Important Labour Appeal Court Decisions – 2024

Important Labour Appeal Court (LAC) Decisions Over the 2024 Session Period.

We have looked at a selection of LAC decisions worth noting over the 2024 session period to gain a snapshot of the Appeal Court’s approaches towards various Employment Law principles and related concepts. By “snapshot” we mean limiting our highlights to “key takeaway points”.

We have chosen to focus only on appeal court cases, because of their binding nature, rather than sifting through Labour Court decisions, of which there are many. 

Please note that what follows isn’t an exhaustive summary of the appeal cases, but selectively highlighted – to get a more detailed understanding of each case, we recommend that you read the entire Judgment delivered in each case (see the case citations shown below). We have therefore merely tried to extract certain significant points of law and/or best practice principles, without going into the whole explanation of the related factual matrixes and background to each appeal case. 

These cases are also not dealt with in chronological order:

  1. Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA90/22) [2024] ZALAC 29; [2024] 8 BLLR 881 (LAC); (2024) 45 ILJ 2270 (LAC) (13 June 2024) – Key Takeaway Points:
  • There has to be credible evidence that a “medical certificate” is either fake, in the sense that it either isn’t an authentically issued medical certificate or it contains false information.
  • A Review Application brought against a CCMA Arbitration Award cannot succeed by way of Appeal principles, which open up a complete reassessment of the decision-making process, but is restricted to only checking if the Arbitrator’s decision was reached within a band of reasonableness, based on the evidence placed before the arbitrator – even if that decision may not necessarily align with how other decision-makers may have decided the outcome. This case reaffirms the entrenched approach towards reviewing CCMA Awards.
  1. Sibanye Rustenburg Platinum Mine v Association of Mineworkers and Construction Union obo Sono and Others (JA32/2022) [2024] ZALAC 23; (2024) 45 ILJ 1623 (LAC) (2 May 2024) – Key Takeaway Points:
  • The Court confirmed a long-standing practice principle that parties are bound by an agreement reached in pre-trial minute and it is not open to the courts to adjudicate on the issues that fall outside the scope of issues agreed upon by the parties.
  • By contrast to the Woolworths case (see above), the facts showed that the employees had submitted fraudulent sick notes and received pay for days they did not work as a result. Their sick notes were purportedly issued by Platinum Health but stamped at the RPM Hospital. The investigation revealed that the employees did not visit Platinum Health as recorded in the medical certificates. The certificates were signed by the same unknown person without her/his initials or surname and none of them had a serial number. The employees submitted the certificates with one motive, namely, to deceive the [employer] in circumstances in which the [employer] has a zero-tolerance approach in as far as dishonesty and fraud. The misconduct committed by the employees was of a serious nature and was grossly dishonest. Such conduct patently undermined the trust relationship between the parties.
  1. NUMSA obo Mokase v Nissan South Africa Ltd and Others (JA46/23) [2024] ZALAC 16; [2024] 9 BLLR 967 (LAC) (23 April 2024) – Key Takeaway Points:
  • A commissioner is entitled in terms of section 138(1) of the Labour Relations Act (LRA) to determine the manner in which an arbitration is to be conducted so as to determine the dispute fairly and quickly, with the minimum of legal formalities; and, in terms of section 138(2), to exercise a discretion as to the form of the proceedings during which evidence may be adduced. However, such permission not to rely on legal formalities does not mean that evidence may be treated by the commissioner in a manner which is unfair to the parties to such an extent that it leads to an outcome that is unreasonable.
  • Regarding the leading of hearsay evidence at CCMA arbitration proceedings, the LAC confirmed that  commissioners are obliged to apply the provisions of Section 3 of the LEAA at the moment that hearsay evidence is sought to be introduced, so that both parties have an opportunity to make submissions on its admissibility and to ensure a fair process and outcome – a failure to do so by a commissioner creates a risk of an unreasonable outcome.
  • Despite recognition that legal formalities may be kept to a minimum during arbitration proceedings, evidence adduced must be appropriately considered by a commissioner and cannot simply be ignored. 
  • In the approach to and treatment of the evidence, the commissioner was required to take cognisance of the fact that circumstantial evidence had been advanced, which requires that any inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn. Secondly, the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.
  • Regarding the use of and reliance on polygraph testing, the Court affirmed the decision of DHL Supply Chain (Pty) Ltd v De Beer NO and others, agreeing with the commissioner’s disregard of the results of such tests, since no expert evidence had been put up pertaining to the manner in which such polygraph tests had been conducted or their results analysed.
  1. National Union of Food Beverage Wine Spirits and Allied Workers v Coca Cola Beverages South Africa (Pty) Ltd (JA 130/22) [2024] ZALAC 26; (2024) 45 ILJ 1813 (LAC); [2024] 9 BLLR 948 (LAC) (27 May 2024) – Key Takeaway Points:
  • Using “dismissal” as a weapon to force employees to accept a lower wage or lesser terms of employment isn’t the same as offering staff alternative positions to avoid being retrenched and then proceeding to retrench staff who reject those offers of alternative employment.
