SASLAW SEMINAR
28 JANUARY 2015
Case Law Update – 2014
Adv Riaz Itzkin – Johannesburg Bar
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Collective bargaining
Discrimination
Unlawfully concluded employment contracts
Team misconduct / collective misconduct
Business transfers
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Chamber Of Mines Of South Africa obo
Harmony Gold Mining Company Ltd and
Others v Association Of Mineworkers Of SA
and Others; In Re: Association Of
Mineworkers And Construction Union and
Others v Chamber Of Mines Of South Africa
obo Harmony Gold Mining Company Ltd and
Others [2014] 9 BLLR 895 (LC)
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Chamber Of Mines Case (cont’d)
◦ Section 23(1)(d) provides that a collective
agreement binds employees who are not members
of the registered trade union or trade unions party
to the agreement if—
 (i) the employees are identified in the agreement;
 (ii) the agreement expressly binds the employees; and
 (iii) that trade union or those trade unions have as
their members the majority of employees employed by
the employer in the workplace.

Chamber Of Mines Case (cont’d)
◦ Section 65(1)(a) provides that:
“No person may take part in a strike or lock-out or in
any conduct in contemplation or furtherance of a strike
or lock-out if –
(a)
that person is bound by a collective agreement
that prohibits a strike or lock-out in respect of
the issue in dispute.”
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Chamber Of Mines Case (cont’d)
◦ Facts:
 Collective agreement between Chamber and NUM,
Solidarity and UASA (which had as their members the
majority of employees in the relevant workplaces)
 Clause 1.2 of the wage agreement provided that in
terms of s 23(1)(d) of the LRA, the agreement was
binding on all other employees
 Clause 17 of the wage agreement: full and final
settlement, and that no party bound would call for any
strike on conditions of employment
 AMCU embarked on a strike, and the Chamber of
Mines successfully obtained a rule nisi

Chamber Of Mines Case (cont’d)
◦ Agreement identified the employees and expressly
stated that they were bound
◦ Dispute regarding “workplace”, but held that
properly interpreted and applied, the union parties
had as members the majority in the workplace
◦ Rule nisi confirmed
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Chamber Of Mines Case (cont’d)
◦ Constitutionality of section 23(1)(d)
 Section 23(2) of the Constitution: Every worker has the
right to strike
 AMCU sought an order declaring that section 23(1)(d)
read with section 65 and the definition of ‘workplace’
in section 213, are in conflict with the Constitution to
the extent that these provisions grant private
employers and trade unions the power to limit their
right to strike.
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Chamber Of Mines Case (cont’d)
◦ Constitutionality of section 23(1)(d)
 Four broad submissions:
 The sections offend the principle of legality.
 The legislation places no duty to act in the public interest
or in the interests of those sought to be bound.
 It is not possible to review the actions of private actors as
it is to review a decision made by a public authority.
 The provisions deny non-parties to the collective
agreement, for the duration of the agreement,
fundamental rights including the right to strike.
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Chamber Of Mines Case (cont’d)
◦ Constitutionality of section 23(1)(d)
 As to the rule of law attack: the section is simply an
instance of national legislation creating legal
consequences that flow from specific facts.
 The right to strike is not absolute and may justifiably
be limited in certain situations. The court held that the
limitation was justified in light of the principles of
majoritarianism and orderly collective bargaining.
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Chamber Of Mines Case (cont’d)
◦ Constitutionality of section 23(1)(d)
 Ultimately, the Labour Court held as follows at para
69:
 “Functional collective bargaining further requires that,
when such a peace obligation is agreed to by unions
representing a majority of affected employees, the
obligation should be capable of being extended to the
minority of employees not belonging to any of the party
unions. It follows from the above that the extension of
collective agreements to all workers is not only compatible
with the principles of freedom of association, it is
recommended. This negates the core of AMCU’s
complaint.”
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South African Airways v GJVV & Others
(Unreported CA9/13 12/6/2014)
◦ Senior pilot employed by SAA was to retire at the
end of the month that he turned 60
◦ SAA and trade union negotiated change to
retirement age
◦ Collective agreement was concluded which provided
for later retirement age but less favourable terms
applicable to pilots over 60
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South African Airways v GJVV & Others
(Unreported CA9/13 12/6/2014) (cont’d)
◦ Employee instituted unfair discrimination claim in
the Labour Court
◦ The Labour Court found that he had been unfairly
discriminated against
◦ SAA appealed to the LAC
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South African Airways v GJVV & Others
(Unreported CA9/13 12/6/2014) (cont’d)
◦ 3 key arguments raised in the LAC – 1st argument:
 The discrimination, even if unfair, could nevertheless
be “justified”
 “[45] Unlike in the case of an equality analysis under
section 9 of the Constitution which also allows for a
further step, namely a justification analysis in terms of
section 36 where one is dealing with the law of general
application, the EEA does not allow for justification of
unfair discrimination. Its language is clearly prohibitive.
Section 6(2) does not contain justifications for unfair
discrimination.”
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South African Airways v GJVV & Others
(Unreported CA9/13 12/6/2014) (cont’d)
◦ 3 key arguments raised in the LAC – 2nd argument
 The age of pilot was an inherent requirement of the
job (and therefore that the defence in s 6(2)(b)
applied).
 LAC rejected this argument: inherent requirement was
ability to pilot a plane
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South African Airways v GJVV & Others
(Unreported CA9/13 12/6/2014) (cont’d)
◦ 3 key arguments raised in the LAC – 3rd argument
 Election to stay on: if elected to benefit from not
having to retire at 60, must be subjected to terms
associated with election
 “[57] The fact that an individual has a choice to either not
be, or to be unfairly discriminated against and had made
the choice which causes the discrimination, can never as a
factor on its own, render the discrimination fair.”
