CCMAil August2005

CCMAil
August 2005
C O N T E N T S
CASE ALERTS.................................................................................................................................................................................... 2
LABOUR COURT AND APPEAL COURT JUDGEMENTS................................................................................................................. 4
DECISIONS: OTHER DISPUTE RESOLUTION FORUMS................................................................................................................. 7
18TH ANNUAL LABOUR LAW CONFERENCE..10
Some cases and practical examples of sexual harassment in the workplace.................................................................11
Termination By Operation Of Law Bypassing The Unfair Dismissal Provisions Of The Labour Relations Act13
Case Update: Individual Employment Law.......................................................................................................................... ..16
Protected Disclosures Act: Whistle-blowing As A Corporate Governance Tool To Deliver Organisational Accountability.......20
Brussels Sprouts Of Equity................................................................................................................... .23
EDITORIAL TEAM
Nersan Govender
Dorothy Khosa
Tshidi Letsoalo
Lucky Moloi
August 2005 Page 1

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CASE ALERTS
By Lucky Moloi
GA36457-04 GIWUSA obo Members v Spectrum
Ceramics CC Commissioner: Keith
Collective bargaining.
The commissioner was required to determine whether
the applicant trade union was entitled to be granted
organisational rights in terms of s14 of the LRA.
The applicant trade union was a registered union in
terms of s 96(7)(a) of the LRA, and had approached
the respondent requesting that it be granted rights in
terms of ss 12, 13, and 14. In the request for these
rights the union purported to have, as its members, the
majority of employees employed at the respondents
business. Information was also requested concerning
staff complement and a subsidiary business of the
respondent.
Noted: That the applicant trade union had 23 members
out of a workforce of 73 employees.
Also noted: That for a trade union to be considered as
a majority union in a particular workplace, it should
have a representivity figure of 50% plus an additional
one member in such a workplace. Applied in casu the
applicant trade union, in order to be entitled to s 14
right of appointing trade union representatives would
have required 37 verified members (50.7%) plus one
additional member, that is 38 verified members. On the
date of the arbitration, it was found that the trade union
only had 10 verified members.
Held: That the applicant trade union was not entitled to
representivity in terms of s14 of the LRA.
Case reference
OCGAWU v Volkswagen SA (Pty) Ltd & Another (2002)
23 ILJ 220 (CCMA)
FS1953-04 Kelly v ASTRAL Foods Ltd
Commissioner: van Aarde
Incapacity and poor work performance.
The applicant had alleged that he had been verbally
dismissed for reasons related to poor work
performance. He also alleged that he had been
compelled to accept early retirement.
The respondent claimed that the applicant had entered
into a voluntary mutual agreement with it to the effect
that his services were to be terminated by means of

early retirement. The respondent further alleged that
the applicant had been issued with a warning for poor
work performance.
Noted: That the applicant had in fact been put to a final
ultimatum . . . face a dismissal and loose everything or
accept an early retirement package.
Also noted: That a distinction must be drawn between
an unfair dismissal and the benefits arising out of the
pension fund. The applicant had been dismissed, and
due to financial hardship he then signed the
Retirement Notice some four months later.
Further noted: That as already pointed out, a
dismissal (for whatever reason) does not affect the
pension-benefits at all, and, therefore, the
commissioner was of the opinion that the applicant had
been ill-advised or misled or unduly threatened in that
regard.
Held: That the applicant had been forced to accept an
early retirement. The dismissal was found to have been
both procedurally and substantively unfair.
Case references
Boudach v United Tobacco Co Ltd (2000) (4) SA 436
(SCA)
Cimma v Blick SA (Pty) Ltd (2000) 5 LLD 34 (CCMA)
Cross v Die Sinodale Fonds van die Nederduitse
Gereformeerde Kerk (2000) 5 LLD 72 (PFA/GA/53/98
NJ)
De Waal v ARMSCOR (1998) 18 ILJ 1674 (PFA)
Malatje v IMSSA (2000) 5 LLD 34 (LC)
Pick n Pay Retailers (Pty) Ltd v Shokoane NO &
Others (1999) 4 LLD 716 (LC)
Rubenstein v Prices Daelite (Pty) Ltd (2002) 23 ILJ
528 (LC)
SACCAWU v Stuttafords Department Stores Ltd
(1999) 20 ILJ 2792 (LC)
Schweizer v Waco Distributors (A Division of Voltex
(Pty) Ltd (1998) 18 ILJ 1573 (LC)
Stanford v Rockham Industries Mobeni (2000) 21 ILJ
267 (CCMA)
Steynberg v Colin Security Group (Pty) Ltd (1998) 18
ILJ 304 (LC)
Unilong Freight Distributors (Pty) Ltd v Muller (1998)
18 ILJ 229 (SCA)
August 2005 Page 2

FS2500-4 / FS2501-04 UASA & Others v Freegold

(Pty) Ltd/Glen Harmony Commissioner van Aarde
Interpretation and application of a collective
agreement.
It was common cause that during the course of
December 2003, the parties had entered into a
collective agreement to the effect that the parties had
committed themselves in sustaining work security and
profitability of the mine. This was done by working
continuous operations for seven (7) days per week,
and that the affected workers would be paid in
accordance with the agreement and in compliance with
s16 of the Basic Conditions of Employment Act (the
BCEA).
The applicants argued that they had been entitled to
payment for work done on Sundays.
Noted: That s16 of the BCEA is subject to changes by
means of a collective agreement.
Also noted: That the terms of the collective
agreements were clear and unambiguous. The
respondent had fully complied with the provisions set
out in the collective agreement and the affected
employees were paid, accordingly, within the context of
the said agreements in compliance with s16 of the
BCEA.
Held: That the respondent had not only complied with
the provisions of s16, but it had also correctly paid the
affected employees.
Case references
Nel v Ndaba & Others (1999) 20 ILJ 2666 (LC)
NUMSA & Others v Driveline Technologies (Pty) Ltd
(1999) 20 ILJ 2900 (LC)
NUMSA & Others v Driveline Technologies (Pty) Ltd2
(2000) 2 ILJ 142 (LAC)
UWCASU v University of the Western Cape [2002] 5
BLLR 487 (LC)
Zeuna-Starker BOP (Pty) Ltd v NUMSA (1999) 20 ILJ
108 (LAC)
GAPT1379-05 Tshishonga v National Occupational
Safety Association Commissioner: van Wyk
Severity of sanction.
The commissioner was called upon to determine

whether a final written warning valid for 24 months
and its additional measures were rationally justifiable
in view of the managerial prerogative to discipline fairly,
and if not, to substitute and/or amend the sanction in
question.
The applicant did not dispute the fact of him deserving
a final written warning, but challenged the duration
thereof for 24 months. He alleged that the severity of
the final written warning coupled with all the additional
measures were too harsh and inappropriate.
The respondent regarded managerial prerogative to
discipline as having been fair and just as the employer
decidedly could easily have taken a decision to dismiss
the applicant. The respondent also disputed that the
sanction of 24 months was excessive as the applicant
had attempted to compete directly with it. The
respondent further claimed that the additional
measures to the 24 months sanction had been required
to ensure that the applicant did not misconduct himself
again during that period.
Noted: That discipline should be corrective rather than
punitive in nature. The sanction meted out to the
applicant had been of a punitive nature, and
consequently too harsh.
Held: That the warning had caused needless strain on
the employment relationship between the parties. The
employees promotional prospects had remained rather
depressingly bleak. The employer party was ordered to
retrospectively substitute the applicants sanction of a
final written warning valid for 24 months with a sanction
of a final written warning valid for a period of 12
months.
Case references
County Fair Foods (Pty) Ltd v CCMA & Others [1999]
11 BLLR 1117 (LAC)
JD Group Ltd v De Beer1 (1996) 17 ILJ 1103 (LAC)
Magalies Water Board v La Grange NO & Others
[2002] 1 BLLR 48 (LC)
NEHAWU v University of Cape Town & Others 2003
(2) BCLR 154 (CC)
Ntshangane v Speciality Metals CC [1998] 3 BLLR 305
(LC)
Oerlikon Electodes SA v CCMA & Others [2003] 9
BLLR 900 (LC)
August 2005 Page 3

LABOUR
COURT
AND
LABOUR APPEAL COURT
DECISIONS
By Tshidi Letsoalo
Labour Appeal Court: JA50/03
Wyeth SA (Pty) Ltd v Manqele & Others: Judges
Nicholson, Nkabinde & Pillay
Contract of employment Employee- Person who
has concluded contract of employment but
has not yet commenced working for
employer an employee for purposes of the
LRA.
contemplated that people became employees only

when they commenced working for the employer. The
definition of employee must now be read in relation to
the Constitution because as it stands the statutory
definition is confusing. The definition of employee is
cast in the present tense, thus suggesting that it
includes only employees who are currently working for
the employer.
The appellant had offered the first respondent the

position on condition that he would be supplied with a
company car. The first respondent then selected a
used vehicle, but he was told to find a new vehicle.
After he informed the appellant that he had done so,
he was offered the post which he accepted. However,
the bank informed the appellant that the car that the
first respondent had chosen was not new. The
respondent then terminated the contract on the ground
that they had been unable to reach agreement on the
purchasing of the motor vehicle.
Further noted: That the view that employees must

have actually commenced employment before falling
within the scope of the LRA is untenable.
The first respondent then referred the matter to the