  • Ex-employees who allege that their former employer contravened Section 187 (1) (c) of the LRA are obliged to “…at least lead evidence that establishes a credible possibility that the true reason for dismissal is one that is listed as an automatically unfair reason.” 
  • Therefore, there has to be evidence of a credible possibility that the true reason for dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest – rather than a reason based on the employer’s (genuine) operational requirements.
  • When assessing the substantive fairness of an employer’s decision to retrench, “…while employers have the prerogative to restructure their operations to maximise profits and operational efficiency, the courts do not have to accept the employer’s proffered rationale at face value, nor do the courts defer to employers.”
  • However – “…the Court’s function is not to decide whether the employer’s decision was the best decision in the circumstances; rather, the Court’s enquiry is limited to whether it was a rational commercial or operational decision, properly taking into account what emerged during the consultation process.”
  1. Fischer Tube Technik SA v Bayene and Another (JA100/23) [2024] ZALAC 25; (2024) 45 ILJ 1804 (LAC); [2024] 9 BLLR 917 (LAC) (21 May 2024) – Key Takeaway Points:
  • The question of bumping ordinarily arises when LIFO is applied as a selection criterion.
  • The concept of bumping, or what has been more elegantly termed ‘transferred redundancy’, contemplates the dismissal of an employee not initially selected for retrenchment to make way for another employee, usually an employee with longer service, whose position has become redundant.
  • Bumping assumes two forms – horizontal bumping and vertical bumping. Horizontal bumping occurs when an employee in a redundant post displaces an employee with shorter service at the same or a similar level. Vertical bumping occurs when an employee in a redundant post replaces an employee with shorter service engaged in a lower position in the occupational hierarchy.  As this Court observed in Karachi, horizontal bumping assumes similar status, conditions of service and pay, while vertical bumping assumes a diminution in status, conditions and service and pay.
  • In South African law, bumping forms an integral part of the application of LIFO.  While there is no absolute obligation on an employer applying LIFO to bump, it is a matter that ought properly to be canvassed during the consultation process when LIFO is agreed. Indeed, it is not open to an employer to contend that employees cannot raise the issue of bumping only because they failed to do so during the consultation process.
  • The Court confirmed that an employer applying LIFO must raise and discuss the question of bumping with consulting parties during the consultation process. In the absence of any agreement on the issue, the employer must be in a position to justify its decision not to bump, or to bump either horizontally or vertically, within the selection pool that it has defined. Ultimately, any requirement to bump is a matter of fairness, both to the employer (who faces the disruptive consequences of bumping), the employee selected for retrenchment (whose job security is at risk in the absence of bumping) and the displaced employee (whose job security is equally prejudiced on account of the application of bumping).
  1. Bata SA (Pty) Limited and Another v SACTWU obo Members and Others (DA4/2022) [2024] ZALAC 15; (2024) 45 ILJ 1541 (LAC); [2024] 8 BLLR 866 (LAC) (23 April 2024) – Key Takeaway Points:
  • The issue to be addressed was – whether s 198D [of the LRA] gives a commissioner of the CCMA the power to grant relief in instances where employees employed by TES refer a dispute in terms of s 198D on the basis of being treated less favourably than an employee of the client performing same or similar work without justification and whether the relief in terms of s 198D is also available to dismissed employees.
  • It is correct that a court cannot issue a declarator on the status of an employee no longer in the employ of the employer but this cannot be a bar against pronouncing on the status of the said employee at the time that the employee’s employment came to an end.
  • The Court confirmed that a dismissed employee is not barred from relief in terms of the LRA or the BCEA because the employment relationship has come to an end and similarly, it cannot be said that the dismissed employees cannot, because their previous employment fell within the context of s 198A, would not be able to approach the appropriate forum to seek relief.
  • This must then include the CCMA granting a declaratory award confirming the status of the employee as a deemed employee and as part of the declaratory order confirming, in cases such as those before the CCMA in this matter, that the employee has been subjected to differential treatment without justification in terms of section s 198D(2). On the basis of this determination, a deemed employee subjected to differential treatment can then refer an unfair labour practice dispute to the CCMA for determination. 
  1. Venter and Others v Twenty Four Motors CC ta Ford Ermelo (JA34/2024) [2024] ZALAC 32 (28 June 2024) – Key Takeaway Points:
  • Restraint of trade agreements are valid, binding, and enforceable unless their enforcement would be unreasonable.  In determining the reasonableness of a restraint of trade agreement, a court must make a value judgment keeping in mind the principles expressed through the maxim pacta servanda sunt [sanctity of contract] on the one hand, and a party’s interest in engaging freely in their chosen trade, occupation or profession, on the other.
