Chapter 1 - Labour Law and The Constitution
Right to Engage in Collective Bargaining.
Freedom of the Defence Forces to Join Trade Unions.
South African National Defence Union vs. South African Defence Force.
Facts - New staffing policy to appoint Registrar of Military Trade Unions with the power to withdraw
registration of military trade unions without prior notice.
Court - The Supreme Court of Appeal, not justiciable for collective bargaining so referred to international
law with reference to the two conventions above. (Constitution Section 23(2) and 23(5), then Section
(36)).
Chapter 2 - The Contract of Employment
Thembi works on a piecemeal basis from home, where she beads bags for a company in Cape Town.
She is paid per unit completed and the work is erratic, depending on the orders that are placed with the
company. For example, in February 2011, she had no work, but in the previous three months, she was
busy and worked for about 60 hours in total. The company provides her with the beads and materials and
instructions as to the pattern and style of the beading. Thembi, who is an illegal immigrant, did not sign
any contract with the company. Is Thembi an employee of the company and would the labour legislation
protect her if the company no longer needed her services?
Relying upon the presumption of employment in the LRA and the reality test, Thembi would appear to be
an employee. Although she does not form part of the employer’s organisation (she works from home),
she is economically dependent upon the employer, receives instructions from the employer and is
provided with tools of the trade. The fact that she does not have a written contract of employment does
not affect her status as an employee, but her employer would be in breach of the BCEA. Which requires
all employers to provide all employees with written particulars of employment. Even though Thembi is an
illegal immigrant, she is nonetheless entitled to the protection of labour legislation because the right to fair
labour practices applies to everyone. As a result, Thembi is entitled to be protected by the LRA against
unfair dismissal.
The Parties to the Employment Relationship.
Employee Definition.
Denel vs. Gerber.
Facts - Gerber, independent contractor (formed for this purpose), working with Denel who terminated her
contract to hire a black candidate. Unfair retrenchment referred to Labour Court. Denel says she's not
employee.
Court - The Labour Appeal Court, Looking to see the true nature of the relationship, the court used a
reality test to show that she is indeed employed.
,Building Bargaining Council vs. Melmons Cabinets CC.
Facts - Melmons Cabinets CC changed contracts from employee to independent contractor so as to avoid
labour legislation.
Court - Labour Court used control test to show that they are indeed employees thus ruling accordingly.
Murray vs. Minister of Defence.
Facts - Murray, a naval officer in the South African Navy had to quit due to unfair labour practices but as a
member of the military, he didn't qualify for labour law.
Court - Supreme Court of Appeal ruled that though he is not bound by labour law, constitutional and
common law obligates the employer to fair practice. Thus he is allowed damages from his constructive
dismissal citing unfair labour practices.
Illegal Contracts.
Discovery Health Ltd vs. CCMA.
Facts - Argentinian dismissed by employer when his residence permit expired. As justification, employer
referred to Immigration Act 13 of 2002 which, disallows the employment of a foreign national without
permit. Definition of employee is a valid contract employment which the employee according to the
employer hence LRA didn't apply.
Court - Labour Court ruled that the permit expiration did not make the permit invalid. Only the employer
and not the employee are liable for such a breach. The stipulation is does not invalidate the contract of
employment and thus constitutionally the employee is still guarded by the LRA.
"Kylie" vs. CCMA.
Facts - Kylie is a sex worker appealing unfair dismissal but the Labour Court acknowledged that
prostitution is a criminal offence. Illegal/ immoral contracts are unenforceable. The definition of
employment covers sex workers but unfair dismissal is unenforceable as dismissal refers to the
termination of a valid contract of employment by definition.
Court - Kylie then appeals to the Labour Appeal Court. Which ruled the bill of rights, thus the
constitutional right to fair labour practices qualifies all employees for protection under the LRA. LAC refers
matter back to CCMA but rules that reinstatement for illegal work is inappropriate but compensation for
the unfair act must be considered.
Restraint of Trade Clauses.
David Crouch Marketing CC vs. Du Plessis.
,Facts - A booking agent and event planning company that specialised in providing artists and celebrities
for appearance at corporate functions. They enforce a restraint of trade clause on Du Plessis at the
Labour Court for a period of three years. So they say that their real relationships with artists need to be
safeguarded. Du Plessis says that the service offered by artists is for all. Also only industry in which the
employee has skills and experience.