CCMA. The appellant contended that the CCMA
lacked jurisdiction to entertain the dispute, as the first
respondent had not been dismissed because it had not
entered into an employment contract with him. Both
the CCMA and the Labour Court (on review) rejected
the appellants contention that the CCMA lacked
jurisdiction. On appeal, the appellant argued that no
contract had in fact been concluded, and that if a
contract was concluded, the first respondent was not
an employee as defined by the LRA.
South Africa
Adampol (Pty) Ltd v Administrator, Transvaal 1989 (3)
SA 800
Bader Bop (Pty) Ltd v NUMSA & Another (2002) 2
BLLR 139 (LAC)
Ceramic Industries Ltd t/a Betta Sanitary Ware v
NCBAWU & Others (1997) 6 BLLR 697 (LAC)
Dempsey v Home & Property (1995) 3 BLLR 10 (LAC)
Herbst v Limar Motors (1999) 20 ILJ 2465 (CCMA)
Jack v Director-General Department of Environmental
Affairs (2003) 1 BLLR 28 (LC)
Kinemas Ltd v Berman 1932 AD 246
Liberty Life Association of Africa Ltd v Niselow (1996)
7 BLLR 825 (LAC)
NEHAWU v University of Cape Town & Others (2003)
3 SA 1 (CC)
National Union of Textile Workers v Stag Packing (Pty)
Ltd and Others (1982) 4 SA 15 (T)
NUMSA & Others v Bader Bop (Pty) Ltd & Another
(2003) 2 BLLR 106 (CC)
Qozoleni v Minister of Law and Order and Another
(1994) 1 BCLR 75 (E)
Rogers v Durban Corporation 1950 (1) SA 65 (N)
S v Zuma and Others (1995) 4 BCLR 401 (CC)
Noted: That when a contract is reduced in writing, the

document is generally regarded as the exclusive
memorial of their transaction. The appellant was not
entitled to later introduce new terms to the contract.
The details of the car also did not materially alter the
parties intention of the relationship between them. The
Court accordingly held that a contract of employment
had been concluded.
Also noted: As to whether the first respondent was an
employee at the time the contract was withdrawn. The
Court noted that none of the earlier definitions
Held: That the statutory definition of employee

includes persons who have concluded contracts of
employment where the commencement of employment
is deferred to a future date. The appeal was
accordingly, dismissed.
Case references
August 2005 Page 4

SABC v McKenzie (1999) 1 BLLR 1 (LAC)

Smit v Workmens Compensation Commissioner
(1979) 1 SA 51 (A)
Union Agreement v Vianini Pipes (Pty) Ltd 1941 AD 34
University of the North & Others v Ralebipi & Others
(2003) 11 BLLR 1120 (LAC)
Whitehead v Woolworths (Pty) Ltd (1999) 8 BLLR 862
(LC)
Woolworths (Pty) Ltd v Whitehead (2000) 6 BLLR 640
(LAC)
Xaba v Portnet Ltd (2000) 1 BLLR 55 (LAC)
United Kingdom
Sarker v South Tees Acute Hospitals NHS Trust (1997)
IRLR 328
Labour Court: P254/03
Koto & Another v General Public Service Sectoral
Bargaining Council & Others: Judge Farber
Dismissal Misconduct dishonesty.
The applicants were both seconded by their then
employer, the Department of Agriculture & Land Affairs
to work at the Transkei Agricultural Marketing Board.
After some years, the board was wound up and the
applicants were transferred back to the department.
However, when the auditor general submitted a report
on a number of irregularities in the affairs of the board,
the department then instituted disciplinary action
against the applicants and were effectively dismissed.
The applicants then referred the dispute to the Public
Service Sectoral Bargaining Council. The arbitrator
held that although the applicants were not guilty of
most counts against them, their dismissal had still
been warranted because the first respondent had inter
alia voted salary increases for board employees after
the board had been wound up. Furthermore the
second applicant also negotiated a sale of board
property to the first applicant. On review, the applicant
contended that because they had not been crossexamined, the arbitrator should have accepted their
versions, which they said proved conclusively that they
were not guilty of any misconduct.
Noted: That the thrust of the applicants defence to the
charges upheld by the arbitrator had been that they
were authorised to act in the manner they had done.
The defence was considered invalid by the Court,
because any authority they might have enjoyed by
virtue of their positions on the board terminated when it
was wound up. The arbitrators finding that the
applicants had been guilty could not be faulted. No
cross-examination was required to expose that flaw in
the applicants defence because it turned on a point of
law.
Held: The application was, accordingly, dismissed.
Case references
Gibb v Nedcor Limited (1997) 12 BLLR 1580 (LC)
Minister of Irrigation, Ex parte (1948) 2 SA 779 (C)
Pick n Pay Retailers (Pty) Ltd (Gallo Manor Branch) v
Commercial Catering and Allied Workers Union of SA
(1990) 11 ILJ 1352 (ARB)
President of the Republic of South Africa & Others v
South African Rugby Football Union & Others (1999)
10 BCLR 1059 (CC)
Rainbow Diamonds (Edms) Bpk v Sanlam 1984 (3) SA
1 (A)
Small v Smith 1954 (3) SA 434 (SWA)
Labour Court: D1419/01
Moodley v Fidelity Cleaning Services (Pty) Ltd t/a
Fidelity Supercare Cleaning: Judge Murphy
Dismissal Operational requirements.
Pritchard Cleaning Services employed the applicant
until its merger with the respondent, whereupon her
contract of employment was transferred to the
respondent. After several years with the respondent,
she was subsequently retrenched and claimed that her
dismissal was unfair. The respondent had conceded
that it had failed to give the employee written notice of
her retrenchment.
Noted: That failure by employers to comply with the
notice requirements frequently gives rise to
misconceptions, breakdowns of trust and frustrates the
joint consensus-seeking approach required by the
LRA. Employers who fail to follow the LRA do so at the
risk that the retrenchment might be found to be both
procedurally and substantively unfair.
Also Noted: That it had been difficult to determine
from the evidence the details of the rationalisation
exercise that had been used to justify the applicants
retrenchment. The first information the applicant had
received about her retrenchment was contained in a
letter advising her that she was to be dismissed.
Although the respondent had made some effort to find
an alternative post for the applicant, that was on her
insistence and begun only after the applicant had been
selected for retrenchment.
Held: That the decision to dismiss the applicant had
been arbitrary, irrational and subjective. The
applicants dismissal was accordingly procedurally and
substantively unfair. The applicant was reinstated with
retrospective effect.
Case references
Johnson and Johnson (Pty) Ltd v Chemical Workers
Industrial Union (1998) 12 BLLR 1209 (LAC)
SACTWU & Others v Discreto (1998) 12 BLLR 1228
(LAC)
August 2005 Page 5


NUMSA & Another v Hillside Aluminium: Judge
Murphy
Practice and procedure-Condonation-Prospects of
success not reasonable.
After the applicant was dismissed, she referred a
dispute to the bargaining council. The matter remained
unresolved at conciliation. The matter was then
scheduled for arbitration, which was postponed due to
the unions application to sought legal representation.
At the commencement of the second arbitration
hearing, the applicants representatives raised a point
in limine that the council lacked jurisdiction because
the dispute concerned an alleged automatically unfair
dismissal. The matter was then referred to the Labour
Court and the applicant sought condonation for the late
filing.
Noted: That where condonation is sought for noncompliance with time limits, the applicant must give a
satisfactory explanation for each period of delay. That
more than a year had lapsed between the date on
which the certificate of outcome was issued, and the
date on which the matter had been filed. The applicant
had not tendered an explanation for that delay. While
the applicant might charitably be excused for having
been belatedly advised that the matter should be
referred to the Court, she had tendered no explanation
why the point was raised only when the matter came
before the arbitrator.
Also noted: That, on prospects of success, the
applicant had claimed that she had been dismissed for
filing a complaint of sexual harassment with the
CCMA. The respondent claimed that she had been
dismissed for making frivolous and unfounded
allegations. The Court further noted that it had been
impossible on papers to describe the applicants
prospects of success as anything more than
reasonable. Given the paucity of the applicants
explanations for her delay, it was not possible to grant
condonation.
Held: The application for condonation was dismissed
along with the main application.
Case references
Chetty v Law Society of Transvaal (1985) 2 SA 756

Melane v Santam Insurance Company Ltd (1962) 4 SA
531
NUM v Council for Mineral Technology (1999) 3 BLLR
209 (LAC)
Saloojee & Another NNO v Minister of Community
Development (1965) 2 SA 135
South African Fibre Yarn Rugs Limited v CCMA &
Others: Judge Murphy
CCMA Award- Review.
The respondent employee was dismissed for
absenting himself from work without permission. The
employee referred a dispute to the CCMA, and
reinstatement was ordered.
Noted: That the reason given by the applicant at
arbitration was that during the early hours of the
morning he had received a call from his wife, informing
him that their child was ill. The respondent
commissioner had found the applicants explanation
unsatisfactory, and could not understand why in either
event the employee had not informed management
that he would be leaving. The commissioner also
found that the employees misconduct was serious
because his absence endangered the entire factory.
However, the commissioner further contradicted
himself by finding that the risk created by the
employee was minimal.
Also Noted: That since the employee had admitted
guilt; the only issue the commissioner was required to
decide was whether the sanction of dismissal was fair
in the circumstances. To do that the commissioner
should have invited evidence relevant to that issue. It
had been clear from the record that the commissioner
had failed to apply his mind to the issues with the
requisite degree of care.
Held: That the award was, accordingly, set aside and
remitted to the CCMA to be heard by another
commissioner.
Case reference
Livestock and Meat Industries Control Board v Garda
(1961) 1 SA 342
August 2005 Page 6

