arbitrator finding that the dismissal was substantively unfair and ordered compensation and reinstatement – On appeal, court confirming that dismissal was substantively unfair and confirming compensation, but setting aside the award of reinstatement.

Practice — Application for condonation — Court satisfied the requirements of condonation has been met — The appeal is therefore reinstated.

Practice — Labour Court — Stay of execution of arbitration award pending appeal – Section 89 (6), (7) and (8) of Labour Act — The balance of hardship favours the respondent.

Application to strike out – Third respondent (UNAM) applying to have averments struck out in founding affidavit in terms of Rule 58 - Grounds – Averments found to be scandalous, vexatius, or irrelevant and prejudicial –   Application to strike out granted accordingly.

Labour Law – Appeal – Interference with arbitrator’s finding – Where no evidence presented – Specified Damages – Sufficient evidence must be led – Onus on the appellants – Fatal omission – Failure to discharge onus – Appeal dismissed.

Labour law – Review – Labour Act 11 of 2007 – Section 89 – There must be a defect in the proceedings for it to be reviewable – Defect entails that the arbitrator must have committed misconduct, acted grossly, irregular or exceeded his power, or the award must have been improperly obtained – The applicant has failed to evince that any of the aforementioned defects are present in the case – The application is dismissed.

Practice – Recusal of presiding officer – Principles for recusal restated – No case has been made out for the recusal of the presiding officer

Labour law – Labour appeal – Against arbitration award – Retrenchment – Non-compliance with the procedure set out in s 34 of the Act amounts to procedural unfairness.

Review – Arbitrator’s refusal to recuse himself – The correct approach to the application for the recusal is objective and the onus of establishing it rests upon the applicant - The question is whether a reasonable, objective and informed person would on the correct facts, reasonably apprehend that the arbitrator has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and submissions of counsel.

Labour Law - Unfair dismissal – Jurisdiction of arbitrator in terms of the Labour Act 11 of 2007 (‘the Act’) – Prescription of period during which a referral can be made in terms of the Act – Whether arbitrator can issue a declaratory order and if so, circumstances in which that can be done.

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.