Public Newsletter
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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on "Referring disputes within the time periods" in which we try to reconcile two contradictory LAC decisions. We also discuss three new judgments: The first case, an LAC decision, deals with evidence from sources such as newspapers and Facebook. The second case, also an LAC decision, asks whether a group refusal to work a new shift system is an unprotected strike. The third case considers whether an employer's disciplinary case against an employee can 'prescribe' if not brought within three years.
This public newsletter is a free edited version of the subscriber newsletter.
NEW LEGISLATION
Amendments to the Regulations made in terms of the Protection of Personal Information Act (POPIA) are effective from 17 April 2025. You can access them under Worklaw's Legislation section entitled Protection of Personal Information Amendment Regulations 2025. The amendments have clarified the definition of "electronic communication" for direct marketing to include voice calls, emails, short message services (SMS), and automated calling systems, and a party wishing to engage in unsolicited direct marketing through these channels will now require the written consent of the recipients (known as "data subjects").
RECENT CASES
When the employer relies on social media evidence
In Pioneer Foods (Pty) Ltd t/a Essential Foods v Shear N.O. (JA21/22) [2024] ZALAC 46; (2025) 46 ILJ 344 (LAC) (18 October 2024) the LAC had to consider a matter in which an employer's case was completely reliant on unsubstantiated hearsay evidence from newspapers and Facebook sources.
The employees were a SASKO driver/salesman and a delivery assistant. In December 2016, they came across a Coca-Cola truck that had lost its load on a motorway. Passers-by and other people had descended on the Coca-Cola truck and helped themselves to the bottles of Coca-Cola on the ground and in the truck.
The two employees were dismissed for having stopped their vehicle (branded SASKO) at the scene and taking part in the looting, thereby putting the employer's name into disrepute. The employer relied on a report in the Daily Sun Newspaper, social media posting on Facebook and the Citizen Newspaper - which reported that a Sasko truck driver was seen running from his vehicle to help himself to a few drinks that he took back to his truck. The employer was able to identify the truck and its drivers from the photographs included in the article. The employer's evidence was entirely based on these reports.
At the CCMA arbitration, the dismissals were found to be unfair because the employer had relied on newspaper and Facebook hearsay evidence - without having laid the basis for admission of such evidence. The employer took the arbitrator's award on review to the Labour Court, submitting that the arbitrator was biased and committed misconduct by not allowing the employer the opportunity to properly present its case, and that the arbitrator misinterpreted the law pertaining to hearsay evidence. The Labour Court agreed with the commissioner that the employer had relied on newspaper and Facebook hearsay evidence without having laid the basis for admission of such evidence.
The matter was referred on appeal to the Labour Appeal Court.
Read more (Worklaw subscriber access only)
When is a group refusal to obey instructions an unprotected strike or simply gross insubordination?
In SA Steelworks division of SA Metal Group (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others [2025] 3 BLLR 257 (LAC); (2025) 46 ILJ 572 (LAC) the LAC had to decide whether a group refusal to work a new shift system constituted an unprotected strike or rather a refusal to obey instructions, which amounted to gross insubordination.
The employer, a metal recycling business, ran a 24 hours a day, seven days a week operation with a continuous shift system. The dismissed employees were all working on the same shift. The employees, in the past, worked two-day shifts, followed by two-night shifts and closed off their working week with two days off-duty. The employer introduced a new shift system in terms of which the employees were required to work a four-day shift followed by two days off-duty, and a four-night shift followed by two days off-duty. The employees refused to work this new shift system and were ultimately dismissed.
The dismissals were referred to a MEIBC arbitrator who summarised the issue as being whether, by seeking to introduce a new shift pattern, the employer was implementing a change to the terms and conditions of employment or whether the introduction of a new shift pattern merely constituted a (new) work practice. The arbitrator found the employer was not bound by shift times or cycles, and the introduction of the new shift pattern was a work practice and did not constitute a change in the employees' terms and conditions of employment.
The arbitrator found the employees' absence was due to a refusal to work according to the new shift pattern, which was unauthorised and was without communication with the employer as required by company policy. The employees were therefore in breach of the company policy. The arbitrator, on these bases, found that the employees were guilty of gross insubordination, their dismissals were substantively fair and the trust relationship had been irrevocably damaged.
AMCU took the award on review to the Labour Court, where events took an unexpected turn. The Court said that when employees "downed tools" the acts of misconduct took place in the context of an unprotected strike. The Court accordingly found that in terms of section 191(5)(b)(iii) of the LRA, the MEIBC did not have jurisdiction to entertain the dispute and that it should have referred it to the Labour Court.
The matter was referred on appeal to the Labour Appeal Court.
Read more (Worklaw subscriber access only)
Can an employer's right to discipline prescribe?
In Public Investment Corporation v More and Others (JR 2121/2022) [2025] ZALCJHB 159 (16 April 2025) the Labour Court had to decide if an employer's right to discipline can prescribe after 3 years in terms of the Prescription Act, where the employer delays that long in starting the disciplinary hearing.
The employee, a chartered accountant, was employed by the PIC as its CFO. She was dismissed in 2020 over a VBS Mutual Bank R350 million revolving credit facility that she recommended in 2015, which was found to not comply with the terms of the fund investment panel's approval requirements. The employee referred an unfair dismissal dispute to the CCMA, and, being a high-profile matter, the arbitration was presided over by two senior commissioners.
At the CCMA arbitration, in addition to challenging guilt and sanction, the employee made the special pleas of prescription, waiver and undue delay. As the PIC only instituted disciplinary action in June 2020 for alleged misconduct in 2015, it was argued that the debt had prescribed.
The commissioners accepted this argument and found that the claim that the PIC had against the employee was extinct through the running of uninterrupted prescription. The commissioners found that the dismissal was substantively and procedurally unfair; she was reinstated, and the PIC was ordered to pay the costs. The commissioners quantified the backpay and costs due as being R6 741 173.75 and R39 000, respectively.
The matter was taken on review to the Labour Court.
Read more (Worklaw subscriber access only)
ARTICLE: Referring disputes within the time periods
By Prof Alan Rycroft
One of the main purposes of our employment legislation is to achieve the effective and quick resolution of labour disputes. To do this the LRA and EEA prescribe time periods in which disputes must be referred to the CCMA, bargaining council, or court. For example:- Unfair dismissal disputes must be referred within 30 days of the dismissal;
- Unfair labour practice disputes must be referred within 90 days of the date of the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence;
- Discrimination disputes must be referred within six months after the act or omission that allegedly constitutes unfair discrimination;
- If the conciliation is unsuccessful, time periods are set by which time the matter must be referred to arbitration or the Labour Court.
To make matters worse, the Labour Appeal Court appears to have given contradictory judgments on this issue. In Mngadi v Jenkin NO and Others (DA 7/2019) [2020] ZALAC 42 (24 November 2020) the court held that where discrimination is not a single act but a "continuing or repetitive" act that recurs, condonation for late referral of the dispute is not required for acts in the previous six months. But two years later the LAC gave a contradictory judgment in Amalungelo Worker's Union obo Mayisela & others v CCMA (2022) 43 ILJ 600 (LAC), which astonishingly made no reference to the Mngadi judgment. The LAC then held that an act or omission occurs once and for all on a particular date.
Read more (Worklaw subscriber access only)
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Bruce Robertson
June 2025
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