August 2005 Page 7

DECISIONS: OTHER
DISPUTE RESOLUTION
FORUMS
By Dorothy Khosa
Metal & Engineering Industries Bargaining Council, East London: MEEL152
Tharratt v Volume Injection Products (Pty) Ltd: Panellist Mar
Dismissal Probationary employee Employer presenting employee with new contract containing probationary
clause after agreeing to engage him permanently New contract repudiation of earlier agreement and constituting
dismissal.
Before commencing work with the respondent, the applicant received a letter confirming that he had been
accepted as a fulltime employee. On the day he reported for duty he was handed a contract, identical in all
respects to that set out in the earlier letter of appointment, save that it stipulated a three-months probationary
period. The applicant reluctantly signed the new contract. After two months, he received a letter informing him that
if he did not prove himself competent by the end of his probationary period, his services would be terminated. The
applicant responded by requesting further training. Later, the applicant was informed that his probationary period
would be extended by a month. Before the end of that period, his services were terminated on the ground of
alleged incapacity.
Noted: After a default hearing, the arbitrator noted that a person might be deemed an employee before he has
commenced working for the employer, provided that he has concluded a contract of employment. That being the
case, the first contract of employment could have been regarded. The respondent had repudiated that agreement
when it presented the second contract containing the probationary clause. However, the applicant had not objected
at that time. The applicant had signed the second contract only because he did not wish to get off to a bad start
with the respondent. That did not amount to duress.
Held: That the matter had to be decided on the basis that the probationary clause was valid.
Further held: That the Code of Good Conduct: Dismissal requires employers to determine periods of probation
before employees appointments are confirmed. That had not been done in the present case. Furthermore, the
respondent had not investigated the cause of the applicants alleged deficiencies. In spite of the warning that the
applicants services would be terminated at the end of his extended probationary period, he had been dismissed
before that date. The applicants dismissal was therefore unfair.
The applicant was awarded compensation equivalent to three months salary.
Case references
GIWUSA obo Nogaga v Cetronics Guard (2004) 1 BALR 30 (CCMA)
Jack v Director-General of the Department of Environmental Affairs (2003) 1 BLLR 28 (LC)
Woolworths (Pty) Ltd v Whitehead (2000) 6 BLLR 640 (LAC)
Wyeth SA (Pty) Ltd v Manqele & Others (2003) 7 BLLR 734 (LC)
Metal & Engineering Industries Bargaining Council, Johannesburg: MEGA2319
Mudge v Manhattan Mining Equipment (Pty) Ltd: Panellist Gunase
Dismissal Constructive Employee resigned after superior changed design to be submitted to client
Employers action not rendering employment intolerable Constructive dismissal not proved.
The applicant resigned after his superior altered a design he had prepared for submission to a client. The applicant
mentioned that he was unhappy with his basic salary. He further mentioned that he was dissatisfied with the
August 2005 Page 8
manner in which the respondent had dealt with black economic empowerment. The applicant claimed that he had
no other option but to resign, and that his resignation constituted a constructive dismissal.
Noted: That a constructive dismissal occurs when an employer drives an employee to a point where resignation is
the only reasonable option in the circumstances.
Held: That, although the applicants resignation letter had been prepared for him by the respondent, its terms
appeared accurately to reflect his intention at the time. The applicant had not been coerced into resigning.
Further held: That the applicant had attempted to bolster his case by adding complaints, which had no bearing on
his decision to resign. The true reason for that decision was the tiff over the design. However, the evidence
indicated that the design had been altered because the applicants original design did not satisfy the clients
specifications. Although the applicants resignation may have been a response to perceived grievances, it was an
expression of what he desired at the time.
The application was dismissed.
Case references
Amalgamated Beverages Industries v Jonker (1993) 14 ILJ 1232 (LAC)
Jooste v Transnet Ltd t/a South African Airways (1995) 5 BLLR 1 (LAC)
Miladys, a division of Mr Price Group Ltd v Naidoo & Others (2002) 9 BLLR 808 (LAC)
Pretoria Society for the Care of the Retarded v Loots (19997) 6 BLLR 721 (LAC)
Riverview Manor (Pty) Ltd v CCMA & Others (2004) 2 BLLR 177 (LC)
Smithkline Beecham (Pty) Ltd v CCMA & Others (2000) 3 BLLR 344 (LC)
Van der Riet v Leisurenet t/a Health & Racquet Club (1998) 5 BLLR 471 (LAC)
WL Ochse Webb & Pretorius (Pty) Ltd v Vermeulen (1997) 2 BLLR 124 (LAC)
High Court, Transvaal: 13636/03
Pretorius v Minister van Handel en Nywerheid: Judge Webster
Harassment Public servant claiming that employer harassed him by subjecting him to investigations and
suspending him No basis for claim.
The applicant, an inspector appointed in terms of the Usury Act 73 of 1968, lodged a number of grievances after
he was unable to conclude some of his investigations. A magistrate was appointed to investigate the applicants
complaints, and thereafter, submitted a lengthy report. The applicant referred the matter to his attorneys, and the
respondent decided to appoint another independent person to investigate his grievances. The applicant alleged
that he was subsequently harassed in a number of ways. These included, being suspended, being told that
disciplinary proceedings would be instituted against him, and being refused leave without any reason. He sought
orders inter alia interdicting the respondent from harassing him and subjecting him to investigations. The
respondent denied that the applicant had been treated unlawfully as alleged, or at all.
Held: That the applicants claims of harassment had to be viewed against the fact that he was an employee in a
hierarchical statutory organisation. The incidents of which the applicant complained were unconnected in time,
form or content. As an employer, the respondent had a right to decide, within the scope of its prerogative, how to
utilise the applicants labour. An element of subordination was inherent in the employment relationship. In addition,
the applicant was required by statute to work under the supervision, direction and control of the registrar.
Further held: That the applicant had no right to the orders sought. Furthermore, the applicant had failed to utilise
his internal remedies. The relief sought was accordingly premature and could not be sustained on that ground
alone.
The application was dismissed with costs, including the costs of the two counsels.
Case references
Aling & Streak v Olivier 1949 (1) SA 215 (T)
Colonial Mutual Life Assurance Society Ltd v MacDonalds 1931 AD 412
De Reuck v Director of Public Prosecutions, Witwatersrand Local Division & Others 2002 (6) SA 370 (W)
Diepsloot Residents & Landowners Association v Administrator, Transvaal 1993 (3) SA 49 (T)
Mhlongo NO v Minister of Police 1978 (2) SA 551 (A)
August 2005 Page 9

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
R v AMCA Services Ltd & Another 1959 (4) SA 207 (A)
Raymond v Abdulnabi & Others 1985 (3) SA 348 (W)
Setlogelo v Setlogelo 1914 AD 221
Smit v Workmens Compensation Commissioner 1979 (1) SA 51 (A)
Union Finance Holdings Ltd v IS Mirk Office Machines II (Pty) Ltd (2001) JOL7612 (W)
Metal & Engineering Industries Bargaining Council, Durban: MEKN868

Antoine v Kochs Cut & Supply: Arbitrator Lyster
Dismissal Substantive fairness Insubordination Employee expressing reluctance to perform work for which
he felt he was qualified Dismissal unfair.
The applicant, a welder, was dismissed after informing his supervisor that he could not perform work assigned to
him without the assistance of a qualified boilermaker. He claimed that he never did that particular work before
without assistance. However, he then decided to try it before he was told to go home pending disciplinary action
against him. The respondent conceded that no charges had been given to the applicant before his disciplinary
hearing, but claimed that he knew what the hearing was about.
Held: That, although the applicant had been charged with gross insubordination for failing to carry out the work
assigned to him, an incident in which the applicant had been taken to task for parking his car in a reserved bay had
loomed large in the respondents mind. That had influenced the approach of the manager concerned when he
learned of the applicants reluctance to perform the work. Since the applicant had decided to do the job before he
was given his marching orders, his initial reluctance could not be classified as gross insubordination.
Furthermore, the applicant was justified in regarding the instruction as unreasonable, because he was not trained
to perform it.
Noted: Turning to the relief, the commissioner noted that the incident demonstrated that the respondents senior
managers had all lost confidence in the applicant.
Held: That there was no point in ordering reinstatement, since the applicant bore some responsibility for the events
leading to his dismissal. It would also be unfair to the respondent to order the maximum compensation permitted
by the LRA.
The application was awarded compensation equivalent to eight months wages.
Case references
Armitage Shanks SA (Pty) Ltd v Mnisi (1994) 8 BLLR 4 (LAC)
NUM v Western Platinum Ltd t/a Western Platinum Mine (1996) 6 BLLR 771 (IC)
SACCAWU & Another v Shoprite-Checkers (1995) 12 BLLR 87 (IC)
August 2005 Page 10

