Most Recent Publications Wed, 28 Jun 2017 09:53:40 +0000 Joomla! - Open Source Content Management en-gb Meal allowances: No second bite of the cherry

Meal allowances: No second bite of the cherry

By Gillian Lumb, Director, and Rebecca Cameron, Candidate Attorney, Cliffe Dekker Hofmeyr


An employee’s constitutional right to strike is not absolute. Section 65 of the Labour Relations Act, No 66 of 1995 (LRA) restricts an employee’s right to engage in industrial action if he or she is bound by a collective agreement which prohibits strike action. This statutory restriction on the right to strike was considered in a recent decision of the Labour Court in South African Airways (SOC) Ltd v South African Cabin Crew Association and Others (J949/17) 2017 ZALC (JHB). While the South African Cabin Crew Association (SACCA) had complied with the procedural requirements to ensure that their intended strike action would be protected, SAA successfully interdicted the strike on an application of s65 of the LRA.  


SAA and all the representative trade unions including SACCA had concluded a main bargaining forum constitution (which is a collective agreement under the LRA) creating a main bargaining forum (MBF) and a main consultation forum (MCF). The MBF dealt with substantive issues, while the MCF dealt with operational issues. Collective bargaining took place in terms of the constitution resulting in a wage agreement being concluded between the majority trade unions and SAA. The wage agreement was extended in terms of s23(1)(d) of the LRA to all non-parties including SACCA (which had refused to sign the agreement).


Following conclusion of the wage agreement SACCA referred a mutual interest/refusal to bargain dispute to the CCMA alleging that SAA refused to negotiate with it on an increase in meal allowances. SACCA referred the dispute despite the fact that the wage agreement included a provision that meal allowances are an operational issue to be dealt with in the MCF. A certificate of failure to settle the dispute was issued by the CCMA reflecting that the dispute was one of mutual interest and as such, strike action was competent. SACCA issued a notice of intention to strike. SAA then approached the Labour Court for urgent interdictory relief.


The two main issues to be decided by the court were: 


  • whether the issue in dispute forming the subject matter of the intended strike action was regulated by collective agreement ie the wage agreement and as a result, the strike action was prohibited in terms of s65 of the LRA; and


  • whether the CCMA certificate of failure to settle recording that the dispute related to a matter of mutual interest, rendered the strike action lawful.


When determining the first issue, the court considered s65 of the LRA, the nature of the issue in dispute forming the subject matter of the proposed strike and whether this issue was already directly or indirectly regulated or determined by a collective agreement. In terms of s65(1)(a) and s65(3)(a) of the LRA, employees are prohibited from taking part in a strike if they are bound by a collective agreement that prohibits a strike in respect of the issue in dispute. SACCA argued before the Labour Court that there was nothing in the wage agreement which expressly prohibited strike action on the issue of increased meal allowances. While the court agreed with this argument, it found that s65 contemplates not only an express prohibition on strike action, but a much wider prohibition.  


The wage agreement provided that “meal allowances are an operational cost intended to provide sustenance to employees on official business and it therefore does not constitute a term and condition of employment”. The agreement further provided that meal allowances must be dealt with in the MCF. The wage agreement was concluded in full and final settlement of all issues relating to wages and conditions of employment for the year 2016/2017. 


The court considered the issue in dispute namely, the demand for an increase in meal allowances and found that while this issue may constitute a matter of mutual interest in certain instances, in this instance the court had to examine whether the wage agreement regulated this issue. If it did, this would render the intended strike action incompetent. The court concluded that the wage agreement specifically determined that meal allowances are not considered a condition of employment but rather an operational issue that must be dealt with in the MCF and that SAA had the power to determine the allowances, subject only to consultation with the MCF. The wage agreement thus excluded bargaining on the meal allowances. In the circumstances, SACCA could not in effect seek to bypass the terms of the wage agreement and embark on strike action. Any strike action would be unprotected. 


Insofar as the second issue was concerned, the court found that SACCA’s argument was without merit. The court held that the issuing of a certificate by the CCMA at conciliation does not decide the nature of the dispute. The certificate cannot usurp the role of the Court in determining the nature of the real issue in dispute when dealing with a possible unprotected strike.


This case is important as it upholds the importance of collective bargaining, collective agreements and majority rule in the workplace. While SACCA may not have been in agreement with the terms of the wage agreement relating to meal allowances and had not signed the agreement, given that the agreement was extended to non-parties including SACCA it was not open to SACCA to seek to reopen the negotiations on meal allowances. The allowances were regulated in the wage agreement to which SACCA was bound and SACCA was obliged to wait on the next round of negotiations on wages to revisit the issue.  


For more information, please contact Gillian Lumb at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr







]]> (Fanie) Most Recent Publications Wed, 28 Jun 2017 03:46:43 +0000
Interesting judgment on interest

Interesting judgment on interest

By Thabang Rapuleng, Director, Taryn Jade Moonsamy, Candidate Attorney, Employment Law, Cliffe Dekker Hofmeyr


If you were ever unclear about what effect substitution of an arbitration award has on interest payable on compensation awarded in terms of an arbitration award, the Labour Court in the recent Judgment of Khwaile Rufus Malatji V Minister of Home Affairs (JR 2326-06) [2017] sheds some light.


The employee, in this case, was dismissed in 2005. Following the dismissal, the employee referred an unfair dismissal dispute to the Bargaining Council. The matter was arbitrated and the arbitrator issued an arbitration award followed by a variation award. In respect of the arbitration award, dated 14 August 2006, the arbitrator ordered that the employee be reinstated and paid back pay. On 30 August 2006, the arbitrator varied the arbitration award by stating that, “if the compensation was not paid by 30 September 2006 then it should accrue interest on a normal basis”. 


