Labour Law Sibergramme Issue 3 of 2017

Download issue:  LL_SG_2017_03

We have pleasure in attaching the 3rd issue of the 2017 Labour Law Sibergramme, in which John Grogan deals with the following cases:

Moodley v Department of National Treasury and others 
(JA13/2016) [2017] ZALAC 5 (10 January 2017), unreported ((Ndlovu JA, Coppin JA & Savage AJA)

This was the first case after the Constitutional Court handed down judgment in South African Revenue Service v Commission for Conciliation, Mediation and Arbitration (CCMA) and others (CCT19/16) [2016] ZACC 38; [2017] 1 BLLR 8 (CC); (2017) 38 ILJ 97 (CC); 2017 (1) SA 549 (CC) (8 November 2016) (see Labour Law Sibergramme 2016:21) concerning what should be done with a miscreant employee who has been found to have been unfairly dismissed.
In that case, the Labour Appeal Court (LAC) had held that SARS was not entitled to dismiss an employee upon whom a lesser sanction had been imposed by its own presiding officer and that, however repugnant the employee’s misconduct (he had referred to his superior as a “kaffir”), the employee had to be reinstated.

Ncane v Lyster NO and others 
(DA27/15) [2017] ZALAC 1 (10 January 2017), unreported (Tlaletsi DJP, Ndlovu JA & Landman JA)

This judgment confirms that statutory arbitrators should be slow to interfere with employers’ decisions relating to promotion, and should do so only when there is proof of bad faith or where the choice is utterly irrational.

Nogcantsi v Mnquma Local Municipality and others 
(PA07/15) [2016] ZALAC 54 (22 November 2016), unreported (Landman JA, Coppin JA & Phatshoane AJA)

Mr Nogcantsi was offered the position of protection officer with the Mnquma municipality after he responded to an advertisement for the post. The appointment was for three years, with a six-month probation period.

But there was also another conditional clause – the offer was subject to the outcome of a “vetting and screening process” then being conducted by the municipality, and stipulated that the contract would be “automatically terminated” if the outcome was negative.

Nogcantsi was subsequently informed that it had been established that information relating to him, supplied by the police (his former employer), had “displayed dishonesty” because he hadn’t disclosed that he was facing several criminal charges, including some for attempted murder. The department terminated his contract on the strength of this finding.

Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v NUM obo Masha and others 
(JA 4/15) [2016] ZALAC 25; (2016) 37 ILJ 2313 (LAC) (14 June 2016) (Davis JA, Musi JA & Murphy AJA)

This was another case dealing with the proper remedy for an unfair dismissal. Ms Masha, a human resources assistant, was responsible for preparing route and induction forms for contactors so they could find their way safely around the plant. One of them couldn’t find his way, and was killed.

Xstrata put the blame squarely on Masha. She was dismissed for being grossly negligent by failing to issue the deceased contract worker with a proper route form.

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