  • As stated in Basson v Chilwan and Others, the test for determining the reasonableness of a restraint of trade agreement turns on the following: (a) whether one party has an interest that deserves protection after termination of the agreement; (b) whether that interest is threatened or being prejudiced by the other party; (c) if so, whether that interest weighs qualitatively and quantitatively against the interest of the other party not to be economically inactive and unproductive; and (d) whether there is an aspect of public policy having nothing to do with the relationship between the parties that requires that the restraint be maintained or rejected. A fifth consideration, identified in Reddy v Siemens Telecommunications (Pty) Ltd,  is whether the restraint goes further than necessary to protect that interest. This consideration has been found to correspond with s 36(1)(e) of the Constitution. It requires that it be considered whether less restrictive measures exist which can achieve the purpose of the limitation by determining whether the restraint or limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. 
  • It is trite that the party seeking to enforce a restraint of trade agreement must prove a breach of the contract, with the party seeking to avoid enforcement of the contract bearing the onus to demonstrate that the restraint is unenforceable because it is unreasonable
  • The party seeking to enforce a restraint of trade must establish an interest worthy of protection and that the other party is threatening that interest. The party resisting enforcement must prove that it would be unreasonable to do so.
  • A protectable interest in the context of a restraint of trade constitutes confidential information and trade secrets, trade connections, or both. The confidential information, whether information, know-how, technology or a method, must be objectively worthy of protection and have value in the sense that it concerns matters such as business opportunities, customer information, proposals, marketing, price or pricing arrangements, product specifications, know-how, technology or manufacturing details which are unique to the business and not generally available to third parties. It must have actual economic value to the party seeking to protect it, in circumstances in which the employee is obliged contractually to keep it confidential. The information must not be public knowledge, public property or be available in the public domain. To be confidential and therefore worthy of protection, it must be shown to be specific or unique to the respondent [employer], with economic value, and known only to a restricted number of people or a closed circle within its business while being capable of use or application within the same trade or industry.
  • To find that trade connections exist as an interest worthy of protection, the employee must be found to have had access to customers and customer relationships which could be used by the employee to induce customers to follow the employee to the new business. Whether the employee has the ability to exert this kind of influence, depends on the seniority, position and duties of the employee, the nature and extent of the employee’s contact with customers, and knowledge of the particular requirements of the customer in contrast to rival businesses
  • The facts advanced did not, however, prove that the respondent held a protectable interest in respect of its second-hand vehicle business. It proved no evidence of confidential information, trade secrets or trade connections held by the former employees that warranted protection. There was also no evidence advanced that repeat customers formed the backbone of the business, nor any dispute that all second-hand vehicle deals rely on the “book value” of a vehicle as a guide for determining its value. It was not proved that the appellants were aware of trade secrets or had trade connections, even the first appellant given his managerial role, that could be used by the employee to induce customers to follow the employee to the new business. Nothing proved that any of the appellants were in a position to exert influence on customers, on the basis of specific and unique knowledge held by them, to the prejudice of the respondent. Far from being unique to the respondent’s business, the information and connections it sought to protect were available widely in the industry. There was no evidence that relationships with repeat customers existed or that the appellants held unique access to customer relationships which could be used by the employee to induce customers to follow the employee to the new business. This was even more so in the case of the second appellant who was a trainee and not exposed to customers, with no confidential information to disclose to her new employer, and the third to fifth appellants who were vehicle salesmen.
  1. Sorrell v Petroplan Sub-Saharan Africa (Pty) Ltd (CA02/2023) [2024] ZALAC 48 (4 October 2024) – Key Takeaway Points:
  • The territorial application of the LRA is to be determined according to the locality of the undertaking for whom the appellant [employee] was contracted to provide services, and not the location of the undertaking of the respondent TES. The fact that section 198 of the LRA stipulates that the employee is employed by the TES and not by the client of the TES does not alter this conclusion.
  • Since the location of such undertaking was Mozambique, the Labour Court committed no error or misdirection in striking the matter from the roll.
  1. Johannesburg Road Agency v Makhari (JA146/21) [2024] ZALAC 47 (16 October 2024) – Key Takeaway Points:
  • The consideration of whether reinstatement, reemployment or compensation in the context of a finding of unfair dismissal is underpinned by fairness to both parties
  • In the Constitutional Court case of Booi v Amathole District Municipality and Others, the Constitutional Court, in dealing with the issue of reinstatement in that case under section 193 of the LRA held that:

