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June 2014

/June 2014

June 2014

ENFORCEMENT OF COLLECTIVE BARGAINING AGREEMENTS

If a Collective Bargaining Agreement makes provision for its own enforcement
and Dispute Resolution mechanisms, then neither the CCMA nor the Labour Court
would have jurisdiction to entertain such a dispute. In other words, a Collective
Bargaining Agreement had to be given effect to even if it meant that the Labour
Court does not have the jurisdiction it would ordinarily have had to adjudicate a
dispute, including a dispute about the application and the interpretation of that
agreement.

PRESCRIPTION OF JUDGMENT

The Labour Court held that the Prescription Act was not compatible with the Labour Relations Act as amended. This means that a CCMA Arbitration Award would be treated in the same way as a Judgement of the High Court would (this includes the Labour Court ) and remain valid for 30 years. Otherwise, it would create a discrepancy in the rights which litigants have and Judgments are dealt with.

SECURITY FOR COSTS

When the Applicant or Plaintiff is not a resident or domiciled in South Africa and has no fixed / immovable property in South Africa the Court can exercise it’s discretion and demand that he put up security in respect of the other side’s costs should his claim be unsuccessful. In exercising this discretion the court will consider whether or not the proposed litigation is vexatious , whether it has merit and what the prospects of success are .

FIXED TERM CONTRACTS

Should an employee refuse to sign a fixed term contract, it does not mean that the employment has automatically come to an end or that the employment has been extended.It is up to the employee to be able to prove that there was an understanding or expectation of indefinite employment.

ACCUMULATED LEAVE

The Labour Court held that an employee does not have an unlimited right to claim the value of accrued leave i.e leave that has accumulated but in respect of which no leave time has been taken.

If an employee has not taken any leave as required in terms of the basic conditions of employment act he has the mechanisms of that Act to enforce leave. It is not the intention of the Act to allow an employee to accrue leave and then cash in its value once the employment has been terminated.

However, that position changes if an employer in its contract states that leave not taken within that immediate leave cycle will lapse i.e will not be recoverable and cannot be taken by the employee.

CAN AN EMPLOYER RIGHT A WRONG

The Labour Court has confirmed a previous Labour Appeal Court decision that an employer has a right to fix or mend a mistake, that is when an employer has made a genuine error and is apologetic, then it should be given the opportunity to correct this mistake. The Employer must make reasonable and genuine attempts to mend those errors.

AWARD OF BACK PAY

If an employer unsuccessfully attempts to review an Award for retrospective reinstatement then pursues it to an Appeal, it runs the risk that it will be required to make payment of all the backpay from date of the initial order

2018-10-28T14:40:01+02:00March 13th, 2018|