To have a chance of winning a case at the Labour Court a party must present proof to the judge. What parties do not understand is that they are responsible for presenting clear, relevant and persuasive facts in support of their cases.

It is not up to the judge to bring the evidence or to show that the evidence brought constitutes proven fact. The judge’s job is to assess the strength of the evidence brought by both parties.

While the judge is required by law to give you, via the above process, every opportunity to present the evidence that you have brought you are likely to lose the case if you do not take full advantage of this opportunity.

In the case of Malekunutu vs Joburg Bolt (Lex Info 17 January 2025. Labour Court case number JR1806/21) The employee was retrenched based on the employer’s claim that it was in financial difficulties. The CCMA found that his dismissal was fair.

On review the Labour Court found that the CCMA arbitrator had failed to take crucial evidence into account and had also failed to apply his/her mind as to whether the reason for retrenchment that the employer had advanced was genuine.

Prior to any talk of retrenchment or of financial difficulties the employer had approached the employee via his union stating that it wished to reduce his pay by 40 % because his salary was out of line with that of his colleagues doing similar work. It was only when the employee refused to agree to this reduction that the employer broached the subject of retrenchment.

The employer’s correspondence and one of its witnesses clearly stated that the retrenchment process had been implemented because the employee had refused to accept the proposed salary reduction. The Court found that this was not a legitimate reason for retrenching the employee, that the reason advanced by the employer that it had been in financial difficulties was not believable and that the dismissal had been unfair. The Court ordered the employer to reinstate the employee with four and a half years backpay.

This extremely costly dismissal would not have occurred if the employer had simply understood the rule that it has the onus of proving that it had a valid reason for retrenching the employee. Employers must also understand what constitutes legally acceptable proof. This highlights the need for employer to train their decision-makers in the heavy requirements of labour law.

The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.

A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.

This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss. 

Written by by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za

To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za