SA Broadcasting Corporation Ltd v CCMA (Bredenkamp) (GF 8117) [Waglay ADJP, 18.11.2009]
[Unreported case JA 36/07 (LAC)Disallowed appeal against Labour Court judgment refusing an application for condonation & review of a ruling by the CCMA – dispute involved alleged unfair labour practice concerning wage discrimination & promotion – alleged to have started in 1998 but ongoing dispute – held that each time an employer pays “one of its employees more than the other he is evincing continued discrimination”.
Aviation Union of SA (AUSA) v SAA (Pty) Ltd (GF 8063) [Davis JA et Zondo JP, 9.10.2009]
[2010] 1 BLLR 14; [2009] JOL 24395 (LAC)
Allowed appeal from Basson [AC] J (GF 6799) – transfer of part of business as a going concern – “second generation” – not misnomer – LRA sec 197 applicable – purposive interpretation required.
Thompson v National Health Laboratory Service (GF 8043) [Khampepe ADJP, 18.09.2009]
[2009] JOL 24319 (LAC)
Disallowed appeal from LC – upheld judgment that appellant had failed to prove an employment relationship – in any event late filing of record not condoned – total disregard for rules – LAC Rule 5(6) – application for condonation also defective.
Screenex Wire Weaving Manufacturing (Pty) Ltd v Ngema (GF 8042) [Zondo JP, 2.09.2009]
[2010] 1 BLLR 39 (LAC)
Disallowed appeal from Hendricks AJ (LC) – upheld judgment that termination of employment based on operational requirements substantively & procedurally unfair – unfair to use selection criteria based on FIFO (first in, first out) – LRA s189(7)(a) & (b) requires fair & objective criteria if not agreed.
Seaward v Securicor SA (Pty) Ltd (GF 7972) [Zondo JP & Patel JA, 28.08.2009]
[2009] JOL 24166 (LAC)
Allowed appeal from Pillay J – overturned order – automatically unfair reason to terminate related to employee exercising a right or participating in proceedings – disciplinary enquiry – LRA s187(1)(d) rw s5 – awarded compensation – 24 months remuneration – onus of proof & evidential burden considered by Patel JA.
New Way Motor & Diesel Engineering (Pty) Ltd v Marsland (GF 7982) [Davis JA, 13.08.2009]
[2009] 12 BLLR 1181; [2009] JOL 24187 (LAC)
Disallowed appeal from Stein AJ (see GF 7276) – constructive dismissal & automatically unfair – LRA s186(1)(e) – nervous breakdown – subjected to sustained vilification, humiliation & insults – discrimination – mental condition – LRA s187(1)(f) – total award 24 months pay plus leave pay of R18,720 – BCEA s10 discussed and award of overtime pay reduced (Zondo JP dissenting re overtime pay as no proof of authorisation to work overtime).
Seardel Group Trading (Pty) Ltd t/a CUM v SACTWU (GF 8036) [Zondo JP, 16.07.2009]
[2009] 11 BLLR 1051; [2009] JOL 24284 (LAC)
Allowed appeal in part from LC – termination of employment substantively unfair & reinstatement order complied with by employer – issue in dispute related to extent of retrospective effect of order – LRA s193 – discretion discussed – period reduced to 3 months from 12 months.
Hendor Steel Supplies v NUMSA (GF 7849) [Davis JA, 19.06.2009]
(2009) 30 ILJ 2376; [2009] JOL 23781 (LAC)
Disallowed appeal from LC (see GF 6533) – upheld final order of reinstatement – unfair reason to terminate employment related to unprotected strike action – LRA s68(5) – genuine grievance related to racist behaviour of supervisor – employees believed strike action was protected.
Minister of Justice & Constitutional Development v Tshishonga (GF 7811) [Davis JA, 2.06.2009]
[2009] 9 BLLR 862; (2009) 30 ILJ 1799; [2009] JOL 23712 (LAC)
Allowed appeal in part – award of 12 months remuneration as compensation reduced to R277,000 – PDA ss 3 & 4 & LRA s 194(4) considered – compensation must be “just and equitable” – 12 months remuneration only provides a cap or guillotine – misdirection to use remuneration as basis for calculation – distinguish patrimonial & non-patrimonial damages – R177,000 patrimonial & R100,000 as solatium – indignity suffered & other factors.