Shortly after, the employer challenged the arbitration award and launched a review application in the Labour Court. On 2 April 2013, Snyman AJ made an order setting aside the reinstatement order and substituted the arbitration award in toto (as a whole) by granting the employee compensation equivalent to nine months’ salary. The employee was paid the compensation but the issue then arose as to whether interest was payable on that compensation.


Following the judgment of Snyman AJ and the payment of the compensation, the employee reverted the matter back to the Labour Court before Harper AJ to determine whether interest was payable from the date of the arbitration award or as from the date of the Labour Court judgment which dealt with the review application.


The employer’s case was that the interest payable on the compensation is determined by interpreting “substitution as a whole” and other relevant factors. On the other hand, the employee’s case was that interest payable is fortified by s143(2) of Labour Relations Act, No 66 of 1995 (LRA), which essentially provides that “if an arbitration award orders a party to pay a sum of money, the amount earns interest from the date of the award… unless the award provides otherwise”. 


The court held that s143(2) of the LRA is straightforward however it fails to account for circumstances where an arbitration award is later substituted by an order of the Labour Court. It further held that while s143(2) of LRA bears no reference to the Labour Court, there is a direct link between s143(2) and review proceedings. This is because the court “is being asked to review the arbitration award and essentially acts as the arbitrator to the extent determined by it in the Judgement. The Labour Court is therefore entitled to review the issue of interest and decide whether to grant interest from the date of the arbitration award or from a later date or not grant interest at all”. The Courts’ position in this regard is premised on the all-encompassing provision of s145(4)(a) of the LRA, which empowers it to determine the dispute “in the manner it considers appropriate”.


The court ultimately held that in applying the meaning of “substitution”, which is defined as putting something “in the place of another”, the interest payable on compensation in terms of s143(2) of the LRA falls away and the order of the Labour Court would substitute the arbitration award on the issue of interest. In the review application, Snyman AJ elected not to grant interest on the compensation payable, which this Court upheld. In upholding this decision, the Court stated that Snyman AJ was entitled to make such a finding considering the interpretation of substitution, s143(2) read with s145(4)(a) of the LRA and the Labour Courts inherent jurisdiction to deal with interest payable on compensation. The court found that the substitution of the arbitration award was intended to rectify the arbitration award issued by the Arbitrator and not to penalise the employee in permitting that interest be paid from the date of review judgment.


It held that where a Judge issues an order which is punitive in respect of interest payable, he or she must substantiate such an order and reasons thereof must be fully cognisant with the provisions of s143(2) of the LRA. Therefore, where a party is aggrieved by the Labour Court’s pronouncement on interest payable, such party must lodge an appeal with a higher court which has the necessary jurisdiction to overrule such an order. 


For more information please contact Thabang Rapuleng at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr








]]> (Fanie) Most Recent Publications Wed, 21 Jun 2017 05:02:06 +0000
Incompatibility in the workplace – those irreconcilable differences

Incompatibility in the workplace those irreconcilable differences

By Judith Griessel, Griessel Consulting


Couples who get divorced can do so on the basis of ‘irreconcilable differences’ – they know the relationship does not work, but they cannot necessarily specify any one reason. It may not be anyone’s fault, but if the breakdown in the relationship cannot be repaired, it is time for a fitting end. So too in the workplace when the employee is incompatible with the employer’s working environment.


‘Incompatibility’ has been referred to by a number of legal authors and presiding officers as “an amorphous and nebulous concept based on subjective value judgements”. In the South African employment environment where fairness and objectivity is everything, applying such a concept is in its nature dangerous and imbued with risk. Yet, the reality often is that an employee’s attitude, his way of doing things, his disruptiveness, pushiness, temper, impatience, lack of tact, meddling, manipulation, interpersonal relationships or just his general disagreeability, are causing upsets and are interfering with the smooth running of the business. Although he is making his targets and performing on par, other employees persistently complain about him, clients don’t want to work with him and whenever this is raised with him, he becomes defensive and alludes to victimisation (or discrimination of some sort). You don’t quite know what the problem is, but you just know he has to go.


Sounds familiar?


The employer’s rights in such a situation

In the absence of statutory guidance, the principle that the employer is entitled to require peace and harmonious working relationships in the organisation, has been confirmed by case law over the years. (Erasmus v BB Bread Ltd [1987] 8 ILJ 537 (IC)). It is an implied term of the employment contract that the employee must not act in a way which results in disharmony and a breakdown in the relationship (Council of Scientific & Industrial Research v Fijen [1996] 6 BLLR (AD)).


When the continued employment of the employee concerned causes disharmony in the workplace, the employer is entitled to address the problem and, if it does not improve, to remove the cause of the disharmony by dismissing the employee.


When can it be said that an employee has become “incompatible”?

There must be some other evidence besides the say-so or opinion of the employer. The typical workplace includes a wide variety in personalities, approaches and managerial styles and the employer is required to tolerate mild eccentricity or idiosyncrasies.


  • Incompatibility relates to “the subjective relationship of an employee and other co-workers within the employment environment, regarding the employee’s inability to maintain cordial and harmonious relationships with his peers”. (Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC)).


  • Employees become incompatible when their colleagues, subordinates or superiors are unable to tolerate their behaviour.


  • Where the employee's eccentric behaviour is of such a gross nature that it causes consternation and disruption in the workplace, after he or she has been properly counselled or warned (Joslin v Olivetti Systems & Networks Africa (Pty) Ltd [1993] 14 ILJ 227 (IC)).


