SILCS Sibergramme Issue 23 of 2017

Download issue:  SILCS 23 of 2017

We have pleasure in attaching the 23rd SILCS for 2017, in which Owen Barrow summarises the following cases:

SACCAWU OBO MOKEBE AND 71 OTHERS V PICK ‘N PAY RETAILERS
LAC (JA36/16) [2017] ZALAC 55 26 September 2017 28 pages
Kathree-Setiloane AJA
SILCS 23/2017
Strike — Unprotected strike — Participation in — Sanction — Dismissal — Strike of short duration (approximately one hour) — Court a quo erred in dismissing employees’ genuine belief that national strike had been called for from 15:00 and not 19:00 as in original strike notice — Employer also failing to issue written ultimatums to employees — It had also reneged on its written undertaking to give employees individual opportunity to make representations on sanction — Dismissals set aside.
ARAMEX SOUTH AFRICA (PTY) LTD V VAN SCHALKWYK AND ANOTHER
LC (C516/2017) [2017] ZALCCT 44 4 October 2017 26 pages
Tlhotlhalemaje J
SILCS 23/2017
Restraint of trade — Enforcement of — Whether employer had protectable interest — Employee’s conduct in downloading confidential information on day of her resignation and then misrepresenting her intended future employer in exit interview rendering her undertakings to honour the restraint commitments not worth the paper they were written on — Restraint order granted on urgent basis.
MSAGALA V TRANSNET SOC LTD AND OTHERS
LC (J492/2017) [2017] ZALCJHB 370 9 October 2017 7 pages
Van Niekerk J
SILCS 23/2017
Arbitration — Pre-dismissal arbitration in terms of s 188A of LRA — Decision of arbitrator on interlocutory matter (whether to order discovery of two forensic reports) — Whether subject to review under s 158(1)(h) — Arbitrator not acting as employer’s agent or representative — No review available under s 158(1)(h).
NATIONAL UNION OF MINEWORKERS AND OTHERS V ROBERTS BROTHERS CONSTRUCTION (PTY) LTD AND ANOTHER
LC (P05/14; P06/14) [2017] ZALCPE 13  3 October 2017 5 page
Lagrange J
SILCS 23/2017
Strike — Participation in — Role of employer — Whether onus on employer to contact employees’ union in attempt to end strike — Item 6(2) of Schedule 8 to LRA — Suggestion that item 6(2) placed an equivalent responsibility on employees to contact their trade union, could not be reconciled with a plain reading of the text of the item.
EXARRO COAL (PTY) LTD T/A GROOTGELUK COAL MINE V MADUMA AND OTHERS
LC (JR1524/2015) [2017] ZALCJHB 348 29 September 2017 19 pages
Lagrange J
SILCS 23/2017
Dismissal — For medical incapacity — Medical reports inconclusive on diagnosis and prognosis — Employee could not afford final report and employer not offering to obtain it but suggesting that if employee participated in occupational health investigation Mine Bureau for Occupational Diseases might pay for it — Employee not accepting this offer and dismissal based on inconclusive reports — Other avenues to obtain final report only raised at end of inquiry — Dismissal procedurally unfair.

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