‘It is plain from this Court’s jurisprudence that where a dismissal has been found to be substantively unfair, “reinstatement is the primary remedy” and, therefore, “[a] court or arbitrator must order the employer to reinstate or re-employ the employee unless one or more of the circumstances specified in section 193(2)(a) – (d) exist, in which case compensation may be ordered depending on the nature of the dismissal.”

  • The term “intolerable” implies a level of unbearability and must surely require more than the suggestion that the relationship is difficult, fraught or even sour. This high threshold gives effect to the purpose of the reinstatement injunction in section 193(2), which is to protect substantively unfairly dismissed employees by restoring the employment contract and putting them in the position they would have been in but for the unfair dismissal.
  • The employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability
  • The burden is on the employer to provide the reason and evidence why the primary remedy of reinstatement in an unfair dismissal should not apply. It is also important to note that the test for determining whether the remedy of reinstatement is appropriate is objective and not subjective 
  1. AJ Charnaud and Company v SACTWU obo Members and Others (DA 9/23) [2024] ZALAC 33; [2024] 10 BLLR 1016 (LAC); (2024) 45 ILJ 2257 (LAC) (17 July 2024) – Key Takeaway Points:
  • What the evidence suggests is that despite the arbitrator’s reference to ‘derivative misconduct’, the present case is not one that concerns derivative misconduct, at least not in the sense that term was employed in National Union of Metalworkers of SA on behalf of Nganezi and others v Dunlop Mixing and Technical Services (Pty) Ltd and others (Casual Workers Advice Office as amicus curiae), where employees were dismissed not for participating in the primary misconduct but for failing to disclose to the employer information regarding that misconduct. The charge brought against the employees in the present instance is one of direct participation in misconduct. The arbitrator’s award does not apply the principle of common purpose, at least not in the sense that the term and its application were discussed by the Constitutional Court in Marley Pipe. Put another way, the appellant does not rely on the employees’ presence at the scene and any failure to intervene or disassociate themselves with an act of misconduct to justify the employees’ dismissal. The appellant relies on the direct observation by its witnesses of participation in the act of holding the Charnauds captive in their vehicle and preventing other members of management and monthly-paid employees from leaving the premises. The references to Marley Pipe and Dunlop Mixing in the Labour Court’s judgment are thus red herrings.

Synopsis of LAC Cases – LD Essentials Podcast/Video (Divided into separate parts)

CH to record a discussion video/podcast that gives a more conversational overview of these appeal court cases – the idea is to make the above content (which can be dry and somewhat difficult to read and understand) more interesting and accessible to the public/target audiences, but the target followers would still be HR/IR Professionals in the ER market/sector/industry. 

These podcasts/videos would aim to:

  • Explain the Court’s thinking and attitude towards certain principles.
  • Clarify the meaning of the principles dealt with by the Court.
  • Give more context to the backdrop of these cases.
  • Touch on some of the history behind these cases.