18 TH ANNUAL LABOUR
LAW CONFERENCE
18TH ANNUAL LABOUR LAW CONFERENCE:
29 JUNE 1 JULY 2005 AT THE SANDTON CONVENTION CENTRE, JOHANNESBURG
By Lucky Moloi
TH
ST
The 18th Annual Labour Law Conference was held at the Sandton Convention Centre, in Johannesburg on the 29 th
of June to the 1st of July 2005. The theme of the conference was entitled: Brokering a fair deal. The conference
scrutinised whether the South African labour laws impact is managing to protect the rights of both the employers
and employees.
The conference was jointly organised by the Centre for Applied Studies (University of Witwatersrand), the Institute
of Development and Labour Law (University of Cape Town), and the Faculty of Law (University of KwaZulu
Natal), and convened by Butterworths, a member of the LexisNexis Group.
The Deputy Director-General of Labour Department gave the opening speech. Presentations were also given by
various guest speakers including; Dr. Ritva Reinikka, Mr. Tony Ehrenreich, Mr Jeremy Gauntlett SC, Mr. Tshepo
Mongalo, and Mr. Anton Steenkamp. The topics presented at the conference covered a broad spectrum of areas,
including global issues, such as:
The, World Bank Report: Doing business in 2005: Removing obstacles to growth.
Second-guessing the employer: Should the courts defer to business restructuring?
The impact of corporate law reforms on Black Economic Empowerment: Transformation of the workplace and
equity investment, and
Whither the Labour Courts. The future of the Labour Courts.
Various workshops were also held covering the Labour Relations Act, Basic Conditions of Employment Act,
HIV/AIDS, Employment Equity Act, executive dismissals, Protected Disclosures Act, Compensation for
Occupational Injuries and Diseases Act, unemployment, and labour law issues beyond the workplace. For the
benefit of our readers, selected presentations from the conference have been summarised in this publication.
August 2005 Page 11

18 TH ANNUAL LABOUR
LAW CONFERENCE
SOME CASES AND PRACTICAL EXAMPLES OF SEXUAL HARASSMENT IN THE WORKPLACE
Presented by Thandi Orleyn
Summarised by Dorothy Khosa
Orleyn in her presentation defined the concept sexual
harassment and the legislation that addresses it. She
also discussed examples of sexual harassment cases
in the workplace. Some of the cases raised the issue
of vicarious liability to the employer.
Sexual harassment is not only a legal issue but it is
also a practical problem. It is fraught with social
connotations that have subjugated women in the
workplace for decades. In most instances, women are
victims and men are perpetrators of sexual
harassment in the workplace. This does not mean that
men are not victims of sexual harassment. It is worth
noting that men are still ashamed to come forward to
report sexual harassment against them, be it
perpetrated by a man or a woman.
It is a general principle that the employer has a duty of
care to ensure that the workplace is an environment
free from sexual harassment. To ensure this, the
employer must appropriately communicate to
employees that sexual harassment would not be
tolerated. Where necessary, the employer must
educate and counsel employees with regard to the
workplace policies on sexual harassment. When
incidents of sexual harassment are brought to the
attention of the employer, decisive steps to address
the problem must be taken. The Employment Equity
Act (EEA) created delict for the employer for sexual
harassment in the workplace, which it is aware but has
failed to take the appropriate steps to eliminate.
What is Sexual Harassment?
The 1998 Code of Good Practice on the Prevention of
Sexual Harassment defined sexual harassment as
unwanted conduct of a sexual nature. The 2005
Code defined sexual harassment as unwelcome
conduct of a sexual nature that violates the rights of
an employee and constitutes a barrier to equity in the
workplace, taking into account all the following factors:
Whether the harassment is on the prohibited

grounds of sex and/or gender and/or sexual
orientation,
Whether the sexual conduct was unwelcome,
The nature and extent of the sexual conduct, and
The impact of the sexual conduct on the

employee.
Examples of sexual harassment in the Code include

unwelcome physical, verbal or non-verbal conduct,
such as unwelcome innuendoes, suggestions and
hints, sexual advances and comments with sexual
overtones.
Vicarious Liability of the Employer
The common-law doctrine of vicarious liability and
section 60 of the EEA, regulate the liability of an
employer for sexual harassment. The EEA also states
that the employer is not liable for the conduct of an
employee if it is able to prove that it did all that was
reasonably practicable to ensure that its employees
would not act in contravention of the Act. The purpose
of section 60 therefore is to penalise those that fail to
address equity in the workplace.
In terms of the common law doctrine of vicarious
liability, the victim must prove that:
A person who committed the act of sexual

harassment was an employee of the employer,
The person who committed the act of sexual
harassment committed a delict against the victim,
and
He/she did this while acting within the course and
scope of his/her employment.
Where there was a Previous Relationship

In Ahmod v Fire Appliances Limited (2004) 5 BALR
529 (MEIBC), the applicant, a technician, was
dismissed for pursuing a relationship with a female
colleague despite her indicating that his advances
were unwanted. The applicant and the victim of sexual
harassment had previously had a relationship, which
she had ended. The applicant had also previously
promised management that he would desist from
communicating with the victim. Of which he had failed.
The applicants dismissal for sexual harassment was
upheld.
August 2005 Page 12

Vicarious Liability Upheld

In the case of Media 24 Limited & Gasant Samuels v
Sonja Grobbler (SCA), the finding of the trial Court was
upheld. The Court held that Samuels had sexually
harassed Grobbler. It also addressed the question as
to whether the employer, in this case Media 24
Limited, was vicariously liable for the sexual
harassment. The Court held that the employer
negligently breached the legal duty owed to Ms
Grobbler to take reasonable steps to prevent her from
being sexually harassed in her workplace.
Reasonable steps by employer to avoid vicarious
liability
In Zimema v CCMA (2001) 2 BLLR 251 (LC), the
complaints of sexual harassment were brought to the
attention of the employer. The employer, after
consulting the relevant parties, took necessary steps to
eliminate the alleged conduct. An apology was elicited
from the perpetrator and he promised to desist from
such conduct. The perpetrator was dismissed after
resuming the alleged conduct. In these circumstances
vicarious liability would not attach to the employer as it
had done all that was reasonable practicable to ensure
that the employee did not contravene the EEA.
Verbal Sexual Harassment
The case of PSA obo Ferreira & Another v Department
of Labour (2004) 8 BALR 1001 (JPSSBC) addressed
the issue of verbal sexual harassment. In this case,
lewd comments and remarks were made to a female
employee and had sexual reference. As a result of the
comments she felt distressed and traumatised and
required medication and counselling from both a
psychiatrist and a psychologist.
Verbal sexual harassment was prohibited in terms of
the employers policy and the relevant code of good
practice. The arbitrator found that the comments were
unwelcome and had a negative effect on the female
employee. The manner in which they were made
constituted sexual harassment. The dismissals of the
employees who had made those comments were
found to have been substantively fair.
Gender Based Perceptions of Sexual Harassment
Orleyn stated that a male employee was alleged to
have sexually harassed his supervisor, a woman. The
chairperson of the disciplinary inquiry was a woman.
After the matter was heard she found the man guilty
and dismissed him. The alleged perpetrator then
lodged an appeal. A male was appointed to hear the
appeal. The man overturned the decision of the
chairperson of the disciplinary hearing, finding the
alleged perpetrator not guilty. Orleyn mentioned that
what became clear to her in that case was the
approach adopted by men and women relating to

sexual harassment and how one defines it. It also
indicated the perception that people have of sexual
harassment and how it impacts on people based on
gender and race.
When a man can be framed
One of the senior managers was accused of sexually
harassing a secretary in his department. Orleyn
mentioned that she personally investigated the
allegations. She met the alleged perpetrator, as well as
the alleged victim with her husband. Witnesses were
also interviewed. Only the alleged victim and her
husband alleged that sexual harassment had taken
place. None of the witnesses corroborated the alleged
victims allegations against the alleged perpetrator. On
the basis put before Orleyn, she concluded that there
was no basis to charge the alleged perpetrator. The
case clearly brought to her mind that there are
possibilities where women could try frame men on
sexual harassment charges.
Instances where the alleged Perpetrator is not an
Employee
Orleyn also personally investigated an alleged sexual
harassment incident perpetrated by a guest at the
company. After putting the allegations to the guest, a
detailed statement from him denying all the charges
levelled against him was received. Having considered
both the statement from the alleged victim and from
the alleged perpetrator, it was concluded that there
was no conclusive evidence of sexual harassment
and, in any event, the employer could not take the
matter any further.
Orleyn stated that based on her experience and the
aforementioned cases, investigators and chairpersons
of sexual harassment allegations have to adopt a very
cautious yet objective approach.
The following are some of the broad guidelines that
Orleyn had adopted:
Guard against over-empathising with either the

alleged victim or the alleged perpetrator,
Take the social, cultural and psychological
background of both the alleged victim and
perpetrator into account,
Bear in mind that each alleged victim's perception
of what constitutes sexual harassment may be
different,
Take the known historical background of the
alleged victim and the alleged perpetrator into
account,
Consider all the circumstances surrounding the
allegations,
August 2005 Page 13

