Comment: An update of recent labour law developments from South African courts 2021

• Pages: 754-793
• Author: Van Staden, M.J.
• Date: 20 September 2021
• DOI: https://doi.org/10.47348/TSAR/2021/i4a6
• Published date: 20 September 2021
• Citation: 2021 TSAR 754

https://doi.org/10.47348/TSAR/2021/i4a6

TSAR 2021 . 4 [ISSN 0257 – 7747]

754

Aantekening

AN UPDATE OF RECENT LABOUR LAW DEVELOPMENTS FROM

SOUTH AFRICAN COURTS 2021

1 Introduction

2 Collect ive bargaini ng

3 Covid-19

4 Unfair dismissals

5 Compensation for occupational injur ies and diseases

6 Public service employment

7 Restraint of trade ag reements

8 Dispute resolution

9 Vicarious liability

10 Jurisdiction

11 Prescription

12 Unfair discrim ination

13 Temporary employment service

14 Business rescue proceedi ngs

1 Introduction

This contribution summarises and addresses recent South African labour law

cases from June 2020 to May 2021. It focuses on a number of noteworthy decisions

handed down by South African courts on a range of labour law matters. The cases

addressed here were chosen because they established new standards, greatly

expanded on exi sting ones, or established new legal tests. These judg ments have a

notable effect on labour law and the employment relationsh ip in particular. They are

anticipated t o be particula rly inuential in future cas es. In this period, it has also

become necessary for the courts to deal with a number of cases involving Covid-

19-related facts.

2Collective bargaining

2.1 Dismissal for participation in strike action

In Pailpac (Pty) Ltd v De Beer NO the labour appeal cour t was tasked to consider if the

dismissal of employees for carry ing sticks during a protected s trike in contravention

of a picketing policy was substantively fair ((DA 12/2018) 2021 ZALAC 3 (1 March

2021)). These employees carried weapons such as stick s, PVC rods, sjamboks and golf

clubs. This behaviour was contr ary to the agreed upon picketing policy (pa r 2). The

employees were dismissed. The dismissed employees referred an unfair dismissal

dispute to the relevant bargain ing council. The arbitrator found the dismis sals to be

substantively unfair and reinstated the dismissed employees retrospectively to the

date of their dismissal. T he arbitrator found that it was not fair to hold the employees

to a ru le which they did not know existed (par 3). The labour c ourt agreed (par 4),

and the employer challenged the ndings i n the labour appeal court.

The primary issue for determination was whether the employees knew or could

reasonably have been expected t o be aware of the rule (par 6). The court conclude d

that it was clear that the dismissed employees knew or could reasonably have been

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expected to know that a bre ach of the rule could result in thei r dismissal (par 30).

Wielding or brandishing of dangerous weapons would necessarily include the

carry ing or displaying of weapons in a manner th at is aimed at sending out a message

that is, at the very least, threatening (par 26). The visible carrying or wielding of

prohibited weapons at the picket was clearly aimed at creat ing or fostering a hostile

and intimidatory atmosphere (par 29). Any reasonable employee would know that

bringing a dangerous weapon to work would not be tolerated (par 30). The court

therefore concluded that the sanction of dism issal was fair and appropriate.

It is not necessary that the employee was actually aware of the rule. The

employer must only prove that the employee could reasonably be expected to

have been aware of the rule (item 7 of the Code of Good Practice: Dismissal). It is

enough that the employee ought to have known that the conduct was prohibited.

Irrespective of whether or not the employees in question were actually aware of

the picketing rules, employees should re asonably be expected not to i ntimidate

other workers, the employer or members of the public. Intimid ation can be effected

by deed as well as words (National S ugar Rening & Allied Industries Union obo

Mngomezulu and Tongaat Hulett Sugar 2016 37 ILJ 2441 (BCA)). The employees

were not dismissed for part icipating in the strike (such a dismissal would have been

automatically unfair); instead they were dismissed for their misconduct during the

strike.

2.2 Guidelines for voting system of a union

In Association of Mineworkers and Constructio n Union v Minister of Mineral

Resources and Energy the Gauteng labour court in Johannesburg was tasked to

consider if the minister of employment and labour is empowered to set mandatory

requirements to determine if a trade union is a genuine trade union and for the

voting system to be used by the u nion (2020 41 ILJ 1705 (LC)). Section 95(8) of the

Labour Relations Act 66 of 1995 (the act) provides that the minister of employment

and labour (the minister) may issue guidelines to determine whether a union

applying to become registered as such is a genuine trade union and for the voting

system of the union. The minister issued such guidelines (GN 1397, GG 42121 (9-

12-2018)), and the Association of Mine Workers and Construction Union (AMCU)

took issue especially with t he guidelines pertaini ng to the voting system of a union.