  • An ‘inability on the part of the employee to work harmoniously with fellow workers or managers or the employee does not fit with the corporate culture’.


  • Where an employee is not suited to his work because of his disposition or character and does not fit in with his work environment and relates poorly to his colleagues or clients and, as a result, creates an unhappy or hostile working environment.


  • Caution must be exercised when the alleged incompatibility relates to an employee lodging a grievance, or who is the subject of a grievance; or who reacts to an intolerable work environment created by an employer, or to the unreasonable or unlawful demands of an employer.


  • Incompatibility must reflect an irreconcilable breakdown in the working relationship caused by personality differences, resulting in the employee’s inability to work with others. (Wright v St Mary's Hospital, 1992)


The legal context

The LRA does not make any specific reference to "incompatibility" as constituting a ground for dismissal. The three stated grounds are misconduct, incapacity and operational requirements. Case law have however established that incompatibility is a species of incapacity which affects the employee’s ability to work according to his contract. (Jabari v Telkom SA (Pty) Ltd (supra)).


It is important to distinguish between this scenario and one of misconduct. Misconduct requires the employer to take disciplinary action based on the fault (intention or negligence) of the employee in breaching valid workplace rules / standards. Incapacity (and thus incompatibility) involves a counselling process – no disciplinary warnings – as it is regarded as a ‘no fault’ situation based on the inability of the employee to act as required by the relevant workplace standards. Generally speaking, misconduct are more likely to pertain to a specific incident of unacceptable behaviour, whilst incompatibility relates more to continuous and underlying disharmonious conduct on the part of the employee.


Employers should also not be tempted to devise some other pretext for dismissing an employee with whom they are incompatible, rather than appropriately addressing the incompatibility. Neither should incompatibility be used to disguise another reason why the employer wants to get rid of an employee.


  • In Nathan v Reclamation Group (Pty) Ltd [2002] 23 ILJ 588)a new operations director stripped the existing director of his powers, humiliated and downgraded him. The employee was later dismissed on charges of poor work performance. However, the CCMA found that the apparent poor performance of the dismissed director had been fabricated by the operations director and that the real reason for this dismissal was incompatibility between the two of them. The arbitrator therefore found the dismissal to have been unfair.


  • In Cutts v Izinga Acess (Pty) Ltd [2004] 8 BLLR 755) the employee was retrenched, but the Labour Court found that the real reason for the dismissal was incompatibility between the employee and some fellow managers.


  • In Jabari v Telkom SA (Pty) Ltd [2006] 10 BLLR 924 (LC), the employee initiated grievance and legal proceedings against management and rejected a voluntary severance package. He was dismissed for incompatibility, however in this case, the employer’s contention that the employment relationship had irretrievably broken down, was not proven by the evidence. The employee’s dismissal therefore constituted victimisation, which rendered the dismissal automatically unfair.


  • Incompatibility could also encompass situations where the employer’s beliefs are at odds with an employee’s beliefs. Workplaces with a particular corporate culture may be uncomfortable for employees with different values and this could potentially create situations where the non-conformist employee comes to be regarded as ‘incompatible’ with the employer’s requirements. When the expectations of compatible behaviour amount to imposing the employer’s value system, it could infringe an employee’s right to freedom of conscience, belief or expression and expose the employer to a claim of automatically unfair dismissal. In Zabala v Gold Reef City Casino [2009] 1 BLLR 94 (LC) it has been held that disapproval of extra-marital affairs may qualify as a ‘belief’ and that dismissal of an employee for this reason would be automatically unfair. To prove incompatibility, it is not enough for the employer to show that the employee did not “fit in” - it must be shown that the employee was in some way responsible for the conflict of values.


When will a dismissal for incompatibility be fair?

Section 185 of the Labour Relations Act states that every employee has the right not to be unfairly dismissed and the employer is accordingly required to follow a fair procedure (procedural fairness) and the dismissal must be for a fair reason (substantive fairness).


Fairness excludes arbitrary decision making or unfair discrimination towards a difficult employee.  The employer must first investigate and evaluate the situation and gather facts. If the employee is not the cause of the disharmony, the employer must deal with the true problem uncovered. Dismissal will only be accepted as a fair solution if the incompatibility has been caused by the employee and have resulted in an irremediable breakdown. Dismissal for incompatibility is an act of last resort and is not accepted as justified if the employee has not been counselled and given an opportunity to rectify the situation.


The courts have provided specific guidelines for practical implementation, for example in Jardine vs Tongaat Hulett Sugar Limited [2002] 23 ILJ 547 and Jabari v Telkom SA (Pty) Ltd (supra).


Procedural fairness

The employer must apply the rules of natural justice and is required to seek ways of reversing the incompatibility. When the conduct of an employee creates disharmony, the employer must evaluate the problem and attempt to assist the employee to overcome his or her personal difficulties. The employer must make some sensible, practical and genuine efforts to effect an improvement in interpersonal relations when dealing with an employee whose work is otherwise perfectly satisfactory (Lubke v Protective Packaging (Pty) Ltd (1994) 15 ILJ 422 (IC)).


  • The offending employee has to be advised what conduct allegedly causes disharmony and who is upset by the conduct


  • Discuss possible remedial actions to remove the cause of the disharmony and alert the employee to the possibility of termination of employment, should this not be possible


  • Give the employee a fair opportunity to remedy the situation if he/she is the cause, and a reasonable period to do so – follow up and monitor (keep a paper trail)


  • The employee must be allowed to make representations on measures to avoid dismissal


  • Consider alternative positions


  • Give the employee an opportunity to respond to the allegations before final decision to dismiss is made


  • The employee may be assisted during the process by a co-worker.