Where possible, obtain representations of

employees who know either or both of the alleged
victim and alleged perpetrator,
Consider whether a reasonable person in the
same circumstances as the alleged victim would
have construed the actions of the alleged
perpetrator as being sexual harassment,
Consider whether a reasonable person in the
same circumstances as the alleged perpetrator
would have acted in the manner that he or she
allegedly did, and
Above all, these considerations should always
keep the objective definition of sexual harassment
in context.
As part of her conclusion, Orleyn argued that based on

the definition of sexual harassment and the
jurisprudence that had emerged, there was clear
guidance on how employers should address such
cases. Systems and policies should be put in place to
deal extensively with the prevention and management
of sexual harassment and employers should give clear
guidelines and direction to managers.
Reference
Orleyn, T. 2005. Some Cases and Practical
Examples of Sexual Harassment in the Workplace.
Presentation made at the 18th Annual Labour Law
Conference, 29 June 01 July 2005. South Africa.
18 TH ANNUAL LABOUR
LAW CONFERENCE
Termination by operation of law Bypassing the unfair dismissal provisions of the Labour Relations Act.
Presented: Tamara Cohen
Summarised by Tshidi Letsoalo
Cohen focused on the issue of termination by
operation of law, thus bypassing the unfair dismissal
provisions of the Labour Relations Act (LRA). In her
introduction, she unpacked the definition of dismissal
according to section 186 (1) (a) of the LRA. However,
she further made note that not every termination of an
employment contract constitutes a dismissal. A number
of scenarios exist where an employment contract
terminates by operation of law. Automatic terminations
in terms of the Public Service Act 103 of 1994,
Educators Act 76 of 1998, and Insolvency Act 24 of
1998, termination by effluxion of time in the case of
fixedterm contracts or attainment of normal or agreed
retirement age, or termination due to impossibility of
performance all constitute termination that does not
necessarily constitute dismissal according to the LRA.
The paper examined the scope of these statutory and
contractual provisions and their effect on an
employees right to protection against unfair dismissal
and their constitutional right to fair labour practices.
A virtually identically worded section 14 of the

Educators Act 76 of 1998 provides that an educator
appointed in a permanent capacity who is absent from
work for a period exceeding 14 consecutive days
without the permission of the employer shall, unless
the employer directs otherwise, be deemed to have
been so discharged from service on account of
misconduct.
1.
Automatic terminations in the public
service
These cases were referred to:
According to section 17 (5) of the Public Service Act of

1994 an officer who absents himself or herself from his
or her official duties without permission of his or her
head of department, office or institution for a period
exceeding one calendar month, shall be deemed to
have been discharged from the public service on
account of misconduct.
The effect of these statutory provisions is that,

provided the stipulated requirements are satisfied, the
employment contract terminates by operation of law.
As this termination is triggered by the occurrence of an
event and is not based on an employers decision,
there is no dismissal as contemplated by section 186
of the LRA. Whether the requirements of the statutory
provision are satisfied is objectively determinable and
should a factual dispute arise in this regard, such as
the reasons for the employees absence, such dispute
is justifiable in a court.
o
o
o
o
o
Nkopo v Public Health and Welfare Bargaining

Council and Others,
MEC, Public Works ,Northern Province v CCMA,
Hospersa v MEC for Health,
Motsamai v Department of Public Safety, Security
and Liason, and
Rikhotso v MEC for Education.
August 2005 Page 14

Furthermore regulation 10(5)(a)(i)(ii) of the Regulations

for the South African Police Service provides that in
the event of an employee failing to appear at a
disciplinary hearing on any date to which the
disciplinary hearing has been postponed the employee
shall, from the date of such failure to appear, be
deemed to be suspended without any salary, wages
allowance, privileges or benefits and the presiding
officer concerned shall postpone the disciplinary
hearing indefinitely. The case between Lebese and
South African Police Services was referred to.
2.
Desertion in the private sector
Desertion occurs when an employee absconds from

the workplace, with no intention of returning. In the
context of desertion the issue arises whether the
deserting employee terminates the employment
relationship and effectively constructively resigns by
such conduct or whether the employer terminates the
employment relationship by acting upon the desertion.
If the termination is as a result of the employers
conduct it will constitute a dismissal in terms of the
LRA and require compliance with substantive and
procedural fairness. If the act of terms of desertion
brings about the termination of the employment
contract it will not constitute a dismissal.
This issue was addressed in the case between SABC
v CCMA & Others and in the case of SACWU v Dyasi.
In the private sector it would appear that an employer
faced with a deserting employee is required, where
possible, to hold an enquiry before terminating the
employment relationship.
3.
Deemed dismissals in terms of the
Insolvency Act
24 of 1936
Prior to the 1 January 2003, section 38 of the
Insolvency Act provided for the automatic termination
of employees contracts of employment on the date of
the sequestration or liquidation of the employer,
subject to the right to claim common law damages for
losses sustained. In the case between National Union
of Leather Workers v Barnard NO & Another the Court
held that the action in invoking the voluntary windingup gives rise to the application of section 38
constituted a termination of the employment contract.
The position the Court noted, would be entirely
different in the case of a compulsory winding-up as in
that scenario the Court has a statutory discretion
whether to grant the order or not.
However, section 38 of the Insolvency Act has, in
2003, been amended to provide that the contracts of
employment of an employee whose employer is
sequestrated are suspended, as opposed to being
terminated, from the date of the sequestration. While a

terminated employee is entitled to claim compensation
from the insolvent estate for losses suffered as well as
severance pay, if the contract terminates by operation
of law it is doubtful whether a terminated employee
would have any claim for unfair dismissal in terms of
the LRA.
4.
Termination by effluxion of time
A prime example of a terminated contract not

constituting a dismissal is the lapse of a fixed-term
contract. Such contract terminates solely by effluxion
of time and is not terminated by the employer, thereby
circumventing the protection afforded by section 186
(1) (a). Only in the event of the non-renewal of a fixed
term contract n circumstances where the employee
had a reasonable expectation of renewal, can an
allegation of dismissal be made in accordance with
section 186 (1)(b) of the LRA. Similarly the termination
of employment as a result of an employee reaching
normal or agreed retirement age will not constitute a
dismissal.
The employment contract is deemed to have
terminated due to effluxion of time. Such was
confirmed in the case between Schmahmann v
Concept Communications Natal (Pty) Ltd.
However, in Schweitzer v Waco Distributors the Court
concluded that as the termination of a contract of
employment by effluxion of time is not contemplated in
the definition of dismissal, the dismissal referred to in
section 187(2)(b) must refer to a dismissal that takes
place after the employee has gone past the agreed or
normal retirement age.
5.
Termination due to impossibility of
performance.
In terms of common law principles of contract, a
contract terminates automatically when it becomes
permanently impossible to perform the terms of the
contract, due to a no fault of the party. In the context of
an employment contract impossibility of performance
will result in the automatic termination of such a
contract and will not constitute a dismissal. This may
include physical impossibility such as acts of nature for
example the illness or death of an employee, acts of
state such as the imprisonment or conscription of an
employee, or acts of third parties such as strikes that
prevent an employee from working or an employer
from providing employment. It may also include legal
impossibility such as a statutory requirement that
prohibits an employee from working.
Findings of legal impossibility were made in the
following cases:
August 2005 Page 15

o
o
o
FAWU obo Meyer v Rainbow Chickens,

Themba v Springbok Patrols, and
Norval v Vision Centre Optometrists.
Impossibility must be absolute and must not be

attributable to the fault of either party. Thus in the
CCMA award of Maila v Pieterse it was held that the
termination by an employer of the contract of service of
an employee whose work permit had expired did not
constitute a dismissal.
6.
Deemed
provisions?
dismissals
draconian
The right to a procedurally fair dismissal espoused by

section 188(1) of the LRA of 1995 guarantees
employees an independent right to fair process prior to
dismissal. The requirements of procedural fairness are
founded upon the fundamental tenets of natural
justice. Natural justice is an administrative law concept
that focuses on the process by which a decision is
reached and is based primarily on the fundamental
maxim audi alteram partem.
A literal interpretation of the deeming provisions
contained in the Public Service Act, Educators Act,
SAPS Regulations and Insolvency Act that provide for
the automatic termination of employment contracts,
results in the protections afforded by the LRA being
circumvented. Similarly the automatic termination of an
employment contract by operation of the common law
principles of impossibility of performance enables the
dismissal provisions of the LRA to be bypassed. By
depriving an employee of fair process these provisions
appear to conflict with the purpose and ethos of the
LRA and an employees constitutional right to fair
labour practices. Furthermore legislation must be
purposively construed in order to give effect to the
Constitution and legislation that is capable of two
conflicting interpretations should be given the meaning
that best accords with the Constitution, unless there is
clear legislative intention to the contrary.
The deemed dismissal of an employee not only flies in
the face of the basic principles of natural justice and
the ethos of the LRA, but also infringes the
constitutional right to fair labour practices, unless such
limitation can be shown to satisfy the constitutional
limitation clause. As a result, these draconian statutory
and contractual provisions should be relied upon with

