CASE STUDY UPDATE: LATEST DEVELOPMENTS IN COLLECTIVE LABOUR LAW • Association of Mineworkers and Construction Union and Others vs Ngululu Bulk Carriers (Pty) Ltd (CCT 15/2018); Determination of the principle of lis pendens • • Sylvia Bongi Mahlangu and Another vs The Minister of Labour and Others (Case No: 79180/15); • Declaration of Section 1 (xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”) as unconstitutional National Union of Metalworkers of South Africa obo Nganezi and Others v • Dunlop Mixing and Technical Services (Pty) Limited and Others (CCT202/18). derivative misconduct •
ASSOCIATION OF MINEWORKERS AND CONSTRUCTION UNION AND OTHERS VS NGULULU BULK CARRIERS (PTY) LTD; • Facts; • Ngululu belongs to the National Bargaining Council for the Road Freight and Logistics Industry; • AMCU members took part in an unprotected strike during the course of January 2016. • On 2 February 2016, 476 members were dismissed. • AMCU made a referral of unfair dismissal to the bargaining council. After conciliation, a certificate of non-resolution was issued stating that the members were dismissed for participation in unprotected action and the matter be referred to the Labour Court. • Another referral was made to the CCMA, this time in terms of Section 186 (1) (d) (selective re-employment) of the LRA and a certificate of non-resolution was issued. This was later on taken on review.
ASSOCIATION OF MINEWORKERS AND CONSTRUCTION UNION AND OTHERS VS NGULULU BULK CARRIERS (PTY) LTD; • Facts; • A referral was made to the Labour Court in terms of Section 187 (f) (1) in that the dismissals were automatically unfair on account of the employees membership. • Labour Court; • The Labour Court dismissed the employees case on the following grounds The referral made in terms of Section 187 (f) (1), should be • conciliated by the bargaining council or the CCMA before being adjudicated by the Labour Court; • Secondly, the determination of whether or not the employees were dismissed in terms of Section 186(1)(d) was the subject of the review application brought in the same court thus lis pendens
ASSOCIATION OF MINEWORKERS AND CONSTRUCTION UNION AND OTHERS VS NGULULU BULK CARRIERS (PTY) LTD; • Labour Appeal Court; • The LAC dismissed AMCU’s petition for leave to appeal as they see no prospects of success; • Constitutional Court; • The Con Court has agreed to hearing the matter. • Was previously set-down for 20 August 2019 but now moved to 6 February 2020.
SYLVIA BONGI MAHLANGU AND ANOTHER VS THE MINISTER OF LABOUR AND OTHERS • Facts; • Sylvia Mahlangu, the daughter of Maria Mahlangu, brought an application challenging the constitutionality of Section 1 (xix)(v) of the Compensation of Occupational Injuries and Diseases Act 130 of 1993. • Maria Mahlangu was a domestic worker who, unfortunately, got injured while on duty and passed away. • Sylvia, being her only child and beneficiary approached the Department of Labour to enquire about possibly claiming as her mom had passed away on duty. On 23 May 2019, and by agreement between the parties, the High Court, Pretoria made an order declaring Section 1 (xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”) unconstitutional and invalid to the extent that it excludes domestic workers employed in private households from the definition of “employee”.
SYLVIA BONGI MAHLANGU AND ANOTHER VS THE MINISTER OF LABOUR AND OTHERS • Facts; • Sylvia Mahlangu, the daughter of Maria Mahlangu, brought an application challenging the constitutionality of Section 1 (xix)(v) of the Compensation of Occupational Injuries and Diseases Act 130 of 1993. • Maria Mahlangu was a domestic worker who, unfortunately, got injured while on duty and passed away. • Sylvia, being her only child and beneficiary approached the Department of Labour to enquire about possibly claiming as her mom had passed away on duty. Department of Labour rejected her claim which then lead to the High Court application.