  • Important Labour Appeal Court Decisions – 2024

    Important Labour Appeal Court (LAC) Decisions Over the 2024 Session Period.

    We have looked at a selection of LAC decisions worth noting over the 2024 session period to gain a snapshot of the Appeal Court’s approaches towards various Employment Law principles and related concepts. By “snapshot” we mean limiting our highlights to “key takeaway points”.

    We have chosen to focus only on appeal court cases, because of their binding nature, rather than sifting through Labour Court decisions, of which there are many. 

    Please note that what follows isn’t an exhaustive summary of the appeal cases, but selectively highlighted – to get a more detailed understanding of each case, we recommend that you read the entire Judgment delivered in each case (see the case citations shown below). We have therefore merely tried to extract certain significant points of law and/or best practice principles, without going into the whole explanation of the related factual matrixes and background to each appeal case. 

    These cases are also not dealt with in chronological order:

    1. Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA90/22) [2024] ZALAC 29; [2024] 8 BLLR 881 (LAC); (2024) 45 ILJ 2270 (LAC) (13 June 2024) – Key Takeaway Points:
    • There has to be credible evidence that a “medical certificate” is either fake, in the sense that it either isn’t an authentically issued medical certificate or it contains false information.
    • A Review Application brought against a CCMA Arbitration Award cannot succeed by way of Appeal principles, which open up a complete reassessment of the decision-making process, but is restricted to only checking if the Arbitrator’s decision was reached within a band of reasonableness, based on the evidence placed before the arbitrator – even if that decision may not necessarily align with how other decision-makers may have decided the outcome. This case reaffirms the entrenched approach towards reviewing CCMA Awards.
    1. Sibanye Rustenburg Platinum Mine v Association of Mineworkers and Construction Union obo Sono and Others (JA32/2022) [2024] ZALAC 23; (2024) 45 ILJ 1623 (LAC) (2 May 2024) – Key Takeaway Points:
    • The Court confirmed a long-standing practice principle that parties are bound by an agreement reached in pre-trial minute and it is not open to the courts to adjudicate on the issues that fall outside the scope of issues agreed upon by the parties.
    • By contrast to the Woolworths case (see above), the facts showed that the employees had submitted fraudulent sick notes and received pay for days they did not work as a result. Their sick notes were purportedly issued by Platinum Health but stamped at the RPM Hospital. The investigation revealed that the employees did not visit Platinum Health as recorded in the medical certificates. The certificates were signed by the same unknown person without her/his initials or surname and none of them had a serial number. The employees submitted the certificates with one motive, namely, to deceive the [employer] in circumstances in which the [employer] has a zero-tolerance approach in as far as dishonesty and fraud. The misconduct committed by the employees was of a serious nature and was grossly dishonest. Such conduct patently undermined the trust relationship between the parties.
    1. NUMSA obo Mokase v Nissan South Africa Ltd and Others (JA46/23) [2024] ZALAC 16; [2024] 9 BLLR 967 (LAC) (23 April 2024) – Key Takeaway Points:
    • A commissioner is entitled in terms of section 138(1) of the Labour Relations Act (LRA) to determine the manner in which an arbitration is to be conducted so as to determine the dispute fairly and quickly, with the minimum of legal formalities; and, in terms of section 138(2), to exercise a discretion as to the form of the proceedings during which evidence may be adduced. However, such permission not to rely on legal formalities does not mean that evidence may be treated by the commissioner in a manner which is unfair to the parties to such an extent that it leads to an outcome that is unreasonable.
    • Regarding the leading of hearsay evidence at CCMA arbitration proceedings, the LAC confirmed that  commissioners are obliged to apply the provisions of Section 3 of the LEAA at the moment that hearsay evidence is sought to be introduced, so that both parties have an opportunity to make submissions on its admissibility and to ensure a fair process and outcome – a failure to do so by a commissioner creates a risk of an unreasonable outcome.
    • Despite recognition that legal formalities may be kept to a minimum during arbitration proceedings, evidence adduced must be appropriately considered by a commissioner and cannot simply be ignored. 
    • In the approach to and treatment of the evidence, the commissioner was required to take cognisance of the fact that circumstantial evidence had been advanced, which requires that any inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn. Secondly, the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.
    • Regarding the use of and reliance on polygraph testing, the Court affirmed the decision of DHL Supply Chain (Pty) Ltd v De Beer NO and others, agreeing with the commissioner’s disregard of the results of such tests, since no expert evidence had been put up pertaining to the manner in which such polygraph tests had been conducted or their results analysed.
    1. National Union of Food Beverage Wine Spirits and Allied Workers v Coca Cola Beverages South Africa (Pty) Ltd (JA 130/22) [2024] ZALAC 26; (2024) 45 ILJ 1813 (LAC); [2024] 9 BLLR 948 (LAC) (27 May 2024) – Key Takeaway Points:
    • Using “dismissal” as a weapon to force employees to accept a lower wage or lesser terms of employment isn’t the same as offering staff alternative positions to avoid being retrenched and then proceeding to retrench staff who reject those offers of alternative employment.