Court - Labour Court ruled that it is not in the interest of public policy to enforce the restraint of trade
clause that stops the employee from earning a living. The clause must not be used to aside competition,
but to guard interest, thus they ruled against the restraint of trade clause since the pool of artists is open
for public use.
Sindane vs. Prestige Cleaning Service
Facts - cleaners employed fixed term eventuality contract. Employer = TES. EC terminates automatically
when contract between employer and client terminates. Client thus no longer needed employee. LC
considered whether dismissed or automatically terminated.
Court - Since the actions of the client and not those of the employer, terminated the contract. the
employer did not dismiss the employee by the LRA.
Mahlamu vs. CCMA
Facts - Similar to above. Security Guard employed through TES for a fixed period or until client no longer
needs employee. Thus client no longer needed employee thus the contract terminated automatically.
Court - LC concluded that statutory protection against unfair dismissal is fundamental to constitutional
right to fair labour practices. To guard vulnerable employees, by infusing fairness into contractual
relationship. (LRA Section 5(2)(b) and (4)).
Using this the court reached breach of Section 5(2)(b) permitted by LRA, to contract out of the right to be
fairly dismissed? Some statutory rights may be waived only if the subject is the sole beneficiary. But if
other or public interests are served then the right, may not be waived. LRA for employees is in the public
interest so termination is prohibited from contract since employee may not claim unfairness by section
188 of LRA.
Termination of Contracts.
NUM vs. CCMA.
Facts - The employee was convicted of culpable homicide initially for five years which was then reduced
to 10 months. Then the employer said that their contract terminated automatically due to a repudiation of
the employment contract via responsibility of performance so not a dismissal. CCMA agreed that it is
suspended if the incapacity is temporary but terminated if the incapacity is permanent.
Court - Labour Court on review of the facts, the decision to terminate constituted a dismissal. CCMA
Commissioner failed to discern whether temporary or permanent so findings ruled as not objectively
justifiable and thus dismissed.
,South African Post Office Ltd vs. Mampeule.
Facts - Employee appointed CEO and executive director on the board of directors for five year fixed term
contract. Articles of association stipulated that ceasing directorship for any reason terminates his contract
of employment automatically. Following his removal from the board for poor performance, his contract of
employment terminated automatically.
Court - Labour Court held that any act by employer directly or indirectly resulting in termination of contract
constitutes a dismissal. The employer's decision to terminate directorship led to termination of contract
thus constituting a dismissal.
Overlap between Contractual and Statutory Rights
Fedlife Assurance Ltd vs. Wolfaardt
Facts - Employer terminated five year fixed term employment contract based on operational
requirements. Employee filed for breach of contract and entitlement to damages. Employer argued LRA
provision to dismiss fairly.
Court - Supreme Court of Appeal held that the LRA is not exhaustive on employee rights and remedies
upon employee contract termination but common law rights hold for claims of breach of contract.
Conclusion is employee entitled to damages (being remuneration due on the balance of the contract).
Jurisdiction and Remedies
South African Maritime Safety Authority vs. McKenzie.
Facts - Employee previously instituted proceeding by LRA. Prior to hearing, settlement agreement
reached. In which paid one year's salary. But he goes to HC to claiming unfair dismissal in terms of
employment contract (no dismissal without just cause) SCA considered merits for damages due to the
breach as a result.
Court - SCA held that LRA provisions for unfair dismissal do not allow importing statutory rights into
employment contract. Constitution allows the application and development of common law to effect a right
in the bill of rights. Only applicable where right is unregulated by legislation. Court concluded employees
are guarded by LRA, employment contracts are not subject to implied term in the statutory right to fair
labour practices and fair dismissal in LRA, resulting in unnecessary duplication of common law and
statutory rights.
Mangope vs. Football Association.
Facts - Employee approached LC for damages for breach of contract. Employed for a fixed three year
term on probation. After probation, contract terminated due to poor performance. Contract had employee
entitlement to evaluation and counselling prior to termination which did not happen. When his claim.
, Court - LC held that remedies for employees who have been dismissed are in CL or LRA. LRA remedies
fairness based troubles but not law of contract. Under CL, BOC entitles the employee to challenge or
accept and sue for damages. The contract expressly stipulated that before termination due to poor
performance, conditions must be followed. Evidently, employer failed to. LC awarded employee
compensation equal to remuneration for the balance of the contract.