caution and only where an employer has no other
fairer alternative.
Conclusion
Termination by operation of law will not constitute a
dismissal within the meaning of section 186 of the LRA
and the terminated employee will not be able to
challenge the termination through the structures and
protections afforded by the LRA. Such deprivation of
the protection afforded by the LRA against unfair
dismissal may breach the employees constitutional
rights to fair labour practices if it cannot be justified in
accordance with the constitutional limitation clause. In
order to avoid such conflict and offer the intended
protection to a discharged employee it is submitted
that a purposive approach should be adopted in
interpreting these statutory and contractual provisions.
The purpose of s17(5) of the Public Service Act and
s14 of the Education Act is to enable public service
employers to discharge deserting employees that
cannot be located. Employees that can be located
should be dealt with in terms of the employers
disciplinary codes and procedures. Only in the event of
the disciplinary code having no application should
resort be had to these draconian measures provided
for. Similarly the purpose of the deemed dismissals
arising out of s38 of the Insolvency Act is to facilitate
the termination of employees once all attempts at
consultation have failed.
The common law principles of impossibility of
performance are intended to provide a contractual
remedy to employers and employees that face
situations of absolute or permanent impossibility of
performance of the terms of the contract. Other than
these extreme situations where the decision to
terminate is removed from the employers discretion
and the contract terminates by operation of law, the
termination of employees contracts of employment
should satisfy the fairness requirements of the LRA.
Reference
Cohen,T. 2005. Termination by operation of law
bypassing the unfair dismissal provisions of the
Labour Relations Act. Presentation made at the 18th
Annual Labour Law Conference 29 June 01 July
2005. South Africa.
August 2005 Page 16

18 TH ANNUAL LABOUR
LAW CONFERENCE
Case Update: Individual Employment Law
Presented by: Professor Alan Rycroft,
Summarised by Tshidi Letsoalo
In her introduction Professor Rycroft explained the
very nature of case updates and indicated that she has
tried to assemble cases that were significant and some
of which were interesting in the hope that they would
provoke debate.
between National Bargaining Council of the Leather

Industry of South Africa and Balluci Footwear &
Others.
1.
The Employer Employee- Relationship
1.1
Trying to avoid being an employer
Can a company hide behind the decision of its

shareholders and say that it (the company) did not
dismiss a director, but rather it was the decision of
shareholders in terms of Company law? The issue
arose in the case PG Group (Pty) Ltd v Mbambo NO &
Others (2005) 1 BLLR 0071 (LC). The board of the
holding company and sole shareholder of the employer
company terminated a financial directors services as
She mentioned that many employers find their

employment law obligations onerous and may have
gone the outsourcing route to avoid the complications
of the law. The example she gave was in the case
1.2
Is a director an employee?
August 2005 Page 17

director. The employees services were terminated

when he was given notice in terms of the companys
articles of association, (requiring that he resign as
director). He referred a dispute about an alleged unfair
dismissal and sought reinstatement.
The Labour Court held that neither the Labour
Relations Act, nor the Companies Act specifically
precludes a director from enjoying the protection of the
LRA. The fact that a person is a director of a company
does not necessarily mean that he or she cannot also
be an employee in terms of the LRA. However, the
Court said that in the light of the dual capacities in
which a director holds office, it is questionable if
directors are entitled to reinstatement.
2.
The Employers Vicarious Liability
2.1
Liability for drivers to a funeral
The Court held that it had a duty to maintain a balance

between imputing liability without fault (which runs
counter to general legal principles) and the need to
make amends to an injured person who might
otherwise not be recompensed. In this case the Court
said that everything points to the three policemen
being motivated by nothing more than self-gratification.
Acting in concert, they deviated from their functions
and duties as policemen to such a degree that it
cannot be said that in committing the crime of rape
they were in any way exercising those functions or
performing those duties. The employer was held not to
be liable to pay compensation. However, when this
case came before the Constitutional Court ORegan J,
writing for a unanimous Court, held that the Minister
was liable and upheld the appeal with costs.
2.3
There is a basic principle in employment law that the

employer is liable for the wrongs committed by its
employees in the course and scope of their
responsibilities. It is referred to as vicarious liability. In
MEC for Department of Public Works (Eastern Cape) v
Faltein (2005) 26 ILJ 49 (SCA), the Court had to
decide if the employer was liable for damages suffered
in a bus belonging to the employer as a result of the
negligent driving by an employee. The Court noted that
another person other than the authorised driver drove
the passengers home when the accident occurred.
The Court however, held that when the unauthorised
driver - also an employee - took over the driving, he
was doing exactly what the authorised driver was
instructed to do, and it followed that he was acting
within the course and scope of his employment. The
employer was therefore liable.
2.2
Is an employer vicariously liable for rape

by an employee?
In Kern v Minister of Safety and Security (2004 SCA),

a young woman went to an all-night shop at a petrol
station to telephone her mother to ask her to come and
fetch her. A police vehicle, occupied by three
policemen, pulled into the petrol station. They were all
in uniform and all enjoyed the rank of sergeant.
The one entered the shop and, on overhearing the
womans request to use the telephone, offered to give
her a lift home. She accepted, climbed into the car and
sat in the back. Later, despite her resistance she was
overpowered and forcibly raped by each of the
policemen in turn. When they had finished they drove
off leaving her to find her own way home. The
policemen were sentenced to life imprisonment for
rape and 10 years imprisonment for kidnapping.
Vicarious liability for sexual harassment
In Grobelaar v Naspers Bpk en n Ander the Supreme

Court of Appeal upheld the finding by the trial court
that Samuels had sexually harassed Mrs Grobler. It left
open the question as to whether Media 24 Limited was
vicariously liable for the harassment because it found
that Nasionale Tydskrifte Limited, for whose
obligations it had assured liability, had negligently
breached the legal duty it owed Mrs Grobler to take
reasonable steps to prevent her from being sexually
harassed in her working environment.
3.
Termination
relationship
3.1
of
the
employment
Dismissal and pregnancy
In Wardlaw v Supreme Mouldings (Pty) Ltd (2004) 25

ILJ 1094 (LC), an employee, on her return from
maternity leave, was dismissed for gross negligence
and a gross dereliction of duty. She alleged this was
really about her taking maternity leave and, even if
there had been negligence, there had been no
corrective discipline taken. The employer led evidence
that the employees negligence and inadequacy in
critical areas of her work only became apparent when
she went on maternity leave. The Court accepted that
this evidence had established that the dismissal was
not a vindictive reaction to her maternity leave and the
inconvenience of her absence at a time of severe
administrative pressure. There was no factual
causation between her pregnancy, and it was not even
the proximate cause, and her dismissal was therefore
not an automatically unfair dismissal.
3.2
Retrenchment during a strike
Section 67(5) of the LRA makes provision for dismissal

for operational reasons during a strike. This is not a
common course of action but did arise in NUMSA &
others v Dorbyl Ltd & Another (2004) 25 ILJ 1300 (LC).
August 2005 Page 18

The dismissals were held to be substantively fair

because of a flawed consultation process. The Court
found that the dismissal was procedurally unfair,
awarding two months compensation to each
retrenched employee.
3.3
The disciplinary code v the alcohol policy
Most disciplinary codes regard drunkenness as a

serious act of misconduct, often justifying dismissal. At
the same time many enlightened employers have
adopted policies which recognise that alcoholism is a
disease which needs to be treated, not dealt with in
terms of disciplinary code. What happens if an
employer does not use the alcohol policy and
proceeds only in terms of the disciplinary code? This
happened in Black Mountain v CCMA & Others (2005)
1 BLLR 0001 (LC).
3.4
Consistency in disciplinary sanctions
The decision in Consani Engineering (Pty) Ltd v

CCMA & Others (2004) 25 ILJ 1707 (LC) dealt with the
issue of consistency. The company had been
experiencing significant stock losses through theft by
employees and notified employees that it was adopting
a zero-tolerance approach to theft. An employee was
caught in unauthorised possession of a roll of rubber
tape. Despite the tape being scrap, the employee
expressing remorse and being a sole breadwinner, the
company dismissed him in terms of the zero-tolerance
policy. The CCMA commissioner found the sanction
too severe and reinstated him. The Labour Court
recognised that many would regard the sanction of
dismissal for a single act of irrationality to be too harsh,
but said that the Court was required to assess the
justifiability of the sanction in the light of the
employers entitlement to set its own standards of
conduct in the context of that business. The court
upheld the dismissal.
3.5
Age discrimination and the normal
retirement age
becomes a normal retirement age when employees

have been retiring at that age over a certain long
period. If the period is not sufficiently long but the
number is large, it might still be that a norm has not
been established. The Court said that there was only
one remedy open to the employer where employees
refused to agree: to lock them out until they agreed.
3.6 When is incapacity disability?
The arbitrator, in the case, NEHAWU on behalf of
Lucas and Department of Health (2004) 25 ILJ 2091
(BCA), ordered the employee to submit to the
examination of a qualified independent occupational
therapist who was required to give a clear and
unambiguous opinion to enable the department to
make an informed decision. If the therapist considered
the employee could return to work with reasonable
accommodation, the employer was ordered to
reinstate the employee
3.7 Work-related Stress
The decision in Bennett and Mondipak (2004) 25 ILJ
583 (CCMA) requires employers to take a re-think on
work-related stress. After corporate restructuring the
employee assumed greater responsibilities and then
suffered two nervous breakdowns, involving
hospitalisation and psychotherapy, and being booked
off work indefinitely. The employee was offered
alternative positions but he refused. Fearing a further
relapse, the employee terminated his services for
incapacity. The commissioner found that where an
employee is capable of performing the work, an
employer has an obligation to adapt the work after fully
investigating the issues which gave rise to the stress,
The employer had to consider whether the stressors
could be removed. Until this is done, the offer of an
alternative position is premature and the employees
refusal to accept them did not warrant a negative
inference.
3.8
In Rubin Sportswear v SACTWU & Others (2004) 25

