Labour Appeal Court almost doubles judgments

© Elena-Schweitzer – za.fotolia.com

However, it has been easy to miss another key development which has not attracted much publicity. This is that the Labour Appeal Court (LAC) has been extremely active in developing and refining our labour law. This year its judges have already delivered more than 60 judgements.

To put this in perspective, almost double the 35 judgements delivered in 2013. Decisions in the last few months have dealt with a wide range of issues, particularly in individual employment law. The LAC has reminded employers of the limited value that can be attached to a negative polygraph (lie-detector) result.

Employer inconsistency

The court also reminded employers that they can only rely on misconduct discovered after an employee has been dismissed to justify a dismissal, if they bring separate charges against the employer on the new grounds.

The court has also been strict on employees who seek to rely on employer inconsistency as a defence, pointing that variations in the sanctions imposed on employees are not a licence to breach the employer's rules. Another decision has outlined the circumstances in which an employee claiming constructive dismissal can seek reinstatement.

A ruling that has many echoes in public debates concerns the issue of an employees' misrepresentation of their qualifications in a CV or interview. This can justify dismissal, even if only discovered subsequently. The fact that the employee has performed their job adequately in the meantime does not preclude dismissal.

Important precedents

There are a number of important precedents for the public sector. The LAC has delineated the circumstances in which public sector employers can ask the Labour Court to review a decision not to dismiss an employee made by the chair of an internal disciplinary inquiry. The vast majority of cases referred to the Commission for Conciliation, Mediation and Arbitration and bargaining councils concern dismissals for misconduct. The LAC can be congratulated for using their appeal jurisdiction to provide clearer guidance to employers, employees and arbitrators.

And finally there is a decision in the Labour Court that will wake up all arbitrators. The court has (hardly surprisingly) confirmed that dozing off in an arbitration hearing is a reviewable irregularity.

These decisions and many more will be discussed in the 25th Annual Current Law Seminar to be hosted by LexisNexis South Africa between 6 and 11 November in Johannesburg, Cape Town and Durban.