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South African Airways v GJVV & Others
(Unreported CA9/13 12/6/2014) (cont’d)
◦ A provision in a collective agreement cannot be
utilised to establish the fairness of a
discriminatory act:
 “[59] Thus, the fact that a collective agreement was a
product of negotiation between the appellant’s (alleged)
representatives and the second respondent does not in itself
make it fair, either constitutionally or in terms of the EEA, its
discriminatory contents, because if it were to do so, it would
undermine both the EEA and the Constitution in a
fundamental respect.”
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Hudson and Another v South African Airways
Soc Limited [2014] 11 BLLR 1132 (LC)
◦ Senior executives signed fixed-term contracts
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Standing moratorium on appointments
Recruitment and selection policies were not adhered to
No positions were available
No business imperative to appoint
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Hudson and Another v South African Airways
Soc Limited [2014] 11 BLLR 1132 (LC)
◦ SAA Board resolved to annul their contracts of
employment
◦ Employees approached the LC:
 Declaring the termination of their employment
contracts to be unlawful; and
 Directing the Respondent to reinstate the employees
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Hudson and Another v South African Airways
Soc Limited [2014] 11 BLLR 1132 (LC)
◦ The legislative prescripts that were contravened, are
peremptory and applicable to a public entity
◦ The employees were party to appointments that
were unlawful, impermissible and void ab initio
◦ The contracts of the employees were ultra vires and
void ab initio
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True Blue Foods (Pty) Ltd t/a Kentucky Fried
Chicken (KFC) v Commission for Conciliation
Mediation And Arbitration and Others
(D441/11) [2014] ZALCD 70
◦ KFC employed cooks, expeditors and cashiers
◦ Stock losses were experienced
◦ The employees were on shift when stock losses
were experienced
◦ Improved security measures did not assist
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True Blue Foods (Pty) Ltd t/a Kentucky Fried
Chicken (KFC) v Commission for Conciliation
Mediation And Arbitration and Others
(D441/11) [2014] ZALCD 70 (cont’d)
◦ Employees were informed of zero tolerance
approach and told that it was part of their duties to
avoid stock losses and report theft
◦ Employees given chance to come forward with info
◦ Ultimately, a group of employees in various
positions were dismissed (without evidence
regarding each individuals involvement in the theft)
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True Blue Foods (Pty) Ltd t/a Kentucky Fried
Chicken (KFC) v Commission for Conciliation
Mediation And Arbitration and Others
(D441/11) [2014] ZALCD 70 (cont’d)
◦ CCMA held dismissal to be unfair
◦ Labour Court:
 Identification was a central issue
 “What is clear to me is that in the case of “team
misconduct‟ there is no need to prove individual guilt.
It is sufficient that the employee is a member of the
team, a team the members of which have individually
failed to ensure that the team meets its obligations”
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True Blue Foods (Pty) Ltd t/a Kentucky Fried
Chicken (KFC) v Commission for Conciliation
Mediation And Arbitration and Others
(D441/11) [2014] ZALCD 70 (cont’d)
◦ Labour Court:
 “To the extent that arbitrator has made a finding to the
effect that in case of “team misconduct‟ the individual
culpability has to be proved, the arbitrator has failed to
apply his mind or has misconstrued the issue before
him. His finding is therefore unreasonable and falls to
be reviewed and set aside.”
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What must the employer establish (i.e. what is
the threshold for guilt)?
◦ Active association with or support for the
misconduct?
◦ Failure to detect or prevent the misconduct?
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Threshold depends on the prevailing
circumstances
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TMS Group Industrial Services (Pty) Ltd t/a
Vericon v Unitrans Supply Chain Solutions
(Pty) Ltd and Others (JA58/2014) [2014]
ZALAC 39
S197:
◦ “business” includes the whole or a part of any
business, trade, undertaking or service; and
◦ “transfer” means the transfer of a business by one
employer (“the old employer”) to another employer
(“the new employer”) as a going concern.
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TMS v Unitrans (cont’d)
◦ If a transfer of a business takes place, unless
otherwise agreed:
 the new employer is automatically substituted in the
place of the old employer;
 all the rights and obligations continue between the
new employer and the employee;
 anything done before the transfer is considered to
have been done by the new employer; and
 the transfer does not interrupt continuity of
employment.
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TMS v Unitrans (cont’d)
◦ 4 relevant entitites:
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Unitrans Supply Chain Solutions (Pty) Ltd
Unitrans Household Goods Logistics (Pty) Ltd
Nampack Glass (Pty) Ltd
TMS Group Industrial Services (Pty) Ltd
◦ Warehousing agreement between Supply Chain and
Nampack terminates
◦ Nampack concludes warehousing agreement with
TMS
◦ LC: Employees of Household Goods transfer to TMS
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TMS v Unitrans (cont’d)
◦ First agreement: Supply Chain Solutions were
contracted to perform certain services for
Nampack. The staff employed to discharge its
obligations were not employed by it, but were
employed by Household Goods
◦ TMS argued that section 197 of the LRA could not
apply, given that Household Goods alone was the
employer of employees and was not party to the
warehousing agreement (and could therefore not
be the transferor of a business)
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TMS v Unitrans (cont’d)
◦ The LAC considered the evidence and held as
follows at para 39:
“The undisputed evidence clearly indicates that the real
employer in this case, prior to the termination of the
agreement with third respondent, was first respondent.
Were Mr Kennedy’s submission to be upheld, it would
create a simple escape device for employers who wish to
evade the legitimate scope of s 197 by the creation of a
group structure in which employees were formally
employed by company B, albeit that it was company A
for whom they in reality performed exclusive services.”
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Questions