Public Newsletter
Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to www.worklaw.co.za
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains a summary of changes to the Employment Equity Act and an overview of changes to the CCMA Rules. We also discuss three new cases: The first case considers what must be transferred for the transaction to be a transfer 'as a going concern' under s197 of the LRA. The second case investigates which disputes are included in a settlement "in full and final settlement". The third case asks when the Labour Court can arbitrate a dispute under Section 158(2) of the LRA.
This public newsletter is a free edited version of the subscriber newsletter.
RECENT CASES
What must be transferred in a transfer of a business 'as a going concern'?
In NUMSA and others v AIH Logistics (Pty) Ltd and Blacksuits (Pty) Ltd (LC Case No: D 1112/19 27 January 2023) it was confirmed that Section 197 of the LRA has a dual purpose: to protect the employment of the workers and to facilitate the sale of businesses as going concerns by enabling the new employer to take over the workers as well as other assets in certain circumstances.
In a true arm's length transfer of business, what should be transferred are those assets and personnel that are essential to the business as it was operated by the transferor, because without the transfer of the means to do the work, there could be no transfer of the business 'as a going concern'.
Read more (Worklaw subscriber access only)
What is included in a settlement "In full and final settlement"?
In Wheelwright v CP De Leeuw Johannesburg (Pty) Ltd (JA 81/2022) [2023] ZALAC 6 (21 February 2023) it was held that where there is a settlement agreement "in full and final settlement of all and any claims", this may extend beyond the specific dispute referred to the CCMA. There is a need to expressly exclude disputes, eg those arising from a restraint of trade agreement, failing which such disputes may be covered by the settlement agreement.
At the CCMA the parties to a dispute signed a settlement agreement which contained this provision: "This agreement is in full and final settlement of all and any claims which the parties may have against each other whether such claim arise from contract, delict, operation of law, equity, fairness or otherwise."
In a subsequent dispute the former employer sought to enforce a restraint of trade agreement that formed part of the former employee's contract of employment.
Read more (Worklaw subscriber access only)
Section 158(2): When can the Labour Court arbitrate a dispute?
In Association of Mineworkers and Construction Union obo Sebalela Agreement and Others v Fraser Alexander (Pty) Ltd (JS 369/2020) [2023] ZALCJHB 95 (11 April 2023) it was held that where there already exists an arbitration award by the CCMA (even an award to the effect that the CCMA has no jurisdiction), the award must first be set aside before a judge of the Labour Court, acting as an arbitrator, can make a new award under section 158(2) of the LRA.
The Labour Court may also not mero motu (of its own accord) exercise a discretion to sit as arbitrator if it becomes apparent during the course of a trial that the reason for dismissal is one that would ordinarily bring the dispute within the jurisdiction of the CCMA; the referring party must plead the application of section 158(2)(b) and specifically seek the relief that it affords.
Read more (Worklaw subscriber access only)
ARTICLE: Amendments to EEA and new CCMA Rules
By Prof Alan Rycroft
In this article Prof Alan Rycroft summarises the new CCMA Rules that came into effect on 24 April 2023 and recent amendments to the Employment Equity Act.The four main objectives of the EEA amendments are the following:
- to empower the Labour Minister to regulate sector-specific targets;
- to regulate the issue of EE Compliance Certificates;
- to deregulate employers with less than 50 employees;
- To expand the definition of 'disability'.
- Applications for condonation
- Postponing an arbitration
- Consequences of failing to attend an arbitration
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Bruce Robertson
May 2023
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