    • Ex-employees who allege that their former employer contravened Section 187 (1) (c) of the LRA are obliged to “…at least lead evidence that establishes a credible possibility that the true reason for dismissal is one that is listed as an automatically unfair reason.” 
    • Therefore, there has to be evidence of a credible possibility that the true reason for dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest – rather than a reason based on the employer’s (genuine) operational requirements.
    • When assessing the substantive fairness of an employer’s decision to retrench, “…while employers have the prerogative to restructure their operations to maximise profits and operational efficiency, the courts do not have to accept the employer’s proffered rationale at face value, nor do the courts defer to employers.”
    • However – “…the Court’s function is not to decide whether the employer’s decision was the best decision in the circumstances; rather, the Court’s enquiry is limited to whether it was a rational commercial or operational decision, properly taking into account what emerged during the consultation process.”
    1. Fischer Tube Technik SA v Bayene and Another (JA100/23) [2024] ZALAC 25; (2024) 45 ILJ 1804 (LAC); [2024] 9 BLLR 917 (LAC) (21 May 2024) – Key Takeaway Points:
    • The question of bumping ordinarily arises when LIFO is applied as a selection criterion.
    • The concept of bumping, or what has been more elegantly termed ‘transferred redundancy’, contemplates the dismissal of an employee not initially selected for retrenchment to make way for another employee, usually an employee with longer service, whose position has become redundant.
    • Bumping assumes two forms – horizontal bumping and vertical bumping. Horizontal bumping occurs when an employee in a redundant post displaces an employee with shorter service at the same or a similar level. Vertical bumping occurs when an employee in a redundant post replaces an employee with shorter service engaged in a lower position in the occupational hierarchy.  As this Court observed in Karachi, horizontal bumping assumes similar status, conditions of service and pay, while vertical bumping assumes a diminution in status, conditions and service and pay.
    • In South African law, bumping forms an integral part of the application of LIFO.  While there is no absolute obligation on an employer applying LIFO to bump, it is a matter that ought properly to be canvassed during the consultation process when LIFO is agreed. Indeed, it is not open to an employer to contend that employees cannot raise the issue of bumping only because they failed to do so during the consultation process.
    • The Court confirmed that an employer applying LIFO must raise and discuss the question of bumping with consulting parties during the consultation process. In the absence of any agreement on the issue, the employer must be in a position to justify its decision not to bump, or to bump either horizontally or vertically, within the selection pool that it has defined. Ultimately, any requirement to bump is a matter of fairness, both to the employer (who faces the disruptive consequences of bumping), the employee selected for retrenchment (whose job security is at risk in the absence of bumping) and the displaced employee (whose job security is equally prejudiced on account of the application of bumping).
    1. Bata SA (Pty) Limited and Another v SACTWU obo Members and Others (DA4/2022) [2024] ZALAC 15; (2024) 45 ILJ 1541 (LAC); [2024] 8 BLLR 866 (LAC) (23 April 2024) – Key Takeaway Points:
    • The issue to be addressed was – whether s 198D [of the LRA] gives a commissioner of the CCMA the power to grant relief in instances where employees employed by TES refer a dispute in terms of s 198D on the basis of being treated less favourably than an employee of the client performing same or similar work without justification and whether the relief in terms of s 198D is also available to dismissed employees.
    • It is correct that a court cannot issue a declarator on the status of an employee no longer in the employ of the employer but this cannot be a bar against pronouncing on the status of the said employee at the time that the employee’s employment came to an end.
    • The Court confirmed that a dismissed employee is not barred from relief in terms of the LRA or the BCEA because the employment relationship has come to an end and similarly, it cannot be said that the dismissed employees cannot, because their previous employment fell within the context of s 198A, would not be able to approach the appropriate forum to seek relief.
    • This must then include the CCMA granting a declaratory award confirming the status of the employee as a deemed employee and as part of the declaratory order confirming, in cases such as those before the CCMA in this matter, that the employee has been subjected to differential treatment without justification in terms of section s 198D(2). On the basis of this determination, a deemed employee subjected to differential treatment can then refer an unfair labour practice dispute to the CCMA for determination. 
    1. Venter and Others v Twenty Four Motors CC ta Ford Ermelo (JA34/2024) [2024] ZALAC 32 (28 June 2024) – Key Takeaway Points:
    • Restraint of trade agreements are valid, binding, and enforceable unless their enforcement would be unreasonable.  In determining the reasonableness of a restraint of trade agreement, a court must make a value judgment keeping in mind the principles expressed through the maxim pacta servanda sunt [sanctity of contract] on the one hand, and a party’s interest in engaging freely in their chosen trade, occupation or profession, on the other.