Substantive fairness

The employer's own strong feelings about incompatibility is entirely insufficient. Although incompatibility is a subjective concept, the courts and arbitrators want facts and hard evidence rather than feelings. The employer must be able to prove that there was a fair reason for dismissal on the basis of the employee’s incompatibility (incapacity).


  • Proof that the intolerable conduct on the part of the employee was the primary cause of the disharmony / conflict in the workplace.


  • Did the disharmony have a (potentially) adverse effect on the employer’s business?


  • Was the disharmony or tension irremediable despite providing fair opportunity to do so?


  • Was the termination of the employee’s contract the only reasonable way in which the cause of the disharmony could be removed?


  • Was there an irretrievable breakdown in the employment relationship – it is required of the employer to show how, where, when and how the employee’s conduct led to a breakdown of the employment relationship.  



Incompatibility is a valid ground for dismissal in South African labour law - however employers should act cautiously when relying on this ground to dismiss employees and follow the guidelines provided by the courts in this regard.


For more information, please contact Judith at







]]> (Fanie) Most Recent Publications Mon, 19 Jun 2017 04:50:16 +0000
“But didn’t we get rid of him?”

“But didn’t we get rid of him?”

By Jose Jorge, Director and Steven Adams, Associate, Employment, Cliffe Dekker Hofmeyr


An inquiry by an arbitrator in terms of s188A of the Labour Relations Act, No 66 of 1995 has proven to be a very popular process for employers to utilise. The case of Sampson v South African Post Office (J2106/15) [2017] ZALCJHB 145 serves as a cautionary tale and highlights one of the pitfalls of using this process.


The aim of the procedure is to expedite the disciplinary process leaving the parties with a final and binding award. The only option for a party dissatisfied with the award is to have it reviewed and set aside by the Labour Court. This is certainly a laudatory aim. 


The case of Sampson v South African Post Office (J2106/15) [2017] ZALCJHB 145 serves as a cautionary tale for employers making use of an inquiry by an arbitrator.


In April 2011, the employee was appointed by the employer as a manager in its legal services department. The relationship proved difficult and some seven months later in November 2011, the employer suspended the employee pending an investigation into allegations relating to a breach of his fiduciary duties and insubordination. 


The parties agreed to an inquiry before an arbitrator appointed by Tokiso Dispute Settlement, an accredited agency. On 4 June 2012, the arbitrator found the employee guilty of the allegations and summarily dismissed him. Dissatisfied with the arbitrator’s award, the employee approached the Labour Court in July 2012 to have the award reviewed and set aside. In September 2012, some three months after his dismissal, the employee commenced employment with a new employer, LegalWise. 


Three years later, on 3 September 2015 the review application was finally heard in the Labour Court. The employer did not make an appearance and a default order was granted, reviewing and setting aside the arbitrator’s award and remitting the matter back to Tokiso for a rehearing before a different arbitrator.


Quickly out of the blocks, on 8 September 2015 the employee’s attorneys wrote to the employer stating that in light of the Labour Court’s finding that the employment relationship had been re-established, not only should the employee be compensated for the period of three years and three months since June 2012, but that he should be paid his monthly salary as an employee of the employer from September 2015 (the date the review application was determined). 


The employer denied the employee’s claims. It maintained that the dismissal stood until the outcome of the new arbitration hearing. It further submitted that it personally had no obligation to organise another arbitration in that the court had ordered Tokiso to do so, on service of the order.


On 26 October 2015, the employee launched an application asking the Labour Court to retrospectively revive his contract of employment with the employer as if he had never been dismissed. The employer argued that the status of an arbitrator in terms of s188A of the LRA is unique in that the arbitrator stands in the role of a chairperson in a disciplinary enquiry and as an arbitrator. It maintained that when an enquiry by an arbitrator is reviewed and set aside that, as with the outcome of an internal disciplinary hearing, the dismissal must stand unless ordered otherwise by the court. 


The main question before the Labour Court: when the arbitrator’s award was reviewed and remitted back for another “pre-dismissal arbitration”, did that mean that the employee was once again employed as if he had never been dismissed, and as a result entitled to be compensated, or did it mean that he remained dismissed until the matter was reheard?


In a judgment delivered on 10 May 2017 (almost four years after the initial termination of the relationship) the Labour Court found that the order reviewing and setting aside the award restored the status quo ante. The effect of the order was that the dismissal could not remain in force. In effect, the order revived the contract of employment as if the employee was never dismissed. 


The court then went on to consider the employee’s claim for payment. The relief claimed by the employee was not that he be accepted back into employment but simply a remittal of the award for rehearing. The employee, despite not tendering his service to the employer for the last three years, sought payment up until the date of judgment even though he remained in the employ of LegalWise. 


The court awarded what it described as “essentially backpay” for the period between the employee’s “dismissal” and the date of the review court’s decision (three years and three months). The amount payable was to be calculated as the difference between what the employee would have earned as an employee of the employer and what he earned at LegalWise in the same period. 


The court did not attach any significance to the employee’s failure to tender his services to the employer after the review court’s decision. It found that it would be artificial to expect the employee to resign from the employ of LegalWise, where he had been able to mitigate his losses after his “unfair dismissal” by the employer to pursue his claims in this regard. While the court accepted that the failure of an employee to tender services after being reinstated may have serious legal consequences, in the case before it, the court felt it was clear that the employer had made it clear that it would not have accepted the tender of his services. The court accordingly awarded the employee remuneration calculated as the difference between what he would have earned at the employer and what he earned at LegalWise from 3 September 2015 to 26 October 2015. 


