Case review

Report
CASE LAW REVIEW
Indaba 2012
Cameron Morajane
SA Post Office v WF Maritz N.O. (LC)
1.
Point in issue: CCMA jurisdiction - acting allowance and
failure to deal with condonation at conciliation
2.
CCMA finding: CCMA has jurisdiction in appropriate cases.
Acting allowance is a benefit. Condonation deferred to arb
3.
LC finding: CCMA has no jurisdiction to deal with AA.
Commissioner should have dealt with condonation
4.
LC reasons/basis: reliance on the ex lege and ex contractu
principle as held in Hospersa (LAC) (pra 23)
5.
Commissioner lessons: the principle in Hospersa have not
changed. Rely on law or contract
Mohale vs. Cash Paymaster (LC)
1.
Point in issue: Can a commissioner interpret other settlement
agreement?
2.
LC finding: S24(8) interpretation and application confirmed.
-FNB vs. Mooi interpreted and distinguished. Validity was
not placed before commissioner par 35.
-No distinct power to determine other settlement.
-Interpretation and application must be incidental par 33 &
39.
-
Remittal to CCMA is indicative of power to interpret par 37.
Mohale vs. Cash Paymaster (LC) (Cont)
Commissioner lessons:
 S24(8) of the LRA not affected
 Commissioner can interpret settlement agreement- incidental.
 No power to determine or arbitrate distinct interpretation disputes.
Herhold v Nedbank 2012 (LAC)
1. Point in issue: review test in Sidumo in decline?
2.
Note Herhold is an LAC decision
3.
Exposure of commissioner - potential prejudice : “may
have come to a different decision” is it lowering the test?
(emphasis)
4.
The case of Sidumo as whole is unchallenged
5.
Commissioners lessons: Sidumos fully applicable. Must be
read together with Cash management (LAC), continue to
be a reasonable decision maker
Mabitsela v Dept of Local Government (LC)
1.
Point in issue: unfair dismissal-role of interpreter and legal
representation
2.
Arbitration: No EVD was led. Employee conceded fraud.
Requested interpreter in writing but not given. Recorder
switched off. Private discussion with employer party.
Dismissal fair
3.
Labour Court: Absence of interpreter offends fair trial. Even
if represented arbitrator duty bound 2 provide interpreter.
Applicant did not understand concessions because of
language. Award set aside
4.
Lessons for comm: when requested provide interpreter,
Irrespective of legal representation. No private sessions
Mediterranean Textile v SACTWU (LAC)
1.
Point in issue: is reinstatement of 125 employees
appropriate sanction ?
2.
Factors considered: employees dismissed for 27 months,
reinstatement will cost R10m,183 employees would lose
jobs, debt to IDT of R36m,unprotected strike, employer
contribution
3.
LAC order : reinstatement, back-pay reduced, above
factors considered, both interests balanced. Possible shut
down taken into account.
4.
Lessons for comm: balance the interest of employer and
employee. factors must be obtained during hearing. Arb
guidelines relevant, section 193 to be used with factors in
arb guide
Kievitskroon v Moledi & other (LAC)
1.
Point in issue: Leave/Sangoma training
2.
Arbitration: re-instatement without back-pay.
3.
Labour Court: The award is well reasoned. No second
guessing comm. Review not appeal. Review baseless.
Comm is a reasonable decision-maker.
4.
LAC : employee not sick in conventional sense. Cultural
belief. Section 23 of BCEA does not apply. No culture must
be trivialized.
5.
Lesson for comm: recognition of cultures, no
pronouncement on medical certificates of traditional
healers. No instruction to grant leave. No illness issue.
CCMA V INZUZU (LAC)
1.
Point in issue: Order of cost & section 126 of LRA
2.
Lesson 1: Make sure all papers files are in the file.
3.
Lesson2: Ruling must clearly indicate what material was
considered. Para 34 of judgment.
4.
Lesson 3: Despite general protection in section 126, avoid
negligence, malice or bad faith.
5.
Lesson 4: Affidavits must be filed in appropriate cases like
in this case.
6.
Lessons 5: Should the CMO read the notice of motion? Par
40 of the judgment.
Long v Prism Holding (LAC)
1.
Point in issue: Does acquisition of shares trigger sec 197?
2.
LAC: No
3.
Only shares were acquired. No trigger for sec197.
4.
The employer remained the same. Only one employer .
5.
Employees not in danger of dismissal.
6.
Long was retrenched. Section 187 does not apply.
SAMWU V Ekurhuleni Municipality (LC)
1.
Point in issue: No work no pay on fulltime shopsteward
during a protected strike
2.
LC: Does not apply
3.
The full time shop steward appointed ito collective
agreement.
4.
Full time shop stewards render service to the union not
employer. Employer pays salary. Accountable to the union.
5.
Participating in the strike is rendering service to the union.
6.
No withdrawal of service if servicing union.

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