In African Meat Industry and Allied Trade Union (AMITU) and Others v Shave and Gibson Packaging (Pty) Ltd (D1050/2019) [2023] ZALCD 17 (17 October 2023) , the Labour Court was called upon to consider a diverse range of issues that arose on account of a protected strike that turned violent. In particular, in this judgment the Court dealt with the following issues: Whether it is possible for a protected strike to become “unprotected” and if so, what is required for a strike to lose its protection, The dismissal of employees on the basis of: unlawful conduct during the course of a strike; derivative misconduct; and contempt of a Court order and non-compliance with picketing rules and the Code of Good Practice on Picketing ( “Code” ). The appropriate relief in respect of an unfair dismissal of “striking” employees.

In La Foy v Department of Justice and Constitutional Development and Others (J1952/2017) [2023] ZALCJHB 127 (8 September 2023) , the Labour Court was called upon to shed some light on the intricate legal concepts involving harassment as a form of unfair discrimination within the meaning of section 6(3) of the Employment Equity Act 55 of 1998 (“ EEA ”). The Applicant in this matter, Ms Gabriella La Foy, was formerly employed as a Director-General by the Department of Justice and Constitutional Development (“ DoJCD ”). Ms La Foy had referred a claim of unfair discrimination to the Labour Court, claiming that she experienced harassment during her tenure at the DoJCD. Ms La Foy’s claim of unfair discrimination was premised on, among other things, the following allegations: Her branch that she was managing within the DoCJD was grappling with capacity issues due to staff shortages. She subsequently completed a request to fill up vacant positions which she considered critical and she had provided a motivation outlining the necessity of these positions. However, her request was declined, which she perceived as harassment. Several complaints were made against Ms La Foy, resulting in her receiving “audi alteram partem” (tell your side of the story) letters. She contended that the issued letters amounted to further harassment. While the DoCJD investigated the complaints against her, Ms La Foy was transferred to another position pending the finalisation of the investigation. She viewed this transfer as a demotion and an additional form of harassment. Over time, Ms La Foy felt marginalised, believing that her duties were being unfairly stripped away. She also claimed that she was denied international trip opportunities, which were part of her responsibilities, as well as leave requests being denied. The above issues culminated in Ms La Foy first referring a dispute to the Commission for Conciliation, Mediation and Arbitration, and ultimately, the Labour Court, in which she claimed that the alleged harassment that she had experienced constituted unfair discrimination on arbitrary grounds.

In Maasdorp v University of the Free State (JS647/22) (12 October 2023), the Labour Court was called upon to consider the possible fairness of a dismissal arising from the implementation of a COVID-19 vaccination policy (“Policy”). In this regard, the Applicant in the matter ( “Mr Maasdorp” ) claimed that his dismissal from the Respondent ( “UFS” ), resulting from his failure to comply with the Policy, was automatically unfair. Ultimately, the Court’s consideration of Mr Maasdorp’s claim was within the context of it determining a condonation application for the late filing of the claim. While the Court considered the other required factors in relation to Mr Maasdorp’s condonation application, for purposes of this article the focus will be on only two of those factors, namely the prospects of success and the importance of the case.

South Africa has been dealing with the COVID-19 pandemic for just under two years now. However, in as much as employers have managed their businesses in a way suited to the prevailing lockdown restrictions at any given time, the “old normal”, being employees reporting for work in office, remains a necessity for many employers. With employees returning to work, the implementation of mandatory vaccination policies has increasingly become the “elephant in the room”. There are some who have raised their concerns with the lawfulness and/or constitutionality of vaccine mandates. However, to date our Courts have not made any specific pronouncements on the issue. Despite this being the case, two recent decisions have assisted in giving guidance to employers, as well as highlighting the pitfalls, associated with the implementation of a mandatory vaccination policy. The takeaways from this article and the authorities discussed herein are as follows: In implementing a vaccination policy, there is no one size fits all. The procedure followed by an employer in the implementation of a vaccination policy will be closely scrutinised. Employers must fully and properly consult with employees and/or their representatives and safety representatives in respect of all aspects of a vaccination policy. A policy relating to mandatory vaccination against COVID-19 should take into account the operational needs of an employer as determined by a risk assessment. It is through this risk assessment that Employees who must be vaccinated are identified. Admission or access policies do not constitute mandatory vaccination policies, particularly where an alternative to vaccination is catered for. Steps must be taken to reasonably accommodate employees who refuse to be vaccinated, for any reason, and reasonable accommodation is mandatory in circumstances where employees have medically accepted contra-indications for vaccination.

In the matter of NUMSA obo Members v Aveng Trident Steel and Others CCT 178/19, the Constitutional Court considered whether an employer has the right to implement alternative terms and conditions of employment based on its operational requirements and to retrench those employees who do not accept the alternative terms and conditions of employment. Judgment was handed down by the Constitutional Court on 27 October 2020. The principle enunciated by the Constitutional Court is that as an alternative to retrenchment, an employer, pursuant to consultations, may offer employees employment on less favourable or reduced terms and conditions of employment. Should the employees decline such an offer, the employer can dismiss those employees as a result of its operational requirements. However, the employer must ensure that the dismissal is as a result of its operational requirements and not the employee’s refusal to accept the reduced or less favourable conditions of employment. Said differently, the employer’s operational requirements, and only that, must be the dominant reason or proximate cause for the dismissal to escape liability under section 187(1)(c) of the Labour Relations Act 66 of 1995 (“ LRA ”).

In the judgment of National Education Health and Allied Workers Union (“ NEHAWU ”) v Minister of Health and Others, Whitcher J was faced with an urgent application brought by NEHAWU on behalf of its members in which they inter alia alleged that the Minister of Health and all the provincial MECs failed to provide Personal Protective Equipment (“ PPE ”) to the hospitals and clinics in which their members are providing essential services during the coronavirus pandemic. NEHAWU further alleged that the Minister of Health failed to issue guidelines for the use of PPE, and failed to meaningfully engage with NEHAWU about these issues. NEHAWU accordingly sought an order: directing the respondents to meaningfully engage it on these matters, and, pending this, the Court was required to interdict and declare unlawful any disciplinary action which may be taken against the NEHAWU’s members in relation to a refusal to work in the absence of PPE; and directing the Minister of Labour to exercise his powers in terms of section 21 of the Occupational Health and Safety Act, 1993 to prohibit the performance of those duties that endanger the health and safety of employees.

In the unanimous judgment of National Union of Metalworkers of South Africa v Lufil Packaging (Isithebe) and Others [2020] ZACC 7 , the Constitutional Court (“ CC ”) was tasked with the central issue of determining whether a union can ignore its own constitution, which provides for and defines the eligibility for membership as well as whether or not a union can demand or  ganisational rights from an employer whose employees fall outside the scope of its constitution. The CC dismissed the appeal concluding that NUMSA was bound by its own constitution and could not operate outside the provisions of its own constitution.

The Constitutional Court considered the origin, development and application of the concept of derivative misconduct in the matter of NU MSA obo Khanyile Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others (2019) ZACC 25. This judgement is most instructive in that it not only provides guidelines on the factors to be considered when relying on derivative misconduct, but also emphasises that reliance on derivative misconduct should not be to the exclusion of exploring and proving, directly or indirectly, employees’ participation in, or association with, primary misconduct.

The hotly contested right of an employer to implement alternative terms and conditions of employment based on its operational require m ents and to retrench those employees who do not accept the alternative terms and conditions of employment, was considered by the Labour Appeal Court in the matt er NUMSA and Others v Aveng Trident Steel and Others, JA25/18 . J udgment was handed down on 13 June 2019.