Chapter 3 - Basic Conditions of Employment
Diana works as a chef at Tasty Fish Take Aways. She works six days a week. Her ordinary hours are
from 12:00hrs to 22:00hrs. She is allowed to take a 45 minute meal break at 18:00hrs. Se gets 15
consecutive days’ annual leave, which she is entitled to take during February or March. At night, Diana
has to walk three kilometres back to her house, as there is no public transport.
Diana is unhappy about her employment conditions. After she told her employer she was pregnant, he
remarked that she is only entitled to two months unpaid maternity leave
Diana’s employer is evidently in breach of several provisions of the BCEA.
● Diana’s ordinary hours of work amount to 60 hours a week, which is 15 hours in excess of the maximum
ordinary weekly hours prescribed by the BCEA.
● The BCEA provides that employees must be allowed to take a meal break of one continuous hour after
having worked for five hours, while Diana’s employer only allows her to take a meal break of 45 minutes
after six hours.
● The BCEA provides that employees are entitled to 21 day’s consecutive leave. Diana’s employer would
have to allow her six more days in order to comply with the BCEA.
● With respect to night work (work after 18:00hrs), the BCEA provides that if no public transport is available,
the employer must provide transport between the workplace and the place of residence of the employee.
The employer is clearly in breach of this provision.
● Diana is entitled to four months’ unpaid maternity leave and not to two months as stated by the employer.
Jardine vs. Tongaat-Hulett Sugar Ltd
Facts - Employee accumulated 48 leave days when employment terminated. But EC limits accrual to 40
Days. Despite this, he claimed payment for the extra 8 Days. Employers argued BCEA did not apply
since leave allowed is more than minimum in BCEA and contract had stipulated.
Court - LC held that BCEA does not limit accrued leave settlement over above minimum.
Jooste vs. Kohler Packaging Ltd.
Facts - Employee was entitled to 25 leave days but had accrued 141 Days. But EC limits accrual to 50
Days. So employer only paid 50 days as in the contract.
Court - LC held that BCEA provisions are circumvented by employer and employee if the employee is
entitled to all leave days. Contracts may not be out of these provisions. Pay may not be swapped for
Right to Engage in Collective Bargaining.
Freedom of the Defence Forces to Join Trade Unions.
South African National Defence Union vs. South African Defence Force.
Facts - New staffing policy to appoint Registrar of Military Trade Unions with the power to withdraw
registration of military trade unions without prior notice.
Court - The Supreme Court of Appeal, not justiciable for collective bargaining so referred to international
law with reference to the two conventions above. (Constitution Section 23(2) and 23(5), then Section
(36)).
Chapter 2 - The Contract of Employment
Thembi works on a piecemeal basis from home, where she beads bags for a company in Cape Town.
She is paid per unit completed and the work is erratic, depending on the orders that are placed with the
company. For example, in February 2011, she had no work, but in the previous three months, she was
busy and worked for about 60 hours in total. The company provides her with the beads and materials and
instructions as to the pattern and style of the beading. Thembi, who is an illegal immigrant, did not sign
any contract with the company. Is Thembi an employee of the company and would the labour legislation
protect her if the company no longer needed her services?
Relying upon the presumption of employment in the LRA and the reality test, Thembi would appear to be
an employee. Although she does not form part of the employer’s organisation (she works from home),
she is economically dependent upon the employer, receives instructions from the employer and is
provided with tools of the trade. The fact that she does not have a written contract of employment does
not affect her status as an employee, but her employer would be in breach of the BCEA. Which requires
all employers to provide all employees with written particulars of employment. Even though Thembi is an
illegal immigrant, she is nonetheless entitled to the protection of labour legislation because the right to fair
labour practices applies to everyone. As a result, Thembi is entitled to be protected by the LRA against
unfair dismissal.
The Parties to the Employment Relationship.
Employee Definition.
Denel vs. Gerber.
Facts - Gerber, independent contractor (formed for this purpose), working with Denel who terminated her
contract to hire a black candidate. Unfair retrenchment referred to Labour Court. Denel says she's not
employee.
Court - The Labour Appeal Court, Looking to see the true nature of the relationship, the court used a
reality test to show that she is indeed employed.
,Building Bargaining Council vs. Melmons Cabinets CC.
