LC finding

CSC Carlton Johnson
The question is whether union members may
strike at workplace that does not fall within the
scope of the union constitution.
Bidvest made an urgent application interdicting or
restraining NUMSA from engaging or participating
in strike action.
Summary: Bidvest operates in the food industry
and NUMSA approached it in July 2014 seeking
organizational rights. Bidvest refused on the basis
that NUMSA, in terms of their constitution may not
organize in the particular sector.
NUMSA referred a dispute to the CCMA in terms
of section 22(1) of the LRA.
CCMA finding: The commissioner ruled that the
CCMA did have jurisdiction to conciliate the
dispute. He also referred to NUM obo Mabote v
CCMA that a registered trade union may
represent its members at the CCMA irrespective
of the scope of the union.
LC finding: The jurisdictional ruling of the CCMA
stands. In terms of the ruling the CCMA had
jurisdiction and NUMSA had locus standi to refer
organizational rights dispute to the CCMA.
LC reasons/basis: The commissioners ruling in
this case is not unlawful. Neither is his issuing of
the certificate stating that the dispute remains
Neither is the consequent action of the union to
embark on strike action in terms of section 64 of
The application to declare the strike unprotected
is dismissed.
In terms of the settlement agreement the parties
agreed to meet on 30 November 2011 to discuss
and finalize employment contracts in accordance
with Section 197. The respondent contemplated
the transfer of all employees.
The applicant contended the respondent was
obliged to engage it in consultation in terms of
section 197(6)(a) and (b) of the LRA
During the same meeting parties would consult
on matters in relation to new contracts, old
contracts and service level agreement.
LC FINDING: The LC noted that the settlement
agreement concluded under the auspices of the
CCMA clearly amounted to an agreement creating
rights for the applicant greater than that provided
for under section 197 of LRA.
Such interpretation is not only consistent with the
agreement concluded, but also with the
communication by the respondent to its
LC FINDING: The agreement concluded was
aimed at the very least to ensure transferring
employees would be transferred on terms and
conditions of employment not less favorable.
Although the respondent did not comply with the
agreement there is no evidence that the
employees were transferred on less favorable
Accordingly no purpose will be served in making
the agreement an order of court. The application
was dismissed and each party to pay its own
The applicant was employed on a fixed term in the
Office of the Presidency.
His employment was terminated on 31 January
2009, however he was paid until the end of his
contract (31 July 2009).
The arbitrator found that the dismissal of the
applicant was for a fair reason namely:
incompatibility, but that it was procedurally unfair.
The employee was awarded three month’s
remuneration for procedural unfairness.
The applicant instituted review proceedings to
have the finding on substantive unfairness
reviewed and set aside.
The arbitrators finding that the dismissal was
procedurally unfair was uncontested.
LC FINDING: Employer failed to prove that the
relationship with the Deputy President was in
deed incompatible.
There was no intolerable conduct on the part of the
uncomfortability or personality differences.
Incompatibility is a form of incapacity and it relates to
the relationship of an employee and other workers
within the employment environment, regarding the
employee‘s inability or failure to maintain cordial and
harmonious relationships.
The arbitrators finding that dismissal was fair set
aside and he was awarded three months
compensation for the substantive fairness.
The employee applied for a post of internal
investigator, for which one of the requirements
was a valid driver’s licence.
A few months later, the employer discovered that
applicant only possessed a learner’s licence. She
was charged with dishonesty, and dismissed.
CCMA Finding: The employee claimed that the
omission of the word “learners” was a
typographical error, and that she had since
obtained her divers licence.
The commissioner accepted that the employee
was unaware of the error. The arbitrator also
found that the employer acted inconsistently as it
had not dismissed employees who had
fraudulently obtained driver’s licences.
The employee was reinstated, subject to a final
written warning. On review the Labour Court
declined to interfere with the award.
LAC Finding: The commissioner appeared to
have accepted the employees unproven
statement that she had made a misrepresentation
without determining the probability of that claim.
Had the commissioner done so, he would have
found that the employee’s claim was untruthful
because the employee knew that a valid driver’s
licence was a prerequisite for the post.
Commissioner ignored unchallenged evidence that
the employee would not have been employed had
the selection panel not been given the impression
that she had a valid licence.
The court also found no inconsistency. The other
employee who was suspected of having a forged
driver’s licence, was charged and found not guilty
in a disciplinary enquiry. Hence, the question
of inconsistency does not arise.
The employee applied for a post advertised. After
appointment the Department learned that the
employee had resigned from her previous job.
The employee had signed a settlement
agreement in terms of which the employer
withdraw all the charges on condition she resign.
