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Inquiry by an arbitrator in circumstances of an alleged protected disclosure. The introduction of section188A(11) of the Labour Relations Act The amendments to the Labour Relations Act (LRA) and other key employment legislation in 2015 resulted in key changes to the way employers traditionally regulated employment and the manner in which employers are expected to interact with their employees. One such amendment was the amendments to section 188A of the LRA. This section previously entitled "ag...
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The Labour Court was faced with an interesting question in the matter of Shoprite Checkers (Pty) Ltd v Samka & Others (2018) 9 BLLR 922 (LC). The Facts: Ms Samka was employed by Shoprite Checkers as a part-time cashier. She alleged that was particularly targeted, bullied and victimised by supervisors and managers because she had raised a specific grievance with regards to the racist practices by her employer. Further, an incident occurred between her and a customer. This incident led t...
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In this case, the employees were retrenched following Telkom’s “Fit for the Future” business restructuring exercise. The latter commenced in 2014 in response to declining revenues, market share and profitability.  Four trade unions were consulted between April 2014 and September 2014 regarding the three phases which were used to fill positions in the new organisational structure and the criteria which were to be used in appointments. Employees were placed without interviews and a strict cri...
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On 8 February 2021, two significant developments took place in the employment law arena. New earnings threshold First, the so-called “earnings threshold” has been increased for the first time since July 2014. The increase in the threshold will mean that from 1 March 2021, some employees who earn more than ZAR205 433.30 but less than ZAR211 596 per year may be entitled to additional protections that they were not previously enjoyed, such as payment for overtime, compulsory breaks and rest pe...
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In August 2012, members of the National Union of Metalworkers of South Africa (“NUMSA”) engaged in a protected strike. During the strike, various acts of violence are alleged to have occurred, resulting in damage to property owned by the respondents and its employees. The employer subsequently dismissed the striking employees pursuant to their alleged misconduct during the strike, and on the basis of derivative misconduct. Challenging the fairness of the dismissals, NUMSA referred a mutual i...
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In the recent judgment of Gold One Limited v Madalani and Others [2020], the Labour Court confirmed that intolerability is a high threshold in constructive dismissal matters. The Court held that, “Intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions”. Facts In this matter, the employee was employed by Gold One on 1 January 2013 and held the position of a Contract Manager at Constantia Park, until she was tra...
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In the case of Amalungelo Workers ‘Union and Others vs Philip Morris South Africa (Pty) Limited and Another [2019] ZACC 45 (CC), the Union and 75 of its members claimed their employer Philip Morris South Africa (Pty) Ltd and Leonard Dingler (Pty) Ltd, have in contravention of section 34 of the Basic Conditions of Employment Act (“BCEA”), deducted tax in respect of company cars from their salaries. Based on this allegation, the Union instituted proceedings in the Labour Court for an order com...
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27

Principle of majoritarianism

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A fundamental pitfall of majoritarianism is the possibility that the rights of the minority could be infringed pursuant to the will of the majority. In the matter of Association of Mineworkers and Construction Union and Others v Royal Bafokeng Platinum Limited and Others, this possibility was illustrated, when a group of employees arrived at work only to be told that they had been retrenched, without being engaged. AMCU referred the matter to LAC challenging the constitutionality of s189(1)(a)...
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14

Business Rescue Proceedings

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Can a business rescue practitioner commence with retrenchment proceedings prior to the adoption of a business rescue plan? It has always been within the employer’s discretion as to whether a retrenchment is being contemplated. This position has now changed. On 7 May 2020, the LC in Johannesburg handed down a judgement, wherein the National Union of Metalworkers of South Africa (NUMSA) sought an order declaring SAA’s notice in terms of section 189(3) of the LRA unlawful and invalid on the bas...
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24

Signing of referral forms

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Employees wanting to pursue cases for unfair dismissal in either the CCMA or various Bargaining Councils typically kick-start the process by completing and signing the requisite dispute referral forms. While this process has been simplified for the purposes of a quick and easy dispute referral, it is not uncommon for employees to enlist the help of attorneys. Often attorneys will sign dispute referral forms on behalf of expectant employees. However, doing so may be tantamount to signing the pro...
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