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NUMSA v ARCELORMITTAL SA (LAC). Summary: Urgent application granted which prevented employees from striking ' rule nisi confirmed on the return date ' whether union precluded from striking in order to force an employer to meaningfully consult with it ' employer restructuring its business to curb losses ' employer consulting with union on the restructuring process outside the prescript of section 189 of the LRA ' no notice in terms of section 198(3) issued as employer not contemplating retrenchment ' Held: if the section 189 process has not been initiated, the employees would also not have a right to strike in terms of section 189A(7) or (8). Further that when an employer invites a union to consultation, it is at liberty to implement its decision at the end of the process. When however, the employer engages in sham or unfair consultations or implements its decision without giving the union a proper opportunity to influence the process, the union may embark on a strike, subject to compliance with the provisions of the LRA, in order to convince the employer to reopen the consultations. The dispute concerned a matter of mutual interest and there is nothing in the Act that precludes the union from embarking on a strike in order to force the employer to meaningfully consult with it before it implements its decisions. Labour Court ought to have discharged the rule nisi - appeal upheld. Cross-appeal ' employer contending that no proper service was effected ' court confirming Labour Court finding that service in terms of the bargaining council rules is effected by fax and that no service affidavit is required 'court finding that there was sufficient proof that documents were faxed ' cross-appeal dismissed.

BRIAN JOFFE t/a J AIR v CCMA (LAC). Summary: Normal retirement age for a co-pilot of an aircraft engaged in international commercial air transport operations. Regulations prohibit pilots engaged in international commercial air transport operations who have attained the age of 60 from flying - such pilot may be allowed to fly if he or she is a member of a multi-pilot crew and is the only member of the multi-pilot crew who has attained the age of 60 or if authority of a foreign state has given permission for that pilot to be a member of the aircraft flight crew notwithstanding his or her age. Held that, the regulations do not contain a normal retirement age for a co-pilot ' further that the employer had not considered the employee's suggestion and was presented with a fait accompli ' Labour Court's judgment upheld appeal dismissed with costs.

MINISTER OF POLICE v M KGOPA (LAC). Summary: Locus standi for the state to review its own decisions under section 158(1)(h) ' Employee dismissed for misconduct 'chairperson of the disciplinary hearing discharging the matter as the request of the employee. Held: Locus standi - The law is settled. Section 158(1)(h) of the LRA empowers the Labour Court to review decisions of chairpersons at disciplinary hearings, at the instance of the employer, in circumstances where the State is the employer. Concomitantly, the State as employer has the standing to institute such review proceedings. Held: Discharge - the decision of the chairperson was unreasonable and illegal. The whole point of a disciplinary hearing is to provide an employee an opportunity to respond to the allegations against him or her and to weigh the probabilities to establish if misconduct has been committed and what sanction might be appropriate. The Chairperson erred and acted unreasonably in treating the employee's version put in cross-examination as sufficient evidence and by accepting it as the more probable version. Appeal upheld and matter remitted for a hearing de novo.

SPAR GROUP LIMITED v SEA SPIRIT TRADING 162 CC T/A PALEDI (LAC). Summary: Transfer as a going concern 'in terms of the notarial bonds concluded by the appellant and first and second respondents, in the event of default by the first and second respondent, the appellant takes over the business and exercises all rights including selling the business - Whether the perfection of the notarial bonds by the appellant led to the transfer of business as a going concern when the first and second respondents could not meet their financial obligations Held A creditor perfecting a notarial bond over movable property of its debtor normally does not intend to acquire responsibility for conducting the business of the debtor for the purpose of making profits on an ongoing basis. The limited purpose of the transaction from the creditor's perspective is usually to recover the debts owing by the debtor and to withdraw from the arrangement once that object is accomplished. Requiring a creditor perfecting a notarial bond to assume responsibility for the employment contracts of the debtor will render this form of security unduly burdensome and less effective. Although the appellant assumed responsibility for conducting the business of the corporations, it did so temporarily with the limited purpose of recovering its debt. Labour Judgment set aside and appeal upheld.

R M MASHIGO v SAPS (LAC). Summary: The appellant employee, a policeman, was dismissed after having been found guilty of assault and the attempted murder of two civilians. At arbitration his dismissal was found to be substantively unfair and he was retrospectively reinstated into his employment. The SAPS succeeded in its application to review the arbitration award, with the award set aside due to defects in the process of such a nature which were found to be of such a nature that the award fell outside of the ambit of reasonableness required. The matter was remitted back to the bargaining council for a hearing de novo before a different arbitrator. On appeal the decision of the Labour Court upheld with no order as to costs.

PSA o.b.o. EL THORNE v DEPARTMENT OF COMMUNITY SAFETY (WESTERN CAPE) (LAC). Summary: Unfair labour practice 'employee's appointment for the advertised post fell through because she did not have the requirement NQF qualification with 320 credits 'employee having a level qualification but with 120 credits 'employee contending unfair labour practice that but for her qualification she would have been appointed. Held: In the setting of appointment criteria in relation to the requirements of a post, the Department is allowed to set an educational standard which it believes is reasonable for the requirements of the post. The employe's argument attaches insufficient significance to the number of credits assigned to a qualification. The goal of professional merit in the public service confers a managerial prerogative to require a three-year or 360 credits qualification at NQF Level 6 for the post of a Deputy Director; and hence it may reasonably be held, as the arbitrator did, that this is what the Department meant in the job advertisement by an appropriate tertiary qualification at NQF Level 6. It might have been better to have stipulated the number of credits required for the post in the advertisement, but the condition of an appropriate qualification was broad enough to include the Department's prerequisites of 360 credits for eligibility and appointment. There is accordingly no merit in the appellantâ??s submission that the Department amended the advertised criteria. Labour Court judgment's upheld. Appeal dismissed.