Courtesy of Saflii it is possible to provide free links to seven recent judgments of the Labour Appeal Court, including the summaries provided in the judgments themselves.   Of particular interest will be the judgments of Murphy AJA, concerning the infringement of protections relating to the right of freedom of association, and Davis JA, concerning the failure of a bargaining council to prove that the ‘corporate veil’ should be pierced after the restructuring of various businesses by an enterprising entrepreneur in the furniture industry in KZN.

Grootboom v National Prosecuting Authority (LAC) 21.09.2012 per Tlaletsi JA [Davis JA and Hlophe AJA concurred].

Relevant sections: LRA s 158(1)(h) and Public Service Act s 17(5)(a)(i)(b)

Disallowed public prosecutor’s appeal against Labour Court judgment and upheld dismissal related to insubordination.

Safcor Freight (Pty) Ltd t/a Safcor Panalpina v SAFDU (LAC) 17.09.2012 per Murphy AJA [Mlambo JP and Mocumie AJA concurred].

Relevant sections: LRA s 5(2)(c)(i) & 5(3)

Disallowed appeal but varied and substituted fresh order of  Labour Court– Bargaining Power – Differentiation in Wage Increase – Whether the employer has a right to bargain with employees who are not members of a bargaining unit represented by a recognised trade union leading to differentiation in wage increase – Whether the appellant through its conduct infringed the protections accorded by the right to freedom of association enshrined in Chapter II of the LRA. –

Held that the employer’s conduct led to the bargaining unit employees being prejudiced/discriminated against because of their membership of the union – Remuneration increase declared to be in contravention of section 5(2)(c)(i) and section 5(3) of the Labour Relations Act 66 of 1995

SAFA (South African Football Association) v Mangope (LAC) 7.09.2012 per Murphy AJA [Waglay DJP & Tlaletsi JA concurred].

Relevant sections: BCEA s 77(3) & s 77A(e) and common law rights

Allowed appeal to the limited extent.  Substituted order as follows:

‘1.        The decision of the respondent [SAFA] to terminate the applicant’s [Mangope] contract on 23 November 2009 is declared to be in breach of contract and unlawful.

2.         The respondent [SAFA] is ordered to pay the applicant’s damages in the amount of R669 903’.

Khumalo v MEC for Education: Kwazulu-Natal (LAC) 29.08.2012 per Zondi AJA [Jappie JA & Ndlovu JA concurred].

Issue: lawful and reasonable promotion and appointment

Disallowed appeal – Labour Court judgment (6 July 2010) – Court’s powers on review – Setting aside of illegal appointments where long period had elapsed between appointments and review – Court balancing interests of individuals with those of justice and the interests of other applicants for position – Appointments were clearly unlawful – Appointments set aside

Super Group Supply Chain Partners v Dlamini (LAC) 29.08.2012 per Tlaletsi JA [Ndlovu JA and Murphy AJA concurred].

Relevant sections: LRA s 189(7), 189A, s 189A(19), s 191(5)(b)(ii) & s 193

Disallowed appeal – Dismissal – For operational requirements – Restructuring process in which workforce reduced from 700 to 100 employees – Open competition process adopted as LIFO would result in too many applicants (300 to 400) competing for the remaining posts – Predictive index survey required to be completed by applicants for positions and these selected by computer

Bargaining Council for the Furniture Manufacturing Industry, Kwazulu-Natal v UKD Marketing CC (LAC) 20.08.2012 per Davis JA [Waglay DJP and Jappie JA concurred]

Issues: Requirement to register with bargaining council and ‘piercing corporate veil’

Disallowed appeal – Employer – Registration of with bargaining council – Employer restructuring business by converting employees into individual manufacturing enterprises – Enterprises registered for tax and VAT and paid contributions in respect of their employees – Court holding that original employer not an employer any longer and had no financial interest in businesses of erstwhile employees.

Gardner v Central University of Technology: Free State (LAC) 25.07.2012 per Ndlovu JA [Waglay DJP & Molemela AJA concurred].

Relevant sections: LRA s 158(1)(h) &189; BCEA s 41, 77 ; PAJA s 3, 6, 8(1)(c)(ii)(bb)

Disallowed appeal from judgment of Labour Court (Fulton AJ) – Appellants formerly employed by the respondent university (the CUT) in executive management positions. Upon retrenchment appellants sought to have their severance packages calculated on the basis of a controversial retrenchment policy that was allegedly approved by the former vice-chancellor by virtue of the power delegated to him by the Council. The policy was challenged by the CUT on various grounds. The defined issues included:

  • Whether the retrenchment policy constituted integral part of CUT’s governance functions, exclusively assigned to Council by the Act.
  • Delegation of (discretionary) power – Concept & Restrictive Interpretation thereof.
  • Factual disputes in final relief applications –

Principle restated.

Dismissal – For operational reasons – Severance package – Whether employer could use calculation provided for by Basic Conditions of Employment Act or if it had to apply policy allegedly adopted by principal – Court finding on the facts that existence of policy not proven and that in any event principal not authorised to make such policy.