SYLVIA BONGI MAHLANGU AND ANOTHER VS THE MINISTER OF LABOUR AND OTHERS • High Court; • On 23 May 2019, and by agreement between the parties, the High Court, Pretoria made an order declaring Section 1 (xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”) unconstitutional and invalid to the extent that it excludes domestic workers employed in private households from the definition of “employee”. What the court is left to determine is whether or not the declaration of • invalidity should apply retrospectively or not. • The Applicants argue that it should and on following reasons; • The Respondent say it should not and on the following reasons;
SYLVIA BONGI MAHLANGU AND ANOTHER VS THE MINISTER OF LABOUR AND OTHERS • High Court; • On 23 May 2019, and by agreement between the parties, the High Court, Pretoria made an order declaring Section 1 (xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COIDA”) unconstitutional and invalid to the extent that it excludes domestic workers employed in private households from the definition of “employee”. • What the court is left to determine is whether or not the declaration of invalidity should apply retrospectively or not.
SYLVIA BONGI MAHLANGU AND ANOTHER VS THE MINISTER OF LABOUR AND OTHERS • High Court; • The Applicants argue that it should and on following reasons; It is just and equitable; • • The legal position is that retrospective effect should apply from the date the final Constitution came into effect, being 1997. • A prospective effect to the position would not benefit the Applicants. • It is practically feasible to do so • The Department has put plans in place for the registration of domestic workers by employers and should thus allow the domestic workers the ability to claim; There are means available to verify claims by the employees. •
SYLVIA BONGI MAHLANGU AND ANOTHER VS THE MINISTER OF LABOUR AND OTHERS • High Court; • The Respondent say it should not and on the following reasons; The Compensation Fund is based on the employer contributions • and thus there have been no contributions previously received on behalf of domestic workers. • The Compensation Fund may be bankrupt as a result of the floodgates a retrospective application would open
NATIONAL UNION OF METALWORKERS OF SOUTH AFRICA OBO NGANEZI AND OTHERS V DUNLOP MIXING AND TECHNICAL SERVICES (PTY) LIMITED AND OTHERS • Facts; In September 2016, Dunlop dismissed its employees following a • protected strike that turned violent. • The matter proceeded to arbitration after being challenged fon the grounds of fairness. • Arbitrator separated the employees into three groups Those identified as committing the violence • • Those present when the violence took place but did not participate • Those that were not identified as present when the violence took place
NATIONAL UNION OF METALWORKERS OF SOUTH AFRICA OBO NGANEZI AND OTHERS V DUNLOP MIXING AND TECHNICAL SERVICES (PTY) LIMITED AND OTHERS • Facts; The Arbitrator held the last group’s dismissal to be substantively unfair • and ordered their re-instatement. • Labour Court; • The employer took the Arbitrator’s decision to reinstate the third category of employees on review in the Labour Court. • The Labour Court set aside the Arbitrator’s decision. • It held that the Arbitrator failed to take the circumstantial evidence into consideration and how the employees failed to come forward and exonerate themselves.
NATIONAL UNION OF METALWORKERS OF SOUTH AFRICA OBO NGANEZI AND OTHERS V DUNLOP MIXING AND TECHNICAL SERVICES (PTY) LIMITED AND OTHERS • Labour Appeal Court; The Labour Appeal Court upheld the Labour Court’s decision. • • Constitutional Court; • The Constitutional Court held that the imposition of a unilateral duty to disclose information to the employer of co-employees participating in misconduct would be akin to imposing fiduciary duties on the employee. • That the derivative duty was sourced in the contractual duty of good faith without any requirement of the employer’s reciprocal duty of good faith.
NATIONAL UNION OF METALWORKERS OF SOUTH AFRICA OBO NGANEZI AND OTHERS V DUNLOP MIXING AND TECHNICAL SERVICES (PTY) LIMITED AND OTHERS • Constitutional Court; Labour Appeal Court noted the requirements of derivative misconduct • as follows; • present at an instance during the strike where violence was committed; • would have been able to identify those who committed the violent acts; • would have known that Dunlop needed that information from them; • with possession of that knowledge, failed to disclose the information; and did not disclose the information because they knew they were • guilty and not for any other innocent reason.
Athi Stoto Director Head Employment Law | Dispute Resolution Stoto@lnpinc.co.za 084 676 7888
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