Despite having been asked in the interview
whether she had any “skeleton in her closet”
she did not disclose the circumstances of the
termination of her employment.
The employer convened a pre-dismissal
arbitration under the auspices of the BC.
The commissioner found that the employee was
not obliged to disclose the fact that she had been
suspended and that the employer could not rely
on non-disclosure of charges not proven.
LC FINDING: The commissioner had erred
grossly by relying on the presumption of “innocent
until proven guilty”.
The issue was the non-disclosure of information,
not whether the employee was guilty.
The arbitrator also overlooked that, at the time of
the interview, the charges had not been
The Court held further that the employee had
applied for a senior post, which required the
unimpeachable integrity and honesty.
The relevance of the fact that she was facing
disciplinary charges at the time of the interview
was for the new employer to determine.
Employee claimed he was summarily dismissed
because he had failed to cut the grass at his
employers home. Employer contended that after
he expressed his displeasure that the work was
not completed, the employee simply walked off
the job.
The matter was referred to the CCMA, and the
commissioner accepted the employee’s version,
and awarded the employee compensation.
LC FINDING: The court held that the employer’s
complaint was the commissioner had erred by
allowing the employee to be legally represented
and then by failing to assist its lay representative.
Also denied the representative to call two
The court rejected the employer’s claim that the
arbitrator has committed an irregularity by
permitting legal representation. The employer
could not prove that the commissioner had
exercised his discretion improperly.
However once the employee had been granted the
right to appoint a legal representative, the
employer automatically acquired that right.
The commissioner was obliged to inform the
employer’s representative that the employer was
entitled to legal representation.
Failure to inform the employer of its right to legal
representation rendered the hearing unfair.
This was aggravated by the commissioner’s failure
to inform the employer’s representative that he
could apply for a postponement.
The court held further that the commissioner’s
refusal to allow the employer to call witnesses
was another fatal irregularity.
The right to call witnesses is firmly entrenched in
our law, and the denial of that right constituted a
gross irregularity. That, too, had deprived the
employer of a fair hearing.
The award was set aside and remitted to the
CCMA to be heard by another commissioner.
The employee was employed as chief operations
engineer, subject to a six month probationary
period which in turn provided that if the employee
did not perform to the respondent’s satisfaction,
the appointment could be “reviewed”.
After three performance evaluations, it was
established that the employee had failed to reach
his monthly targets. The employee was set a fresh
target, which he failed to meet. He was dismissed.
substantively and procedurally unfair.
The LC found the dismissal only substantively
unfair, and halved the compensation awarded.
LAC FINDING: The court noted while the
employee had set targets for himself, these had
been overtaken by fresh targets set by the
The employee’s performance had been hampered
by poor administration and lack of support.
The court noted that before dismissing
probationary employees, employers are required to
offer guidance and consult the employee.
The court held further that although senior
employees are expected to assess for themselves
whether they are performing according to the
required standard, this does not absolve the
employer of the duty to provide the resources
required for meeting that standard.
That probationary employees may be dismissed
for less compelling reasons than “tenured”
employees does not mean that the employer need
not prove that the dismissal was for a fair reason.
The LAC upheld the LC decision.
After suffering a heart attack, the employee was
diagnosed with post-traumatic stress disorder.
After being hospitalized he applied for early
Sometime later he was informed that, no medical
certificates had submitted and he was required to
report for duty or face dismissal.
Months later, the employee was informed that his
application for medical boarding had not been
processed because the application for had not
been signed by two witnesses.
The employee was then informed that he would
be granted unpaid leave, and that the amounts
paid to him whilst on sick leave, over R700 000,
would be recovered from his pay.
The employee filed a grievance but the
respondent continued to deduct an amount of
R12 000 per month for two successive months.
The employee resigned, claiming a constructive
BC FINDING: The bargaining council arbitrator
agreed and ordered the employer to reinstate
the employee.
LC FINDING: The Labour Court dismissed the
review application and ruled, that although it
might seem unusual in a constructive dismissal
matter, reinstatement was the appropriate
The Court held that the onus rested on the
employee to prove that the employment
relationship was indeed intolerable. The factors
listed by the employee in support of his claim
were largely unchallenged.
The facts indicated that the employer’s senior
employees had rendered the relationship
The only reason why the employee had resigned
was that the employer had frustrated his attempts
to process his early retirement application.
This was aggravated by the employer’s insistence
that the employee repay a huge amount.
To top it all off the employer ignored the
employees' fragile and vulnerable mental state.
If an employee claiming constructive dismissal
can prove that the circumstances that gave rise to
his resignation have changed for the better,
reinstatement remains a viable remedy.
Thank You
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