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  1. CASE LAW REVIEW Indaba 2012 Cameron Morajane

  2. SA Post Office v WF Maritz N.O. (LC) Point in issue: CCMA jurisdiction - acting allowance and failure to deal with condonation at conciliation CCMA finding: CCMA has jurisdiction in appropriate cases. Acting allowance is a benefit. Condonation deferred to arb LC finding: CCMA has no jurisdiction to deal with AA. Commissioner should have dealt with condonation LC reasons/basis: reliance on the ex lege and ex contractu principle as held in Hospersa (LAC) (pra 23) Commissioner lessons: the principle in Hospersa have not changed. Rely on law or contract

  3. Mohale vs. Cash Paymaster (LC) Point in issue:Can a commissioner interpret other settlement agreement? LC finding:S24(8) interpretation and application confirmed. -FNB vs. Mooi interpreted and distinguished. Validity was not placed before commissioner par 35. -No distinct power to determine other settlement. -Interpretation and application must be incidental par 33 & 39. - Remittal to CCMA is indicative of power to interpret par 37.

  4. Mohale vs. Cash Paymaster (LC) (Cont) • Commissioner lessons: • S24(8) of the LRA not affected • Commissioner can interpret settlement agreement- incidental. • No power to determine or arbitrate distinct interpretation disputes.

  5. Herhold v Nedbank 2012 (LAC) Point in issue: review test in Sidumo in decline? Note Herhold is an LAC decision Exposure of commissioner - potential prejudice : “may have come to a different decision” is it lowering the test? (emphasis) The case of Sidumo as whole is unchallenged Commissioners lessons: Sidumos fully applicable. Must be read together with Cash management (LAC), continue to be a reasonable decision maker

  6. Mabitsela v Dept of Local Government (LC) Point in issue: unfair dismissal-role of interpreter and legal representation Arbitration: No EVD was led. Employee conceded fraud. Requested interpreter in writing but not given. Recorder switched off. Private discussion with employer party. Dismissal fair Labour Court: Absence of interpreter offends fair trial. Even if represented arbitrator duty bound 2 provide interpreter. Applicant did not understand concessions because of language. Award set aside Lessons for comm: when requested provide interpreter, Irrespective of legal representation. No private sessions

  7. Mediterranean Textile v SACTWU (LAC) Point in issue: is reinstatement of 125 employees appropriate sanction ? Factors considered: employees dismissed for 27 months, reinstatement will cost R10m,183 employees would lose jobs, debt to IDT of R36m,unprotected strike, employer contribution LAC order: reinstatement, back-pay reduced, above factors considered, both interests balanced. Possible shut down taken into account. Lessons for comm: balance the interest of employer and employee. factors must be obtained during hearing. Arb guidelines relevant, section 193 to be used with factors in arb guide

  8. Kievitskroon v Moledi & other (LAC) Point in issue: Leave/Sangoma training Arbitration:re-instatement without back-pay. Labour Court: The award is well reasoned. No second guessing comm. Review not appeal. Review baseless. Comm is a reasonable decision-maker. LAC: employee not sick in conventional sense. Cultural belief. Section 23 of BCEA does not apply. No culture must be trivialized. Lesson for comm: recognition of cultures, no pronouncement on medical certificates of traditional healers. No instruction to grant leave. No illness issue.

  9. CCMA V INZUZU (LAC) Point in issue: Order of cost & section 126 of LRA Lesson 1: Make sure all papers files are in the file. Lesson2: Ruling must clearly indicate what material was considered. Para 34 of judgment. Lesson 3: Despite general protection in section 126, avoid negligence, malice or bad faith. Lesson 4: Affidavits must be filed in appropriate cases like in this case. Lessons 5: Should the CMO read the notice of motion? Par 40 of the judgment.

  10. Long v Prism Holding (LAC) Point in issue: Does acquisition of shares trigger sec 197? LAC: No Only shares were acquired. No trigger for sec197. The employer remained the same. Only one employer . Employees not in danger of dismissal. Long was retrenched. Section 187 does not apply.

  11. SAMWU V Ekurhuleni Municipality (LC) Point in issue: No work no pay on fulltime shopstewardduring a protected strike LC: Does not apply The full time shop steward appointed ito collective agreement. Full time shop stewards render service to the union not employer. Employer pays salary. Accountable to the union. Participating in the strike is rendering service to the union. No withdrawal of service if servicing union.