Facts - Melmons Cabinets CC changed contracts from employee to independent contractor so as to avoid
labour legislation.
Court - Labour Court used control test to show that they are indeed employees thus ruling accordingly.
Murray vs. Minister of Defence.
Facts - Murray, a naval officer in the South African Navy had to quit due to unfair labour practices but as a
member of the military, he didn't qualify for labour law.
Court - Supreme Court of Appeal ruled that though he is not bound by labour law, constitutional and
common law obligates the employer to fair practice. Thus he is allowed damages from his constructive
dismissal citing unfair labour practices.
Illegal Contracts.
Discovery Health Ltd vs. CCMA.
Facts - Argentinian dismissed by employer when his residence permit expired. As justification, employer
referred to Immigration Act 13 of 2002 which, disallows the employment of a foreign national without
permit. Definition of employee is a valid contract employment which the employee according to the
employer hence LRA didn't apply.
Court - Labour Court ruled that the permit expiration did not make the permit invalid. Only the employer
and not the employee are liable for such a breach. The stipulation is does not invalidate the contract of
employment and thus constitutionally the employee is still guarded by the LRA.
"Kylie" vs. CCMA.
Facts - Kylie is a sex worker appealing unfair dismissal but the Labour Court acknowledged that
prostitution is a criminal offence. Illegal/ immoral contracts are unenforceable. The definition of
employment covers sex workers but unfair dismissal is unenforceable as dismissal refers to the
termination of a valid contract of employment by definition.
Court - Kylie then appeals to the Labour Appeal Court. Which ruled the bill of rights, thus the
constitutional right to fair labour practices qualifies all employees for protection under the LRA. LAC refers
matter back to CCMA but rules that reinstatement for illegal work is inappropriate but compensation for
the unfair act must be considered.
Restraint of Trade Clauses.
David Crouch Marketing CC vs. Du Plessis.
,Facts - A booking agent and event planning company that specialised in providing artists and celebrities
for appearance at corporate functions. They enforce a restraint of trade clause on Du Plessis at the
Labour Court for a period of three years. So they say that their real relationships with artists need to be
safeguarded. Du Plessis says that the service offered by artists is for all. Also only industry in which the
employee has skills and experience.
Court - Labour Court ruled that it is not in the interest of public policy to enforce the restraint of trade
clause that stops the employee from earning a living. The clause must not be used to aside competition,
but to guard interest, thus they ruled against the restraint of trade clause since the pool of artists is open
for public use.
Sindane vs. Prestige Cleaning Service
Facts - cleaners employed fixed term eventuality contract. Employer = TES. EC terminates automatically
when contract between employer and client terminates. Client thus no longer needed employee. LC
considered whether dismissed or automatically terminated.
Court - Since the actions of the client and not those of the employer, terminated the contract. the
employer did not dismiss the employee by the LRA.
Mahlamu vs. CCMA
Facts - Similar to above. Security Guard employed through TES for a fixed period or until client no longer
needs employee. Thus client no longer needed employee thus the contract terminated automatically.
Court - LC concluded that statutory protection against unfair dismissal is fundamental to constitutional
right to fair labour practices. To guard vulnerable employees, by infusing fairness into contractual
relationship. (LRA Section 5(2)(b) and (4)).
Using this the court reached breach of Section 5(2)(b) permitted by LRA, to contract out of the right to be
fairly dismissed? Some statutory rights may be waived only if the subject is the sole beneficiary. But if
other or public interests are served then the right, may not be waived. LRA for employees is in the public
interest so termination is prohibited from contract since employee may not claim unfairness by section
188 of LRA.
Termination of Contracts.
NUM vs. CCMA.
Facts - The employee was convicted of culpable homicide initially for five years which was then reduced
to 10 months. Then the employer said that their contract terminated automatically due to a repudiation of
the employment contract via responsibility of performance so not a dismissal. CCMA agreed that it is
suspended if the incapacity is temporary but terminated if the incapacity is permanent.
Court - Labour Court on review of the facts, the decision to terminate constituted a dismissal. CCMA
Commissioner failed to discern whether temporary or permanent so findings ruled as not objectively
justifiable and thus dismissed.
,South African Post Office Ltd vs. Mampeule.
Facts - Employee appointed CEO and executive director on the board of directors for five year fixed term
contract. Articles of association stipulated that ceasing directorship for any reason terminates his contract
of employment automatically. Following his removal from the board for poor performance, his contract of
employment terminated automatically.