    • As stated in Basson v Chilwan and Others, the test for determining the reasonableness of a restraint of trade agreement turns on the following: (a) whether one party has an interest that deserves protection after termination of the agreement; (b) whether that interest is threatened or being prejudiced by the other party; (c) if so, whether that interest weighs qualitatively and quantitatively against the interest of the other party not to be economically inactive and unproductive; and (d) whether there is an aspect of public policy having nothing to do with the relationship between the parties that requires that the restraint be maintained or rejected. A fifth consideration, identified in Reddy v Siemens Telecommunications (Pty) Ltd,  is whether the restraint goes further than necessary to protect that interest. This consideration has been found to correspond with s 36(1)(e) of the Constitution. It requires that it be considered whether less restrictive measures exist which can achieve the purpose of the limitation by determining whether the restraint or limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. 
    • It is trite that the party seeking to enforce a restraint of trade agreement must prove a breach of the contract, with the party seeking to avoid enforcement of the contract bearing the onus to demonstrate that the restraint is unenforceable because it is unreasonable
    • The party seeking to enforce a restraint of trade must establish an interest worthy of protection and that the other party is threatening that interest. The party resisting enforcement must prove that it would be unreasonable to do so.
    • A protectable interest in the context of a restraint of trade constitutes confidential information and trade secrets, trade connections, or both. The confidential information, whether information, know-how, technology or a method, must be objectively worthy of protection and have value in the sense that it concerns matters such as business opportunities, customer information, proposals, marketing, price or pricing arrangements, product specifications, know-how, technology or manufacturing details which are unique to the business and not generally available to third parties. It must have actual economic value to the party seeking to protect it, in circumstances in which the employee is obliged contractually to keep it confidential. The information must not be public knowledge, public property or be available in the public domain. To be confidential and therefore worthy of protection, it must be shown to be specific or unique to the respondent [employer], with economic value, and known only to a restricted number of people or a closed circle within its business while being capable of use or application within the same trade or industry.
    • To find that trade connections exist as an interest worthy of protection, the employee must be found to have had access to customers and customer relationships which could be used by the employee to induce customers to follow the employee to the new business. Whether the employee has the ability to exert this kind of influence, depends on the seniority, position and duties of the employee, the nature and extent of the employee’s contact with customers, and knowledge of the particular requirements of the customer in contrast to rival businesses
    • The facts advanced did not, however, prove that the respondent held a protectable interest in respect of its second-hand vehicle business. It proved no evidence of confidential information, trade secrets or trade connections held by the former employees that warranted protection. There was also no evidence advanced that repeat customers formed the backbone of the business, nor any dispute that all second-hand vehicle deals rely on the “book value” of a vehicle as a guide for determining its value. It was not proved that the appellants were aware of trade secrets or had trade connections, even the first appellant given his managerial role, that could be used by the employee to induce customers to follow the employee to the new business. Nothing proved that any of the appellants were in a position to exert influence on customers, on the basis of specific and unique knowledge held by them, to the prejudice of the respondent. Far from being unique to the respondent’s business, the information and connections it sought to protect were available widely in the industry. There was no evidence that relationships with repeat customers existed or that the appellants held unique access to customer relationships which could be used by the employee to induce customers to follow the employee to the new business. This was even more so in the case of the second appellant who was a trainee and not exposed to customers, with no confidential information to disclose to her new employer, and the third to fifth appellants who were vehicle salesmen.
    1. Sorrell v Petroplan Sub-Saharan Africa (Pty) Ltd (CA02/2023) [2024] ZALAC 48 (4 October 2024) – Key Takeaway Points:
    • The territorial application of the LRA is to be determined according to the locality of the undertaking for whom the appellant [employee] was contracted to provide services, and not the location of the undertaking of the respondent TES. The fact that section 198 of the LRA stipulates that the employee is employed by the TES and not by the client of the TES does not alter this conclusion.
    • Since the location of such undertaking was Mozambique, the Labour Court committed no error or misdirection in striking the matter from the roll.
    1. Johannesburg Road Agency v Makhari (JA146/21) [2024] ZALAC 47 (16 October 2024) – Key Takeaway Points:
    • The consideration of whether reinstatement, reemployment or compensation in the context of a finding of unfair dismissal is underpinned by fairness to both parties
    • In the Constitutional Court case of Booi v Amathole District Municipality and Others, the Constitutional Court, in dealing with the issue of reinstatement in that case under section 193 of the LRA held that:

    ‘It is plain from this Court’s jurisprudence that where a dismissal has been found to be substantively unfair, “reinstatement is the primary remedy” and, therefore, “[a] court or arbitrator must order the employer to reinstate or re-employ the employee unless one or more of the circumstances specified in section 193(2)(a) – (d) exist, in which case compensation may be ordered depending on the nature of the dismissal.”

    • The term “intolerable” implies a level of unbearability and must surely require more than the suggestion that the relationship is difficult, fraught or even sour. This high threshold gives effect to the purpose of the reinstatement injunction in section 193(2), which is to protect substantively unfairly dismissed employees by restoring the employment contract and putting them in the position they would have been in but for the unfair dismissal.
    • The employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability
    • The burden is on the employer to provide the reason and evidence why the primary remedy of reinstatement in an unfair dismissal should not apply. It is also important to note that the test for determining whether the remedy of reinstatement is appropriate is objective and not subjective 
    1. AJ Charnaud and Company v SACTWU obo Members and Others (DA 9/23) [2024] ZALAC 33; [2024] 10 BLLR 1016 (LAC); (2024) 45 ILJ 2257 (LAC) (17 July 2024) – Key Takeaway Points:
    • What the evidence suggests is that despite the arbitrator’s reference to ‘derivative misconduct’, the present case is not one that concerns derivative misconduct, at least not in the sense that term was employed in National Union of Metalworkers of SA on behalf of Nganezi and others v Dunlop Mixing and Technical Services (Pty) Ltd and others (Casual Workers Advice Office as amicus curiae), where employees were dismissed not for participating in the primary misconduct but for failing to disclose to the employer information regarding that misconduct. The charge brought against the employees in the present instance is one of direct participation in misconduct. The arbitrator’s award does not apply the principle of common purpose, at least not in the sense that the term and its application were discussed by the Constitutional Court in Marley Pipe. Put another way, the appellant does not rely on the employees’ presence at the scene and any failure to intervene or disassociate themselves with an act of misconduct to justify the employees’ dismissal. The appellant relies on the direct observation by its witnesses of participation in the act of holding the Charnauds captive in their vehicle and preventing other members of management and monthly-paid employees from leaving the premises. The references to Marley Pipe and Dunlop Mixing in the Labour Court’s judgment are thus red herrings.

    Synopsis of LAC Cases – LD Essentials Podcast/Video (Divided into separate parts)

    CH to record a discussion video/podcast that gives a more conversational overview of these appeal court cases – the idea is to make the above content (which can be dry and somewhat difficult to read and understand) more interesting and accessible to the public/target audiences, but the target followers would still be HR/IR Professionals in the ER market/sector/industry. 

    These podcasts/videos would aim to:

    • Explain the Court’s thinking and attitude towards certain principles.
    • Clarify the meaning of the principles dealt with by the Court.
    • Give more context to the backdrop of these cases.
    • Touch on some of the history behind these cases.