The employee was also awarded accrued leave from 4 June 2012 to 26 October 2015. The court did not consider that the employee would have accrued and taken annual leave while working at LegalWise.

The court accepted that its judgment was contrary to the purposes of s188A of the LRA which was to avoid long delays in the resolution of disputes and the attendant risk of backpay. It referred to the unreported case of SATAWU & others v MSC Depots (Pty) Ltd where the court highlighted this risk where it stated “that an employer must run when it decides to place the function of workplace discipline in the hands of an unknown third party … But the integrity of the system depends on the expertise of the arbitrator, and that is where the first employer’s initial confidence in the system was betrayed”. The court held that its hands were tied and suggested that s188A might benefit from legislative scrutiny in future. This is cold comfort for any employer.


This judgment, whether correct or not, is certainly contrary to the purpose of s188A. It serves as a disincentive for any employer considering whether to use s188A especially in circumstances where the employee may have been guilty of the allegations against him.


For more information contact Jose Jorge at or Steven Adams at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr








]]> (Fanie) Most Recent Publications Wed, 14 Jun 2017 04:48:57 +0000
The Binding Nature Of Collective Agreements On Minority Unions


The Binding Nature Of Collective Agreements On Minority Unions

By Jacques Van Wyk, Director, Andre van Heerden, Senior Associate, Werksmans Attorneys



Whether a collective agreement concluded between a majority union and an employer, but extended to a minority union, can prevent the minority union from engaging in strike action.


Whether a certificate of outcome, issued by the Commission for Conciliation, Mediation and Arbitration (“CCMA”), is determinative of whether the issue in dispute is or is not capable of being the subject matter of a strike.




Court’s Decision

In the case of South African Airway (Soc) Ltd v South African Cabin Crew Association and Others (J949/17) 2017 ZALCJHB (10 May 2017) the Court had to consider the above issues.


South African Airways (“SAA”) regulates collective bargaining on an internal central level. To this end a Main Bargaining Forum Constitution (“Constitution”) was concluded between SAA and all representative trade unions. The Constitution created a Main Bargaining Forum (“MBF”) and a Main Consultation Forum (“MCF”). The MBF dealt with ‘substantive issues’ whereas the MCF dealt with ‘operational issues’ (i.e. issues that are, among others, not considered substantive issues or matters of mutual interest).


The term ‘substantives issues’ was defined in the Constitution as meaning “any matter of mutual interest or any issue relating to employees’ terms and conditions of employment or any substantive agreement concluded between SAA and the trade unions or any other issues with financial implications not covered by the employees’ contracts of employment.”


The recognised trade unions included the National Transport Movement (“NTM”), United Association of South Africa (“UASA”), South African Transport and Allied Workers Union (“SATAWU”) and the South African Cabin Crew Association (“SACCA”). The National Union of Metalworkers (“NUMSA”), while not a recognised union, is also involved in SAA.


NUMSA and UASA, acting together, concluded a wage agreement with SAA in the NBF. This wage agreement was a collective agreement for the purposes of the Labour Relations Act 66 of 1995 (“LRA”). The wage agreement was extended, in terms of section 23(1) (d) of the LRA, to the other unions, including SACCA. The wage agreement was applicable from 1 April 2016 to 31 March 2017.


The wage agreement stipulated that “meal issues are an operational cost intended to provide sustenance to employees on official business and it therefore does not constitute a term and condition of employment.” As such, ‘meal allowance’ was to be dealt with in the MCF and not NBF.


The issue of an increase to international meal allowances subsequently became an issue of contention between SAA and SACCA. SACCA approached the CCMA, on 10 June 2016, for a determination as to whether, among others, the collective agreement had been validly extended to it and, if so, whether the wage agreement resolved the conditions of employment dispute between SAA and SACCA. The CCMA agreed that it had. On 14 September 2016 SACCA then referred a refusal to bargain / mutual interest dispute to the CCMA.SAA countered by referring, on the same day, a dispute about the interpretation / application of the wage agreement. The disputes were consolidated. The consolidated dispute was subsequently resolved on the basis that the parties would engage on ‘objective discussions’ regarding the refusal to increase the international meal allowances. After discussions with SAA proved unfruitful SACCA referred a new mutual interest dispute to the CCMA regarding an increase to meal allowances. The CCMA issued a certificate of non-resolution declaring the dispute unresolved and that ‘strike action was competent.’


On the 26 April 2017 a number of cabin crew, being members of SACCA, (“strikers”) commenced strike action after having given notice of same to SAA on 21 April 2017. At this juncture SACCA had complied with the procedural requirements to declare a lawful strike as set out in section 64 of the LRA.


In response SAA approached the Labour Court on an urgent basis seeking an interim order that the strike be declared unlawful. The urgent application was unopposed. The order was granted. On 3 May 2017 the Labour Court was concerned with whether the interim order should be confirmed (i.e. made a final order).


For more information, please contact Jacques Van Wyk at, or  Andre van Heerden at 

Article published with the kind courtesy of Werksmans Attorneys   







]]> (Fanie) Most Recent Publications Wed, 07 Jun 2017 11:13:29 +0000
Rewarding non-striking employees?


Rewarding non-striking employees?

By Hugo Pienaar, Director, Prinoleen Naidoo, Associate, Employment practice, Cliffe Dekker Hofmeyr


A discussion of National Union of Metal Workers of South Africa obo Members v Element Six Production (Pty) Ltd (JS1106/14) [2017] ZALCJHB 35 (7 February 2017).


