Download issue: silcs-21-of-2016
We have pleasure in attaching the 21st SILCS for 2016, in which Owen Barrow summarises the following cases:
CONTINENTAL CONVEYORS AND SYSTEMS (PTY) LTD V NUMSA ON BEHALF OF MALAZA AND YINGWANE
LC (JR2225/12)  ZALCJHB 397 14 October 2016 15 pages
Strike — Protected strike — Misconduct during — Two employees dismissed for threatening behaviour towards non-striking colleagues and the assault of workshop manager — Dismissals upheld on review — Court deprecating conduct of this nature — Greater responsibility on striking employees and their unions to behave in a proper and peaceful manner during strike required.
NWAOUGU V MOTOR INDUSTRY BARGAINING COUNCIL DISPUTE RESOLUTION CENTRE AND OTHERS
LC (JR827/15)  ZALCJHB 368 27 September 2016 8 pages
Arbitration — In Bargaining Council — Plea of lis pendens — Examination of matter pending in Labour Court at same time — Although the parties were the same and some of the evidence led in the arbitration and the Labour Court would have overlapped, the causes of action before the arbitrator was an alleged unfair dismissal for misconduct and the cause of action before the Labour Court a claim of discrimination based on perceptions of unfair treatment by the but which did not include the dismissal itself — Insufficient evidence to justify plea of lis pendens.
GA-SEGONYANA LOCAL MUNICIPALITY V VENTER NO AND OTHERS
LC (JR961/13)  ZALCJHB 391 11 October 2016 14 pages
Local authority — Promotion — Failure to promote — Review of arbitrator’s award ordering promotion together with back pay — By time of review, employee had in any event resigned — Whether point subsequently mood for purposes of review — Award of back pay arising from order that employee had to be promoted not compensation within the meaning of s 193(4) of the LRA — Point moot.
IMAGEX (PTY) LTD V KRUSTINSKY AND OTHERS
LC (JR1303/2014)  ZALCJHB 371 29 September 2016 6 pages
Misconduct — Dismissal — When appropriate — Despite employee being guilty of a number of offences, employer had tolerated his infractions of the workplace rules and not applied corrective discipline — Dismissal not justified.
XSTRATA SOUTH AFRICA (PTY) LTD (MATOLO PLATINUM MINE) V FEDERATED MINING AND ALLIED INDUSTRIES UNION ON BEHALF OF MOKGOTLO AND OTHERS
LC (JR937/13)  ZALCJHB 390 11 October 2016 13 pages
Review — Evidence — Assessment of — Employee raising two separate and mutually exclusive defences to charge of theft, one when she was initially accosted and the other at her disciplinary hearing — Arbitrator not dealing with the inherent conflict between the two versions and if he had he would have come to a different conclusion — Award set aside on review.
PSA OBO CHOKOE V EDUCATION LABOUR RELATIONS COUNCIL AND OTHERS
LC (JR2147/13)  ZALCJHB 396 14 October 2016 12 pages
Educator — Transfer of — Dispute over referred to Bargaining Council where educator complained that collective agreements had not been properly interpreted and applied — Arbitrator coming to conclusion that educator’s complaint not so much over the interpretation and application of collective agreements but rather the unfair manner in which she had been treated by the Department — Court agreeing with arbitrator on this assessment and holding that review application ill-conceived.