IMATU obo Joubert v Modimolle Local Municipality [2018] 11 BLLR 1106 (LAC)

• Unfair Labour Practice Award cannot restore an employment relationship which has subsequently terminated, ie that the employee was dismissed and/or terminated following the commission of the Unfair Labour Practice, the CCMA cannot re-instate the employee to the employer.

South African Municipal Workers Union obo Damons v City of Cape Town (LC) (Unreported C306/2015, 20-4-2018)

• Where an employee becomes incapacitated due to an IOD (Or possibly otherwise) and part of the Incapacity Procedures guarantees his retention of his current position (ie. Firefighter), then he must qualify for any advancement that such position could qualify for, regardless of physical ability.
• When Medical Incapacity procedures secures employment in alternative position, employee must accept change in position so as to avoid this.

Mtati v KPMG Services (PTY) LTD (2017) 38 ILJ 1362 (LC)

• Where an employee resigns with notice and is subsequently informed of a notice to attend a disciplinary enquiry, whereafter the employee resigns with immediate effect, the employer no longer has the right to discipline as the relationship ended.
• Related – Coetzee v Zeitz Mocaa Foundation Trust and Another (LC) (Unreported C517/2018, 14-6-2018)
  • Court Holds that Resignation is a unilateral act;
  • When an employee resigns on notice, the employment relationship ends at the expiry of the notice period;
  • If an employee resigns without serving the required notice period, the employee breaches the employment contract;
  • An employer, in this scenario, may hold the employee to the contract and seek an order of specific performance, alternatively accept the employee’s repudiation, cancel the contract and seek damages against the employee; or
  • Further alternatively, the parties could agree to the termination and waive any right they might have had in terms of the contract.
• Failed at LAC due to issues relating to the demand of the employee in seeking a declaration that the employment relationship had terminated as the employer (KPMG) had not accepted the resignation.

Dagane v Safety and Security Sectoral Barganing Council and Others [2018] 7 BLLR 669 (LC)

• Employee dismissed for hate speech on Facebook under existing rules in terms of the SAPS code of conduct and ethics, held that charges were vague in not containing specific date(s) etc. Court held that the applicant there had been substantial compliance with following fair procedure and that the applicant had understood the nature of the alleged misconduct and was able to respond to these allegations.
• Applicant stated that his Facebook account had been hacked but never investigated or presented proof of this assertion, held that therefore his version is less likely than that of the employer.

SAMWU and Another v City of Johannesburg and Others (LC) (Unreported JR2228/2013, 2-2-2018)

• Following a S197 transfer, employees conditions formerly governed by plant-level collective agreements now covered by Main Collective Agreement (MEIBC, MIBCO etc) instead of original plant-level agreement, ie. S197(5)(b)(ii) not applicable, Main Agreement trumps plant-level agreement.

As always, HR City seeks to ensure that our team keeps abreast of new interpretations as they are adopted by the courts.