The Industrial Court under the old Labour Relations Act, No 28 of 1956 (1956 LRA) did not prohibit employers from rewarding non-striking employees for not participating in a legal strike. 


The drafters and subsequent amenders of the current Labour Relations Act, No 66 of 1995, (the LRA) did not take up the opportunity to expressly prohibit the payment of “tokens” to non-striking employees.


The Labour Court recently had an opportunity to determine when “tokens” of appreciation may be paid to non-striking employees in the case of National Union of Metal Workers of South Africa obo Members v Element Six Production (Pty) Ltd. 


The employer, in that case, paid a “token” to some of its non-striking employees who had performed additional tasks during the course of a protected strike. There was no explanation as to what the “token” was, however, it appeared to be monetary payments. Importantly, the “tokens” were paid to the employees after the strike was over. 


The non-striking employees who received “tokens” volunteered to perform extra work during the course of the protected strike. They could not be paid shift allowances or overtime in exchange for performing the extra work, as there was no provision for this in their contracts of employment. It was in light of this, that the employer elected to use a different method of compensation, being payment of a “token”. 


The employees who went on strike referred a dispute to the Labour Court contending that the decision of the employer to pay the “tokens” to non-striking employees was discriminatory.


The employer argued that the payment of “tokens” was not discriminatory on any specified or unspecified ground. The criteria applied in paying such “tokens” was objective and rational and the payment did not have any effect on the effectiveness of the strike, nor was it likely to have a detrimental effect on future strikes.


The striking employees, on the other hand, argued that they “lost out” by going on strike, as they did not get the “token”, and were also not paid for the duration of the strike. The striking employees were also concerned that the non-strikers benefitted from the increase in wages attained as a result of the strike action, and therefore argued that the employer had discriminated against them by not equally paying them the “token”. 


The court held that the payment of the “token” amounted to unfair discrimination as the striking employees were prejudiced for their participation in the lawful activities of their trade union and for the exercise of their right to strike.


The court did not order the employer to pay the same “token” to the striking workers as it found that to grant such relief would condone or compound the illegitimate conduct of the employer. The court deemed a declaratory order prohibiting the repeat of similar conduct as appropriate.

This case is important as it confirms the previous decisions of the courts under the new LRA that payment of rewards to non-striking employees constitutes discrimination. It may also amount to a direct, or even an indirect, interference with their right to associate in the collective bargaining process, which includes striking as provided for in the LRA.


It also appears from this case, as well as other decisions of the courts that payment of rewards may be prohibited even where there is a practice of paying them, they are included in the employment contract as a term and condition, or they are paid during or after the strike. 


Courts have not expressed a view, however, whether the payment of “tokens” of appreciation would still be unlawful if they were paid during or after an unprotected strike. However, it is unlikely that the court would prohibit payment of “tokens” for work done during an unprotected strike, given the fact that there is no lawful right to strike that requires protection. 


This case also raises the question of what kinds of payments, in addition to their normal salaries, may be legally made to non-striking employees for work performed during a protected strike.


Employers are permitted by section 10 of the Basic Conditions of Employment Act, No 75 of 1997 to require or permit employees to work overtime, provided employers have agreed on this with employees and the amount of hours worked does not exceed the maximum hours permitted by the section. Non-striking employees may thus be allowed to work overtime and perform the work of striking employees provided that the non-striking employees volunteer and are in no manner compelled or coerced into doing so. 


Employers may of course also hire replacement labour during a strike, subject to certain limitations.


In light of this case, employers should be wary of rewarding non-striking employees by paying them “tokens”. The employer may, however, pay non-striking employees overtime for work performed during the strike (provided that employees consent and the hours do not exceed the maximum prescribed by the BCEA) and/or use replacement labour, within the limits provided for in the LRA, if it wishes to continue production. Such remedies have the effect of softening the blow to the employer.


For more information, contact Professor Hugo Pienaar at or Prinoleen Naidoo at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr








]]> (Fanie) Most Recent Publications Tue, 06 Jun 2017 04:54:33 +0000
Can former employees refer Unfair Labour Practice and Unfair Discrimination disputes?


Can former employees refer Unfair Labour Practice and Unfair Discrimination disputes?

By James Horn, Associate, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys


Employers have often relied on the definitions of “employee” contained in the Labour Relations Act (“the LRA”) and the Employment Equity Act (“the EEA”) in order to prevent former employees from referring unfair labour practice and/or unfair discrimination disputes.


Both the LRA and the EEA define employees in a manner which, on a literal interpretation, excludes former employees from referring such disputes.


In this regard, section 186(2) of the LRA provides that an unfair labour practice “means any act of omission that arises between an employer and an employee…” and section 191 permits “the employee alleging the unfair labour practice…” to refer a dispute. 


Similarly, section 6 of the EEA provides that “no person may unfairly discriminate, directly or indirectly, against an employee…”.


Consequently, so the argument goes, once an employee’s employment is terminated she/he is no longer entitled to refer an unfair labour practice or unfair discrimination dispute because she/he is not an ‘employee’ in terms of the LRA or the EEA.


In Sithole v Nogwaza NO & others (1999) 20 ILJ 2710 (LC), the Labour Court adopted this reasoning in relation to a claim brought by a former employee under the residual Unfair Labour Practice provisions of the LRA. The Court held as follows:-


“…the remedies available in schedule 7 item 3 relative to the residual unfair labour practice listed in item 2(1), with the exception of item 2(1)(d), are available only for disputes which arise between employers and employees, that is where there is an existing employment relationship at the time the dispute is referred to the Commission (Emphasis added).