AMCU approached the high cou rt seeking an order that the guideli nes be reviewed

and set aside in terms of the provisions of the Promotion of Administrative Justice

Act 3 of 2000, or that they be declared inconsistent with the principle of legality

enshrined in section 1(c) of the constitution. The parties disagreed whether the

minister performed a public function that falls within the ambit of Act 3 of 2000.

Several of the guidelines issued by the minister were couched in mandatory terms,

such as: “Reasonable notice must be given to members of a ballot...”; “The notice

must specify the ti me and place of the ballot”; “The question that is the subject of the

ballot must be clearly phrased and must be consistent with the ter ms of the dispute

referral” (par 35; par 9 of the guidelines).

The court held that the m inister performed a public f unction in terms of legislation

and the decision to issue the guidelines fell within the ambit of an administrative

action as de ned by Act 3 of 2000 (pa r 13). The guidelines, based on their content

and specically the use of the word “must”, are peremptory and prescribe the

manner in which a trade union should conduct a ballot of members before calling

for a strike or lock-out (par 38). It is imperative for the minist er to have acted within

the powers granted by the enabling legislation (par 33). Section 95(8) of the act

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provides that guidelines may be issued by the ministe r for the system of voting and

the guidelines are therefore beyond the powers of the minister. For this reason the

guidelines were set aside by the cou rt.

It is submitted that the judgment is incorrect. The court followed a dogmatic

and literalist interpretation, and it is clear from the judgment that the court based

its conclusion that the guidelines are peremptory solely on the use of the word

“must”. This is incorrect. The court wholly ignored the other elements of the textual

environment such as context, histor y and values. On a broad purposive reading – to

provide unions merely with gu idelines– the court could have come to the conclusion

that the purpose of the provisions was only to serve as guidelines. The court was

correct t o nd that the t ext of the provision is im portant, but inter pretation cannot

end there. The interpretive approach adopted by the court is out of line with the

dominant a pproach to the inte rpretation of law t exts adopted by the constitutional

court (see African Christ ian Democratic Party v Electoral Commission 2006 3 SA

305 (CC); Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd

2007 6 SA 199 (CC); Devenish “African Christian Democratic Party v Electoral

Commission: the new methodology and theory of statutory interpretation in South

Africa” 2006 SALJ 399; Le Roux “D irectory provisions, section 39(2) of the

constitution and the ontology of stat utory law” 2006 SA Publiekreg/Public Law 38 2;

Devenish “Department of Land Affairs v Goedgelegen Tropical Fruits – a triumph

for teleological interpret ation, an unqualied contex tual methodology and the

jurisprude nce of ubuntu” 2008 SALJ 231). The great bulk of pre-c onstitutional cases

on matters of compliance were decided on rules such as the following: a word or

words with an imperative or afrm ative character indicate a peremptory provision

(eg “shall” or “must”) (Messenger of the Magistrate’s Court, Durban v Pillay 1952

3 SA 678 (A)), permissive words indicate a discretion and a re directory (eg “may” or

“can”) (Amalgama ted Packaging Industries Ltd v Hutt 1975 4 SA 943 (A)), words in

negative form are peremptor y, positive language is director y (R v Sopete 1950 3 SA

769 (E)) , exible or va gue ter ms are dir ector y (Leibbrandt v South African Railwa ys

1941 AD 9), and so on. Due to the shift in interpretive approach by the judiciary,

which favours extra-textual factors over textual elements, Du Plessis has questioned

the relevance of this distinct ion:

“It may be that the major ity judgment of the Const itutional Court in African Christian Democratic

Party ha s dealt the distinctio n between peremptor y and director y provisions a blow, since the court

raised the question whether a provision can be ever so peremptory that eo nomine compliance

with it has to be prefe rred to realising its pur pose, and the court itself, i n point of fact, answered

this question i n the negative. The Supreme Court of Appeal previously also voiced rejection of a

categorical distinction between peremptory and directory provisions ... and the ACDP case thus

actually conr med an alrea dy exist ing move away from s uch a distinctio n” (“Inter pretation of

the bill of rights” in Woolman, Rou x and Bishop (eds) Constitutional L aw of South Africa (2014 )

2C-131).

In nding t he guidelines to be invalid, t he court has also caused a lacuna that may

well be problemat ic in practice.

2.3 Collective agreements

In Public Servants Association v Minister of Public Service the labour appeal

court was tasked with considering if the enforcement of a previously agreed upon

collective agreement was unlawful (2021 3 BLLR 255 (LAC)). In this case, the

government through the ofce s of the minister of public service and adm inistration

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