UASA - The Union obo Members v Impala Platinum Limited (JS409/18) [2020] ZALCJHB 116 (21 January 2020)

UASA - The Union obo Members v Impala Platinum Limited (JS409/18) [2020] ZALCJHB 116 (21 January 2020)

The court found that the employer's statutory discretion to determine when leave is taken applies only to compulsory leave (CL) and not to accumulative leave (AL). The leave policy expressly allows employees to accumulate AL, take it as leave, or cash it in, but does not grant the employer unilateral discretion to compel the taking or deduction of AL. The employer's reliance on custom and practice was rejected, as any such practice related only to CL and not AL. The court held that the leave regime and default rule were unilaterally imposed without consultation or consent, and that the employer failed to prove the existence of a tacit or quasi-mutual agreement by the union or its members....

Citation
[2020] ZALCJHB 116
Parties
Applicant: UASA-THE UNION obo MEMBERS; Respondent: Impala Platinum Limited
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
21 January 2020
Case Number
JS409/18
Procedural Posture
Civil Trial / Judgment After Trial
Outcome
Application granted. The employer is not entitled to deduct accumulative leave (AL) from the applicant's members under the leave regime and default rule.
Judges
F Coetzee
Legal Topics
Unilateral Leave Deduction, Basic Conditions of Employment Act, Tacit Agreement, Custom and Practice, Collective Agreement, Leave Policy
Labour Law Civil Procedure Unilateral Leave Deduction Basic Conditions of Employment Act Tacit Agreement Custom and Practice Collective Agreement Leave Policy

Case Brief

Summary, issues, holding and outcome

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Parties

UASA-THE UNION obo MEMBERS

Applicant

Impala Platinum Limited

Respondent

Procedural Posture

Civil Trial / Judgment After Trial

Legal Issues

  1. 1 Whether the employer lawfully deducted accumulative leave (AL) from non-striking employees during a strike in which they did not participate.
  2. 2 Whether the employer had statutory or contractual discretion to unilaterally impose the leave regime and default rule.
  3. 3 Whether tacit or quasi-mutual consent to the leave regime was established by the conduct of the union or its members.

Ratio Decidendi

The court found that the employer's statutory discretion to determine when leave is taken applies only to compulsory leave (CL) and not to accumulative leave (AL). The leave policy expressly allows employees to accumulate AL, take it as leave, or cash it in, but does not grant the employer unilateral discretion to compel the taking or deduction of AL. The employer's reliance on custom and practice was rejected, as any such practice related only to CL and not AL. The court held that the leave regime and default rule were unilaterally imposed without consultation or consent, and that the employer failed to prove the existence of a tacit or quasi-mutual agreement by the union or its members....

Court Disposition

Application granted. The employer is not entitled to deduct accumulative leave (AL) from the applicant's members under the leave regime and default rule.

Orders

  • The respondent is not entitled to deduct any accumulative leave (AL) from the leave entitlement of the applicant's members whose details appear on the revised Annexure 'A' next to the statement of claim on the strength of the so-called leave regime and default rule unilaterally implemented by the respondent.
  • The respondent is ordered to forthwith credit the applicant's members on Annexure 'A' (as amended) with any leave deducted from them on the strength of the so-called leave regime and default rule unilaterally implemented by the respondent.