SILCS Sibergramme Issue 17 of 2017

Download issue:  SILCS 17 of 2017

We have pleasure in attaching the 17th SILCS for 2017, in which Owen Barrow summarises the following cases:

THE WORKFORCE GROUP V MCCLINTOCK AND OTHERS
LAC (DA08/16) [2017] ZALCJHB 272 1 August 2017 18 pages
Phatshoane AJA
SILCS 17/2017
Dismissal — For misconduct — Fraud — Proof of — Fact that fraudulent scheme not initiated by employee but by financial director and employee only a subsequent participant in it justifying finding of fraud and breach of trust relationship — Dismissal substantively fair.
IMPERIAL CARGO SOLUTIONS V SATAWU
LAC (JA63/2016) [2017] ZALAC 47 1 August 2017 9 pages
Tlaletsi AJP
SILCS 17/2017
Strike — What constitutes — Refusal to perform additional duties — Drivers in road freight industry refusing to carry out ‘tarping’ duties when employer would not agree to increase in annual increment for performance of those duties which it had undertaken to pay for in terms of a collective agreement between employer and union when services of drivers’ assistants were withdrawn in 2007 — Status of such agreement — Union cancelling agreement on notice in terms of collective agreement — Court holding that, with cancellation of agreement, performance of duties in terms of the agreement came to an end for both drivers and employer — Refusal to perform tarping duties after cancellation not amounting to strike action.
RAMADIBA V LIMPOPO LEGISLATURE AND OTHERS
LAC (JA25/15) [2017] ZALAC 46 1 August 2017 12 pages 
Tlaletsi DJP
SILCS 17/2017
Review — Of dismissal of lis pendens point in limine relating to jurisdiction of CCMA — After dismissal of point in limine dispute withdrawn by appellant who did not oppose subsequent application for review of dismissal of point in limine  — Court deciding matter on facts as they were before the commissioner at the time despite the withdrawal of the dispute — Court could not be faulted for this approach.
KENCO ENGINEERING CC V NUMSA OBO MEMBERS
LAC (JA/29/16) [2017] ZALCJHB 274 1 August 2017 13 pages
Phatshoane AJA
SILCS 17/2017
Dismissal — For operational requirements — Selection of employees for dismissal — Onus on employer to prove that dismissal of the individual employees had been fair — It had to show that it had selected employees to be dismissed according to selection criteria agreed to by the consulting parties, or if no criteria had been agreed, criteria that were fair and objective — Employer had to place sufficient evidence before the court to enable it to assess whether or not it had used and applied skills, work performance, attendance records and safety records in a fair and objective manner — Employer failing to discharge the onus on it — Dismissal substantively unfair.
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