South African Labour Law | Case Studies | SA Labour Court | CCMA
Johannesburg (Gauteng), Cape Town (Western Cape), Port Elizabeth (Eastern Cape), Durban (KwaZulu-Natal)

South African Labour Law: South Africa has an advanced labour law system, protecting the rights of employees. Our Constitution gives all people in South Africa a right to fair labour practices. All employees have equal access to the law by way of the CCMA and the Labour Court which allows easy access to fairness and equity. The Labour Court and the Labour Appeal Court are courts of equity and fairness and the decisions of the Labour Court and the Labour Appeal court must be followed by the CCMA and lower courts. The Commissioners in the CCMA must apply principles of fairness and equity and often refer to Labour Court cases to justify their decisions.

South African Labour Law - Case Studies

Case studies in the Labour and Labour Appeal Court create precedence and have to be followed by other judges and CCMA commissioners. This ensure certainty and fairness as the principles of law are set down for everybody to know and to follow. The law on discipline is a good example where the case studies give us a clear indication of what is fair and unfair.

SA Labour Court

The Labour Court and the Labour Appeal Court are specialised courts of fairness and deal with labour matters. The Labour Court’s status is equal to that of the High Court of South Africa and you will find one in Johannesburg, Cape Town, Port Elizabeth and Durban. Only labour matters can be referred to the Labour Court. The Labour Appeal Court consists of three judges who will hear an appeal against  a judgement from the Labour Court. The Labour Relations Act specifies which cases must go the Labour Court and which must go the CCMA. Mass retrenchments, interdicts and reviews are heard by the Labour Court whereas the CCMA has jurisdiction over unfair dismissals, unfair labour practices, single retrenchments, constructive dismissals and dismissal of probation employees.

CCMA vs. South African Labour Court and SA Labour Law

The CCMA has been created by the Labour Relations Act 66 of 1995, as a “creature of statute.”  This means that the CCMA commissioners must act within the scope of the Labour Relations Act and follow the judgements of the Labour Court. CCMA rulings are not judgements so other commissioners do not have to follow it. The CCMA has been created to give speedily and easy access to labour fairness and resolution of disputes. Employees can easily refer a dispute by completing a form, the LRA 7.11 referral form and faxing or delivering it to the employer and the CCMA. The main purpose of the CCMA is to get employers and employees together as soon as possible, within 30 days, and to try and find a resolution to the dispute through a conciliation process. Only once the conciliation process is unsuccessful will the matter be referred to arbitration or will a certificate be issued declaring that the parties may strike. The biggest percentage of cases referred to the CCMA are unfair dismissal cases, which are resolved through conciliation or arbitration.

 

The Articles listed below all link to our Laboursmart website. These documents are for free and can be downloaded without the need to purchase. Just register and download as required.

Smoking in the workplace

Smoking in the work place is regulated by the Tobacco Products Control Act 83 of 1993 and the regulations as published in GNR975 of GG21610 of 29 September 2000. An employer may prohibit smoking at the workplace in toto or designate a portion of a public place as a smoking area, provided that it complies with the regulations. The employer is also obliged to ensure that no person smokes anywhere other than in the designated smoking area and employees who do not want to be exposed to tobacco smoke must be protected. Employees may object to tobacco smoke in the workplace without retaliation of any kind.

Entrapment and employees

An information sheet on the rights surrounding polygraph testing in the workplace. A useful guide when employers are potentially faced with misconduct or criminal activities such as misappropriation of property or theft.

Collective and derivative misconduct

An article discussing collective misconduct by employees and the situation were the misconduct of the employee is derived from the conduct of another.

How to deal with Union misconduct - Part 2

Part 2. An information sheet detailing what protection unions and employees have in terms of labour legislation and their liability, if any, in the event of protected or unprotected strike action.    

Promotion, a right or a privilege

Section 186(2) determines that an "unfair labour practice" is any unfair act or omission by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee. This paper discusses the law on promotions.

Reasonable expectation of renewal of fixed term contracts

The issue concerning legitimate expectation is dealt with in terms of section 186(1)(b) of the Labour Relations Act 66 of 1995 (“the Act/LRA”) which includes a 'dismissal’ to mean that employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms or did not renew it.