This position was subsequently refined in Velinov v University of KZN & others [2005] JOL 16038 (LC) where the Court held that employees were also entitled to refer unfair labour practice disputes during their notice periods (because they remained employees during that period).


The majority of the Rulings by the CCMA and Judgments of the Labour Court followed the aforementioned decisions and consequently former employees were effectively precluded from referring unfair labour practice and unfair discrimination disputes after their employment had been terminated.


There was, however, some dissent. In NS v South African Mutual Life Assurance Society Ltd t/a Old Mutual & Others  [2001] 8 BLLR 935 (LC)the Labour Court held as follows:-


I see no basis in law or equity upon which a remedy sought in respect of a wrong committed by an employer or employee against the other can be denied simply because the relationship has come to an end, there has to be something substantially more”. (Emphasis added).


In the recent unreported case of Malope Mathews v Crest Chemicals (Pty) Ltd (Unreported, Labour Court, Van Niekerk, J, 20 February 2017, JS286/15), the Labour Court again re-visited the majority position. The Labour Court noted that restricting the unfair labour practice and unfair discrimination provisions to current employees by virtue of a literal interpretation of the term ‘employee’  “is at variance with an interpretation that promotes constitutional values and in particular, the right to equality in employment and the right to fair labour practices…”.


Consequently, the Court held that the fact that the dispute was referred by the employee after the termination of his employment was not fatal to his claim and the matter should proceed to trial.


The decision in Crest Chemicals is consistent with the general approach by the Courts to ensure that legislation is read in such a way so as to protect constitutionally enshrined rights (including the right to fair labour practices and not to be unfairly discriminated against).


In light of the Crest Chemicals Judgment, it appears that the door is now open for former employees to refer unfair labour practice and unfair discrimination disputes despite the termination of their employment (provided that the dispute pertains to events that transpired during the employee’s employment). This could have serious implications for employers.


For more information please contact James Horn at  telephone (011) 783 8711 / (011) 048 3000







]]> (Fanie) Most Recent Publications Mon, 05 Jun 2017 04:31:28 +0000
I’m entitled to ask you questions…

I’m entitled to ask you questions…

By Mohsina Chenia, Executive Consultant and Piet Joubert, Candidate Attorney, Employment, Cliffe Dekker Hofmeyr


The right to cross-examine a witness goes to the root of a fair hearing.


Despite the onus on a commissioner to deal with arbitration disputes quickly and with minimum legal formalities, there are certain procedural requirements that may not be dispensed with and may result in an arbitration award being set aside.


The Labour Appeal Court has recognised that the failure of a commissioner to allow a party to cross-examine a witness may constitute a reviewable irregularity and may result in the award being set aside.


In Consol Glass v National Bargaining Council for the Chemical Industries and Others (JA5/15) [2017] ZALAC 12, the commissioner unduly curtailed the cross-examination of a witness. Furthermore, the record of the arbitration proceedings revealed that the commissioner displayed a level of intolerance when one of the witnesses was testifying.


The Labour Court held that the commissioner’s failure to allow a party to cross-examine a witness resulted in a failure of justice in that the party did not receive a fair hearing. The Labour Court was of the view that it mattered not whether the outcome would have remained the same and reasoned that the failure to allow a party to cross-examine a witness will amount to a gross irregularity as envisaged in s 145(2) of the Labour Relations Act, No 66 of 1995 and will render the award one which a reasonable arbitrator could not reach. On this basis alone, the Labour Court held the review application had to succeed.


The Labour Court accordingly set aside the award and referred the matter to the Bargaining Council to hear the matter afresh.


The matter was taken on appeal to the Labour Appeal Court. It found that it was clear from the record of the arbitration proceedings that the commissioner displayed a level of intolerance towards one of the parties and that this behaviour was inappropriate. The court held that judicial temperament is inherent in a commissioner’s duties and is an important element of the realisation of justice for all.


The Labour Appeal Court also referred to the minority decision of the Constitutional Court in Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (CCT 228/14) [2015] ZACC 557 wherein the court held that any decision by a commissioner which prevented a party from cross-examining a witness on a crucial aspect of a case will be seen as a gross irregularity justifying the setting aside of the award.


The court concluded by stating that “the right to cross-examine a witness goes to the root of a fair hearing” and a failure to allow a party to cross-examine a witness will constitute a reviewable ground.


What is clear from the Labour Appeal Court judgment is that cross-examination is a fundamental procedural aspect of a fair arbitration hearing as parties have the right to test each other’s evidence.


It is also apparent from the Labour Court judgment that the failure to allow cross-examination of a witness, even if this did not impact on the outcome of the award, may still amount to a reviewable irregularity.


The Labour Appeal Court decided that the evidence of the witness whose cross-examination was curtailed was essential to the question of whether the dismissal was effected for a fair reason.


It is important for representatives conducting arbitrations to be fully aware of their rights during arbitrations so as to ensure that their case is properly ventilated.


For more information please contact Mohsina Chenia at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr







]]> (Fanie) Most Recent Publications Tue, 30 May 2017 05:26:47 +0000
Possible change in section 189 requirements: Can employers embark on redeployment before retrenchment processes commence?


Possible change in section 189 requirements: Can employers embark on redeployment before retrenchment processes commence?

By Aadil Patel, Director, National Practice Head and Samantha Bonato, Associate, Employment, Cliffe Dekker Hofmeyr


The recent case of ArcelorMittal South Africa Limited v NUMSA (case number: J 421/17) unpacked what is meant by avoiding job losses.