Samancor Manganese (Pty) Ltd v CCMA (GF 7848) [Khampepe ADJP, 18.05.2009]
[2009] JOL 23780 (LAC)
Allowed appeal from LC – overturned judgment & reinstated arbitral award – fair procedure & fair reason to terminate related to medical incapacity – employee injured on duty – joint committee failing to find suitable alternative – employee compensated for injury.
Equity Aviation Services (Pty) Ltd v SATAWU (GF 7847) [Khampepe ADJP & Davis JA, 14.05.2009]
[2009] 10 BLLR 933, (2009) 30 ILJ 1997 (LAC)
Disallowed appeal from LC (GF 6216) – unfair reason to termination employment related to protected strike – automatically unfair dismissals – non-members entitled to rely on strike notice of union members – reinstatement granted – compensation still to be determined.
City of Cape Town v SAMWU obo Jacobs (GF 7829) [Tlaletsi AJA, 8.05.2009]
[2009] 9 BLLR 882; (2009) 30 ILJ 1983; [2009] JOL 23709 (LAC)
Allowed appeal from LC – set aside review and upheld arbitral award – alleged unfair labour practice relating to promotion – BC lacked jurisdiction as applicant not regarded as employee – LRA s186(2)(a) – Sidumo review test inapplicable as employee failed to prove necessary jurisdictional facts – transfer of business took place but “employee” placed in “holding” position.
MEC, Dept of Education, ECP v Gqebe (GF 7828) [Khampepe ADJP, 8.05.2009]
[2009] 9 BLLR 896; (2009) 30 ILJ 2388; [2009] JOL 23717/23883 (LAC)
Allowed appeal from LC – set aside order of LC as incompetent – alternative relief granted when considering making an award an order of court – original issue in dispute termination of employment related to conduct – failure to complete leave forms & reinstatement awarded -joinder should have been required before the LC as well.
SA Metal & Machinery Co (Pty) Ltd v Gamaroff (GF 8037) [Leeuw AJA, 8.05.2009]
Unreported case CA 4/07 (LAC)
Allowed appeal from LC – set aside reinstatement order – alleged unfair discrimination based on age – after reaching 65 employer requested employee to continue working – after 2 further years took 2 months sick leave – retired by employer – held that provident fund rules were mandatory & set retirement age at 65 – employee bound thereby & termination not unfair.
Dr DC Kemp t/a Centralmed v Dr Rawlins (GF 7912) [Zondo JP & Willis JA dissenting, 26.03.2009]
[2009] 11 BLLR 1027; (2009) 30 ILJ Nov; [2009] JOL 23972/3 & 24063 (LAC)
Allowed appeal from LC (Gush AJ) – set aside compensation order of 12 months pay (R120,000) – LRA s193 & 194 – nature of discretion discussed & incorrectly exercised – Willis JA dissented & would have reduced compensation to 6 months – employer terminated services of medical doctor a few day before birth of child purportedly based on operational requirements of satellite medical practice – employer’s offer of reinstatement & some compensation rejected – alleged automatically unfair dismissal referred to LC – held that reason unrelated to pregnancy but totally unfair.
Business & Design Software (Pty) Ltd v Van der Velde (GF 7714) [Zondo JP, 10.03.2009]
[2009] 8 BLLR 746; (2009) 30 ILJ 1277; [2009] JOL 23597 (LAC)
Disallowed appeal – upheld LC decision (GF 6335) – automatically unfair termination related to transfer – LRA s187(1)(g).
Khanyile v Billiton Aluminium SA Ltd (GF 7918) [Zondo JP, 24.02.2009]
[2009] JOL 24074 (LAC)
Allowed appeal from LC (Steenkamp AJ) – set aside compensation order of 12 months pay – restored reinstatement award of CCMA with retrospective effect to 2.08.2001 & payment of R436,000 compensation – unfair reason to terminate related to alleged disclosure of confidential information in breach of company policy.