Remedies - What can we claim in the CCMA

When referring a claim to the CCMA, one of the first and most crucial decisions that need to be made by the employee is exactly what remedy he or she wants and what type of claim for remuneration and benefits can be claimed in the CCMA or bargaining council? Employees are often dissatisfied with their benefits and salary and threaten regularly with claims to the CCMA and Department of Labour. Employers refer to civil claims and many an employee lost jurisdictional claim for benefits and remuneration in the CCMA.

Remuneration and benefits claims in the CCMA

Many an employer and employee are at a lost as to exactly what type of claim for remuneration and benefits can be claimed in the CCMA or bargaining councils. Employees are often dissatisfied with their benefits and salary and threaten regularly with claims to the CCMA and Department of Labour. Employers refer to civil claims and many an employee lost jurisdictional claim for benefits and remuneration in the CCMA.

Sidumo - The reasonable decision maker test

The Constitutional Court case of Sidumo v Rustenburg Platinum Mines is considered where the court upheld the reasonable decision maker test. The Commissioner must first conduct a factual enquiry to establish whether the employee indeed committed misconduct. The second part of the process is to determine the fairness of the dismissal. Here the Commissioner must take into account the reasonableness of the rule breached by the employee.

Strike action - friend or foe

The purpose of setting up a trade union or belonging to one is that collective power is a fundamental concept of a trade union. An employee achieves very little when he or she is a “one man show”. A single employee can, for instance, not embark on a protected strike. Employees therefore organize themselves in trade unions in order to maximize their collective power in what we call “power play” against the employer. This ensures greater participation by employees in the regulation of their workplace matters. It is this positive effect of power-play that has been recognized by the legislature and embodied in law.

The dominant impression test

Section 200A of the Labour Relations Act was introduced in 2002 in order to deal with the abuses that came about to avoid the consequences of an employment relationship. The Act works on a presumption of employment that came about as a result of the legal test of the “dominant impression.” It deals with the presumptions that apply to determine who is an employee in the event of a dispute about the employment status of an employee.

The effect of theft in the workplace

Every employer will probably, at some stage or another, be faced with theft in its workplace. Due to the fact that theft is a dishonesty offence, we dismiss those employees guilty of theft, no matter the value of the item stolen and in most cases, factors in mitigation were not enough to tip the scale away from dismissal, as honesty goes to the heart of the relationship and theft or dishonesty destroys the trust between employers and employees.

The labour broker, the employee and the client

A consideration of the rights of a Labour Broker's employee, the role of the client of the Labour Broker and the actual Labour broker in light of a discussion through case law.

The Law on Resignation or Dismissal

Employees resign, change their minds, want to withdraw resignations and the employer wants to move on. Had the employee resigned, then the CCMA will not have jurisdiction, so whenever there is doubt, the employer will claim resignation to stay out of the CCMA.

What you say on Facebook can get you fired

Facebook, Twitter and other social network sites are part of many people’s lives, some more than others. As a consequence, employees are active and post comments, read comments or chat on a continuous basis on these sites, also during work hours. Apart from idling your time away, what you say there can also constitute misconduct.

What you say on Facebook can get you fired

Facebook, Twitter and other social network sites are part of many people’s lives, some more than others. As a consequence, employees are active and post comments, read comments or chat on a continuous basis on these sites, also during work hours. Apart from idling your time away, what you say there can also constitute misconduct.

When is a dismissal fair in alcohol abuse cases

Every chairperson, when deciding on a sanction, must go through a process where he or she decides whether dismissing the employee is the right or fair thing to do. A consideration of case law regarding fairness in intoxication misconduct cases.

When to apply for rescission in the CCMA

Rescission is governed by Rule 32 of the CCMA rules read with section 144 of the LRA. It can only be sought on very limited grounds as set out in section 144. This article considers the interpretation of section 144 - Rescission - through the case law

Latest Newsletter

Interdicting Disciplinary Hearings
By Johanette Rheeder

Disciplinary hearings are part and parcel of the workplace and form an integral part of maintaining discipline amongst employees. It is the vehicle through which progressive discipline is applied and can take various forms ranging from informal to formal hearings. Smaller employers tend to prefer the informal model of disciplinary hearings, whereas the bigger employers ....

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