Court - Labour Court held that any act by employer directly or indirectly resulting in termination of contract
constitutes a dismissal. The employer's decision to terminate directorship led to termination of contract
thus constituting a dismissal.
Overlap between Contractual and Statutory Rights
Fedlife Assurance Ltd vs. Wolfaardt
Facts - Employer terminated five year fixed term employment contract based on operational
requirements. Employee filed for breach of contract and entitlement to damages. Employer argued LRA
provision to dismiss fairly.
Court - Supreme Court of Appeal held that the LRA is not exhaustive on employee rights and remedies
upon employee contract termination but common law rights hold for claims of breach of contract.
Conclusion is employee entitled to damages (being remuneration due on the balance of the contract).
Jurisdiction and Remedies
South African Maritime Safety Authority vs. McKenzie.
Facts - Employee previously instituted proceeding by LRA. Prior to hearing, settlement agreement
reached. In which paid one year's salary. But he goes to HC to claiming unfair dismissal in terms of
employment contract (no dismissal without just cause) SCA considered merits for damages due to the
breach as a result.
Court - SCA held that LRA provisions for unfair dismissal do not allow importing statutory rights into
employment contract. Constitution allows the application and development of common law to effect a right
in the bill of rights. Only applicable where right is unregulated by legislation. Court concluded employees
are guarded by LRA, employment contracts are not subject to implied term in the statutory right to fair
labour practices and fair dismissal in LRA, resulting in unnecessary duplication of common law and
statutory rights.
Mangope vs. Football Association.
Facts - Employee approached LC for damages for breach of contract. Employed for a fixed three year
term on probation. After probation, contract terminated due to poor performance. Contract had employee
entitlement to evaluation and counselling prior to termination which did not happen. When his claim.
, Court - LC held that remedies for employees who have been dismissed are in CL or LRA. LRA remedies
fairness based troubles but not law of contract. Under CL, BOC entitles the employee to challenge or
accept and sue for damages. The contract expressly stipulated that before termination due to poor
performance, conditions must be followed. Evidently, employer failed to. LC awarded employee
compensation equal to remuneration for the balance of the contract.
Chapter 3 - Basic Conditions of Employment
Diana works as a chef at Tasty Fish Take Aways. She works six days a week. Her ordinary hours are
from 12:00hrs to 22:00hrs. She is allowed to take a 45 minute meal break at 18:00hrs. Se gets 15
consecutive days’ annual leave, which she is entitled to take during February or March. At night, Diana
has to walk three kilometres back to her house, as there is no public transport.
Diana is unhappy about her employment conditions. After she told her employer she was pregnant, he
remarked that she is only entitled to two months unpaid maternity leave
Diana’s employer is evidently in breach of several provisions of the BCEA.
● Diana’s ordinary hours of work amount to 60 hours a week, which is 15 hours in excess of the maximum
ordinary weekly hours prescribed by the BCEA.
● The BCEA provides that employees must be allowed to take a meal break of one continuous hour after
having worked for five hours, while Diana’s employer only allows her to take a meal break of 45 minutes
after six hours.
● The BCEA provides that employees are entitled to 21 day’s consecutive leave. Diana’s employer would
have to allow her six more days in order to comply with the BCEA.
● With respect to night work (work after 18:00hrs), the BCEA provides that if no public transport is available,
the employer must provide transport between the workplace and the place of residence of the employee.
The employer is clearly in breach of this provision.
● Diana is entitled to four months’ unpaid maternity leave and not to two months as stated by the employer.
Jardine vs. Tongaat-Hulett Sugar Ltd
Facts - Employee accumulated 48 leave days when employment terminated. But EC limits accrual to 40
Days. Despite this, he claimed payment for the extra 8 Days. Employers argued BCEA did not apply
since leave allowed is more than minimum in BCEA and contract had stipulated.
Court - LC held that BCEA does not limit accrued leave settlement over above minimum.
Jooste vs. Kohler Packaging Ltd.
Facts - Employee was entitled to 25 leave days but had accrued 141 Days. But EC limits accrual to 50
Days. So employer only paid 50 days as in the contract.
Court - LC held that BCEA provisions are circumvented by employer and employee if the employee is
entitled to all leave days. Contracts may not be out of these provisions. Pay may not be swapped for