ILJ 1671 (LAC), the Court held that a certain age
cannot suddenly become the normal retirement age for
employees or for a certain category of employees
simply because the employer wakes up one morning
and decides that he wants a certain age as the normal
retirement age for his employees or for a certain
category of his employees. What the employer can do
is put a proposal to his employees on what should be
an agreed retirement age in that workplace. If there is
agreement it will be applicable to all those who have
agreed to the proposal.
But what if there is no agreement? The Court said that
a retirement age that is not an agreed retirement age
Dealing with shrinkage and theft
One of the enduring problems for employers in the

retail trade is how to deal with shrinkage and theft,
particularly by employees. Another recent CCMA
award in the case of SACTWU obo Baatjies & others
and Pep Stores (2004) 25 ILJ 632 (CCMA) indicates
the issue is far from resolved. The commissioner
rejected the employers argument that it was sufficient
for the employer to prove that the entire staff accepted
collective responsibility for curbing stock losses, and
that stock losses had occurred. On the facts, the
commissioner found that the dismissal were
substantively fair because there was undisputed
evidence that conditions in the store were not up to
standard and this led to stock losses. There was
August 2005 Page 19

evidence that the employees had neglected their

responsibilities and this had contributed to
unacceptable stock losses.
4.
Changing conditions of employment
4.1
Restructuring for greater profitability
Our courts have once again had to consider the

situation where the employer wants to restructure for
greater profitability and in the process retrenches
workers. In General Food Industries Ltd v Fawu (2004)
25 ILJ 1260 (LAC) the Court upheld the principle that a
company is entitled to insist on economic restructuring
that a profitable centre becomes even more profitable.
This includes the need for flexibility in the employees
terms and conditions of employment in order to be
competitive.
The case of National Union of Metalworkers of South
Africa v Fry's Metals (Pty) Ltd has been working its
way through the courts for 5 years, finally reaching the
Supreme Court of Appeals. The Labour Court granted
the interdict in this regard, but the LAC set it aside,
holding that dismissals concerning terms and
conditions of employment were specially protected
only where the employer used dismissal as a tool to
compel employees to agree to changes. Where the
dismissal was final, and intended to be final, the
employer was empowered to dismiss provided it could
show justification for operational reasons. The LAC
judgment in effect enhanced employers power of
dismissal in disputes about terms and conditions of
employment.
The Supreme Court of Appeal has upheld the LAC
finding.
5.
Promotion Disputes
5.1
When is a promotion a promotion
In the case of the Department of Justice v CCMA &

Others [2004] 4 BLLR 297 (LAC), the Court held that
disputes concerning appointments or promotions are
disputes concerning the right of applicants to be
treated fairly, and are thus about claims for rights. The
Court further held that the unfair labour practice
section was not confined to disputes concerning
conduct relating to promotion, and so did not exclude
disputes concerning whether the employee should
have been promoted.
5.2
In an appointment and promotion

dispute, is it necessary to join the
successful candidate who has been
awarded the post?
In a dispute arising from a promotion or appointment,

the arbitration or litigation will involve the unsuccessful
applicant for the job and the employer. But what about
the rights of the successful applicant if the judge or
arbitrator finds that the appointment was discriminatory
or grossly unreasonable? Does the successful
applicant have to be joined in the dispute? This issue
arose in PSA v Department of Justice & Others [2004]
2 BLLR 118 (LAC).
6.
Procedural Matters
6.1
Grounds for Review
When the arbitration award goes against us we are

very unhappy, especially when we thought our case
was watertight. If we rush off to the Labour Court to
have the decision reviewed, will the judge set the
award aside if we can persuade her/him to replace the
judges conclusions with that of the arbitrators? In
Universal Product Network (Pty) Ltd v CCMA & Others
[2004] 11 BLLR 1167 (LC), the principles of when a
judge will set aside an award are spelt out. An
arbitrators award will not be reviewed by a judge
merely because the review judge would have come to
a different conclusion had a judge been sitting as an
arbitrator. The judge, if satisfied that the arbitrator
considered all the facts, and applied relevant legal
principles, must not review and set aside an award
merely because the judge is of the opinion that the
arbitrators conclusions are incorrect or different to
those he/she would have reached.
7.
Miscellaneous
7.1
Whistle-blowing
The Protected Disclosures Act of 2000 was passed to

protect employees who make disclosure in specific
circumstances about impropriety at the workplace.
But as will be seen, to get the status of a protected
disclosure, the courts are stipulating that certain
requirements have to be met. In CWU & Another v
Mobile Telephone Networks (Pty) Ltd [2003] 8 BLLR
741 (LC) an employee accused his superiors of giving
preferential treatment to a particular temporary
employment agency from which it hired workers. The
employee was subsequently suspended for alleging
that the management was corrupt, and summoned to
attend a disciplinary hearing.
The employee launched an urgent application for an
order compelling the employer to lift his suspension
and stop the disciplinary action against him, arguing
that these actions constituted an occupational
detriment under the PDA. The Court held the
employees allegations did not convey information they were merely expressions of opinion without a
August 2005 Page 20

factual basis. The application was dismissed with

costs.
7.2
Lies and videotape
The trend towards surveillance cameras in cities,

streets and work premises raises the question of
whether videotapes are admissible as evidence of
alleged misconduct. The issue arose in Moloko v
Commissioner Diale & Others (2004) 25 ILJ 1067
(LC). The employee took on review the CCMAs
decision to admit the video as evidence. The Labour
Court found that the video recording was so poor that it
could not identify any person being assaulted and
consequently, the commissioner had committed a
gross irregularity in relying on the video. At the same
time the Labour Court gave guidance on the admission
of video evidence.
Where an employee denies that the video depicts what

it purports to depict, the employer must establish (a)
that the recording device was capable of taking the
testimony, (b) that there were no changes, additions or
deletions made to the recording, (c) that on the
evidence as a whole there existed no reasonable
possibility of interference with the recording, (d) that
the recording related to the occasion to which it was
alleged it related and to no other. In other words, the
video has to be authenticated before it is admissible as
evidence.
Reference
Rycroft, A. 2005. Case Update: Individual
Employment Law. Presentation made at the 18th
Annual Labour Law Conference 2901 July 2005.
South Africa.
August 2005 Page 21

18 TH ANNUAL LABOUR
LAW CONFERENCE
The Protected Disclosures Act: Whistle-blowing As A Corporate Governance Tool To Deliver
Organisational Accountability
As presented by Lorraine Stober of the Open Democracy Advice Centre
Introduction
Out of the ruins of a despotic, corrupt state we have, in
a decade, constructed a nation with institutions and
values that took other people decades and centuries to
mould. The trick is to make these institutions and
values work, and not let them buckle under pressure.
We will know the resilience of our democratic
infrastructure only when we face challenges like the
current one.
How The Protected Disclosures Act Came About
Brief Overview
The Open Democracy Campaign Group worked hard
in lobbying for the Open Democracy Bill. A flaw of the
bill was that it only applied to the private sector. The
Campaign Group worked hard to get it extended to the
private sector as well. The 1998 National Anti
Corruption Summit issued a resolution supporting the
Bill as a basis of a national strategy to fight corruption.
Around this time Richard Calland and Lalla Camerer of
the Campaign group met Guy Dehn who heads Public
Concern at Work(PCaW) in London. PCaW is a charity
which provides training for companies and the public
sector to help them install and implement
whistleblowing policies. It also runs a whistleblowing
legal advice help-line. Dehn and Calland made
submissions to Advocate Johnny de Lange,
Chairperson of the Justice Committee and the U.K.
law, the Public Interest Disclosures Act was used as a
basis for the Protected Disclosures Act which was
passed in 2000.
The Birth Of The Open Democracy Advice Centre
At the end of 1999, Calland and Camerer approached
Joseph Rowntree Charitable Trust with the idea of
setting up a specialist centre. A start up grant was
offered and The Open Democracy Advice
Centre(ODAC) came into being with Richard Calland
as the Executive Director and Alison Tilley as the
Centre Manager. ODACs areas of work focus on the
Protected Disclosures Act and the Promotion of
Access to Information Act.
ODACs Role With Regard To The Protected

Disclosures Act
Objectives
The main aim of the project is to promote open and
transparent democracy, foster a culture of corporate
government accountability and assist people to realise
their human rights through supporting the effective
implementation of a law that enables disclosures of
malpractice in the public and private sector.
The most specific objective of the project is to assist
employees and employers by advising and training
them about whistle-blowing legislation and practices.
Implementation
HELPLINE
The toll free whistle-blowing help-line was established
in September 2002. The help-line assists employees
who want advice on how to safely raise concerns of
malpractice in the workplace. It also assists employers
who are serious about creating a culture where
whistle-blowing is done responsibly and without fear.
The help-line adviser not only explains the rights and
duties stipulated in the Protected Disclosures Act but
also assists the callers with looking at their concerns
and their situations as well as offering them ongoing
support during the whistle-blowing process. By offering
free legal advice, ODAC seeks to help individuals deal
with the difficult choices they face when deciding
whether to blow the whistle or remain silent. The tollfree number is 0800 52 53 52 or e-mail:
webmaster@opendemocracy.org.za
ADVOCACY AND TRAINING
The group monitors and advocates effective
implementation of the law and provides training for
unions and employers in both the public and private
sectors. Last year submissions were made to the
South African Law Reform Commission with regard to
August 2005 Page 22

their issue paper on the Protected Disclosures Act.