Judge Van Niekerk held that s189 of the Labour Relations Act, No 66 of 1995 (LRA):


“specifically contemplates that prior to a formal invitation to consult being issued, measures to avoid job losses are to be considered and where necessary, implemented. Indeed, a failure to do so undermines the notion of retrenchment as a measure of last resort and amounts to breach of this section.” 


What does this mean for employers? The answer lies in the facts of this case. 


The employer sought to restructure its operations in order to avoid retrenchments. It had not issued any s189(3) notices. The National Union of Metalworkers of South Africa sought to halt the redeployments to consult further with ArcelorMittal.


Their application was dismissed. The Court held that an employer must embark on measures to avoid job losses even before a s189(3) notice is issued. Such measures include the redeployment of employees from one job to another.


In light of this recent decision, could an employer offer voluntary severance packages to employees in order to avoid job losses prior to issuing s189(3) notices. Current case authority seems to suggest otherwise. 


For more information please contact Aadil Patel at aadil.patel@cdhlegal.comor Samantha Bonato at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr







]]> (Fanie) Most Recent Publications Wed, 24 May 2017 11:07:29 +0000
Employees Have a Legal Recourse Against Unfair Discrimination in the Workplace


Employees Have a Legal Recourse Against Unfair Discrimination in the Workplace

By Magate Phala


Section 6 (1) of the Employment Equity Act 55 of 1998 as amended provides that no person may unfairly discriminate, directly or indirectly, against any employee in any employment policy or practice. Such discrimination includes race, gender, sex, pregnancy, marital status, family responsibility, ethnic, or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.


The Act further provides that harassment of an employee is a form of unfair discrimination and is prohibited on any one or a combination of grounds of unfair discrimination listed in subsection 1.


Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) defines discrimination as meaning:


“any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly:


(a) imposes burdens, obligations or disadvantage on, or


(b) withholds benefits, opportunities or advantages from any person on one or more of the prohibited grounds.”


Section 6 of PEPUDA supra stipulates that neither the State nor any person may unfairly discriminate against any person.


In his book entitled Employment Rights second edition (Juta 2014) at page 214, Professor John Grogan distinguishes between direct and indirect discrimination. He states that direct discrimination occurs when adverse action is taken against people precisely because they possess one of the characteristics listed in section 6 of the Employment Equity Act, or akin thereto; for example, when a woman is overlooked for promotion merely because she is a woman. Direct discrimination, however, occurs when seemingly objective or “neutral” barriers are placed before people which exclude members of particular groups merely because they happen to members of those groups. Indirect discrimination may be either intentional or unintentional.


An employee who has been unfairly discriminated against may refer the dispute in writing to the CCMA within six months after the act or omission that allegedly constitutes unfair discrimination. If the dispute remains unresolved after conciliation, the employee may refer the dispute to the Labour Court for adjudication or an employee may refer the dispute to arbitration if the employee alleges unfair discrimination on the grounds of sexual discrimination.


Who bears the burden of proof?

Section 11 (1) of the Employment Equity Act supra further provides that if unfair discrimination is alleged on a ground listed in section 6 (1), the employer against whom the allegation is made must prove, on a balance of probabilities, that such discrimination:


(a) did not take place as alleged or


(b) is rational and not unfair or is otherwise justifiable.


Subsection 2 provides that if unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on a balance of probabilities, that:  


(a)   the conduct complained of is not rational;


(b)   the conduct complained of amounts to discrimination, and


(c)   the discrimination is unfair


Remedies for Unfair Discrimination Disputes

If the CCMA or the Labour Court decides that an employee has been unfairly discriminated against, the Court/CCMA may make any appropriate order/arbitration award, including:


(a)   the payment of compensation by the employer to that employee;


(b)   the payment of damages by the employer to that employee;


(c)   an order/award directing the employer to take steps to prevent the unfair discrimination or similar practice occurring in the future in respect of other employees.


In Ntsabo v Real Security CC (2003) 24 ILJ 2341 (LC), a female employee had resigned and claimed constructive dismissal arising from the complaint that she was sexually harassed and assaulted by another security guard who was her supervisor. The employer failed to take any disciplinary action against the supervisor despite receiving and being aware of the complaint. In the first instance, the Court confirmed the power it had in terms of section 50(2) of the EEA to award (a) compensation and (b) damages in cases of discrimination. In dealing with the facts of the case the Court held that:


“For the purposes of the EEA, failure of the respondent to attend to the problem brings the whole issue within the bounds of discrimination. The nub of the complaint laid with the respondent involved sexual harassment. Its failure to attend to the matter is by definition as envisaged by s6 (3) read with s6 (1) of the EEA, discrimination based on sexual harassment.”


In Department of Correctional Services and Another v Popcru and Others, the Supreme Court of Appeal ruled as automatically unfair the dismissals of male correctional officers who were dismissed for refusing to cut their dreadlocks on the basis that it discriminated against the officers on the grounds of religion, culture and gender. The SCA held as follows at paragraph 25:


“Even assuming otherwise, no evidence was adduced to prove that the respondents’ hair, worn over many years before they were ordered to shave it, detracted in any way from the performance of their duties or rendered them vulnerable to manipulation and corruption. Thus, it was not established that the short hair, not worn in dreadlocks, was an inherent requirement of their jobs. A policy is not justified if it restricts the practice of religious belief – and by necessary extension, a cultural belief that does not affect an employee’s ability to perform his duties, nor jeopardises the safety of the public or other employees, nor causes any undue hardship to the employer in a practical sense.”


Written by Magate Phala, who specialises in Labour Law, and writes in his private capacity. For more information, kindly contact Magate Phala at







]]> (Fanie) Most Recent Publications Mon, 22 May 2017 07:40:56 +0000