Changes we are lobbying for include;
Extending of the ambit of the PDA to include
non employees in the workplace e.g.
independent contractors, volunteers etc.,
Protection from defamation action,
Claiming damages that they can prove
without a ceiling,
Identity protection,
A duty to investigate a disclosure,
Interdictory relief, and
An open ended definition of occupational
detriment.
Training workshops on whistle-blowing and the
Protected Disclosures Act are conducted for the public
and private sectors and civil society. The training
consists of interactive workshops with employers and
employees both in the public and private sectors to
promote the Protected Disclosures Act as well as
encouraging employers to foster a culture of good
ethics practices.
We have published articles in newspapers, magazines,
done radio interviews and our most recent publication
with the financial assistance of the British Council is a
whistle-blowing book, called Whistle-blowing around
the World, Law, Culture and Practice edited by Richard
Calland and Guy Dehn.
On the down side, the reception from the business

sector has been mediocre. They have not yet
embraced this culture of creating structures to support
a strong ethical environment.
Conclusion
We need to make the out reach component of the
project more effective, working through labour unions
to train and support employees. In this way workers
themselves will be made aware of their statutory rights
in order to be able to report misconduct in a proper
manner and thereby be able to enjoy the rights
guaranteed under the Act.
Employers must be trained to implement a viable
whistle-blowing policy that allows employees to raise
concerns without fear of reprisal.
A key requirement is that the organisation must work
towards strengthening the political will to confront a
culture that scorns whistle-blowers.
Reference
Stober, L. 2005. The Protected Disclosures Act:
Whistleblowing As A Corporate Governance Tool
To Deliver Organisational Accountability.
Conference- 29 June 1 July 2005 South Africa.
August 2005 Page 23

18 TH ANNUAL LABOUR
LAW CONFERENCE
BRUSSELS SPROUTS OF EQUITY
Presented by Jeremy Opperman
Summarised by Dorothy Khosa
In his presentation, Opperman discussed the issue of
disability equity in South Africa. He further discussed
several key mechanisms that were created to aid
employers in trying to increase the employment levels
of people.
Disability Equity
Unlike race and, to a lesser extent gender, disability
has been inadequately addressed in terms of the
designated groups highlighted within the Employment
Equity Act (EEA). In order to understand the concept of
disability, one must respond to the following:
What is disability?
Is it something associated with individuals
afflictions only?
Is it rather to do with the interrelationship
between people with disabilities and the
society? Or
Why is it that, although almost everyone will
admit that disability is an undeniable
disadvantage, very few are prepared to
really go into too much depth about how to
address the social-equity imbalances that
affect it?
To begin to answer and address these questions, one

should point out that not enough is known about
disability, in order to make informed decisions that
might affect and implicate it. This is in itself not
surprising, if one has to reflect on how few South
Africans have actually worked side by side with
persons with disabilities, or, how many people
attended school or universities with learners with
disabilities. The response is that, very few people.
Opperman stated that these are the most socially

interactive times of our lives, where else are we likely
to meet, interact with and know people with disability.
Disability is still regarded as something of an oddity
and novelty in commercial South Africa, implying both
employees and consumers. This in turn results in
wholesale ignorance and often a lack of consideration
of the realities of what is in fact a perfectly natural
global phenomenon. Much energy has been spent on
attempting to decode this mystery, that is disability, in
theory.
Key Mechanisms: Increase the Employment Levels
of Persons with Disabilities
Several key mechanisms were created to aid
employers in trying to increase the employment levels
of persons with disabilities. These include the
following:
The Integrated National Disability

Strategy (1997). In conjunction with the very
progressive Constitution, forms an in-depth,
overarching policy document,
The Employment Equity Act (1998). Very
clearly spelled out key designated groups, in
particular, race, gender and disability, which
require attention in terms of more equitable
representation in the world of employment,
The Code of Good Practice on Disability
(2002). It was released to answer the
technical definition of disability offered by the
EEA,
The Technical Assistance Guide (2003).
Sought to unpack and clarify many of the
issues touched on by the Code.
August 2005 Page 24

These policies, codes and guides, together with

legislation, such as the EEA and Promotion of Equality
and Prevention of Unfair Discrimination Act, should
provide foundations upon which to facilitate the natural
and unhesitant integration of disability into society.
However, the reality is very different, and one that is
relatively unchanged from the past even prior to 1994.
Despite formidable battery of non-discriminatory
legislation and policies, disability remains the most
disadvantaged of minority groups in South Africa.
In terms of compliance, corporate South Africa has
spent considerable resources and energy addressing
the first two designated groups, that is, race and
gender, but has left disability practically untouched.
Opperman stated two opinions concerning this. Firstly,
what is surprising is how seldom the personal factor is
appreciated. The undeniable possibility that disability
could either gradually or instantly affects anyones
lives or the lives of those near them. This makes
disability uniquely personal in diversity terms. To
expand this thought somewhat one needs to
appreciate that it is impossible for a man for instance
to truly relate to experiences of a woman. However, it
is perfectly feasible for either group to relate to
disability, since it could struck anyone at any time
regardless of race, sex, creed and social standing.
The second component that needs to be identified and

highlighted is the business case. The fact that poor
or not, uneducated or not and unemployed or not;
disability is a consuming citizen. One of the most
significant barriers to this societal right is that there is
little legislative muscle beyond the requirement to
increase the numbers of employed people with
disabilities. Unlike in the United States, the United
Kingdom and most developed countries, South Africa
does not have an overarching anti discrimination law
protecting disability. The EEA only covers employment
issues, but has no power or opinion beyond that. If
these two inextricable components were appreciated
more, most of the resistance to disability rights would
be overcome.
As a closing argument, Opperman argued that by
ensuring a greater degree of awareness and
sensitisation amongst all role players in society, we
would inevitably become a disability confident society.
A society that would begun to attract disability to be
able to live, learn, earn and spend at will.
Reference
Opperman, J. 2005. Brussels Sprouts of Equity.
Conference, 29 June 01 July 2005. South Africa.
August 2005 Page 25


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Some cases and practical examples of sexual harassment in the workplace.................................................................11

Case Update: Individual Employment Law.......................................................................................................................... ..16

Brussels Sprouts Of Equity................................................................................................................... .23

August 2005 Page 1

that his services were to be terminated by means of

August 2005 Page 2

FS2500-4 / FS2501-04 UASA & Others v Freegold

The commissioner was called upon to determine

August 2005 Page 3

contemplated that people became employees only

The appellant had offered the first respondent the

Further noted: That the view that employees must

The first respondent then referred the matter to the

Noted: That when a contract is reduced in writing, the

Held: That the statutory definition of employee

August 2005 Page 4

SABC v McKenzie (1999) 1 BLLR 1 (LAC)

August 2005 Page 5

Labour Court: D518/04

Chetty v Law Society of Transvaal (1985) 2 SA 756

August 2005 Page 6

August 2005 Page 7

August 2005 Page 9

Metal & Engineering Industries Bargaining Council, Durban: MEKN868

August 2005 Page 10

August 2005 Page 11

Whether the harassment is on the prohibited

The impact of the sexual conduct on the

Examples of sexual harassment in the Code include

A person who committed the act of sexual

Where there was a Previous Relationship

August 2005 Page 12

Vicarious Liability Upheld

approach adopted by men and women relating to

Guard against over-empathising with either the

August 2005 Page 13

Where possible, obtain representations of

As part of her conclusion, Orleyn argued that based on

A virtually identically worded section 14 of the

These cases were referred to:

According to section 17 (5) of the Public Service Act of

The effect of these statutory provisions is that,

Nkopo v Public Health and Welfare Bargaining

August 2005 Page 14

Furthermore regulation 10(5)(a)(i)(ii) of the Regulations

Desertion in the private sector

Desertion occurs when an employee absconds from

terminated, from the date of the sequestration. While a

Termination by effluxion of time

A prime example of a terminated contract not

August 2005 Page 15

FAWU obo Meyer v Rainbow Chickens,

Impossibility must be absolute and must not be

The right to a procedurally fair dismissal espoused by

and contractual provisions should be relied upon with

August 2005 Page 16

between National Bargaining Council of the Leather

The Employer Employee- Relationship

Trying to avoid being an employer

Can a company hide behind the decision of its

She mentioned that many employers find their

August 2005 Page 17