South African labour law

South African labour law regulates the relationship and Arbitration, 1995 saw the introduction of bargainbetween employers, employees and trade unions in the ing councils, which allow for communication across the
Republic of South Africa.
industry. A bargaining council is organised collectively
and voluntarily, and must be registered. In order to be
registered, an alternative-dispute-resolution mechanism,
similar to the Commission for Conciliation, Mediation
1 History
and Arbitration, must be put in place.
The Labour Relations Act 1995 also regulated the issue of
fairness, not only in termination but during employment,
too. In 1998, however, most of the law on unfair labour
practices was removed from the Labour Relations Act
1995 and put into the Employment Equity Act (EEA).
The EEA also deals with issues such as fairness regarding
a workers human immunodeciency virus (HIV) status
or disability, as well as the issue of armative action.

Main article: History of South African labour law

The Native Labour Regulations Act 1911 prohibited

strikes by trade unions, introduced wage ceilings and a
pass system for moving around jobs. Over 70,000 Chinese labourers were brought in, and used by landowners
to undercut the wages of other workers. Among white
workers, there was signicant unrest, and major strikes
The Basic Conditions of Employment Act (BCEA), the
took place in 1907, 1913, 1914 and 1922
Health and Safety Acts and the Skills Development Act,
For a period of sixteen years, from 1979 to 1995, several must be read with the EEA. The Skills Development Act
critical developments occurred in the eld of labour law provides that a small percentage of a labourers salary
in South Africa, beginning with a radical change in the must be contributed to the Department of Labour, enrst of these years, when a signicant Commission of En- abling certain workshops to be run which are designed to
quiry was held, resulting in the establishment of an Indus- develop skills.
trial Court, which was given extensive powers to mould,
change, shape and develop the law. Prior to 1995, most
labour relations were based on contracts. In 1995, much 2 Constitution
of the law developed by the Commission and the Industrial Court was put together in the Labour Relations Act
1995 (LRA). Since then, most labour law has been based Chapter 2 of the Constitution contains several provisions
of relevance to employment and labour law:
on statute.
Prior to 1995, an employee could be dismissed in terms
of the contract of employment, which could permit any
reason for dismissal. Since 1995, an employee may be
dismissed only for misconduct, operational reasons and
incapacity. The Labour Relations Act 1995 is a pivotal
piece of legislation, as it recognises the need for fast and
easy access to justice in labour disputes. The Industrial
Court had the status of a High Court, and therefore was
not accessible to all labourers.

the right to equality;

protection of dignity;
protection against servitude, forced labour and discrimination;
the right to pursue a livelihood; and
protection for children against exploitative labour
practices and work that is hazardous to their wellbeing.

1995 also saw the introduction of the Commission for

Conciliation, Mediation and Arbitration (CCMA) which
is an administrative tribunal. The Commission for Conciliation, Mediation and Arbitration endeavours rst and
foremost to conciliate between the parties. If it is unsuccessful in this, the matter moves on to arbitration. The
entire process is very informal, and at no charge, and is
therefore very accessible to labourers, who often utilise
it: About 300 new cases are brought before the Commission for Conciliation, Mediation and Arbitration daily. In
addition to the Commission for Conciliation, Mediation

It is important to interpret all labour legislation in light of

the Constitution.
Section 23 of the Constitution deals specically with
labour relations, providing that everyone has the right to
fair labour practices,[1] and specically the right
to form and join a trade union;
1

3
to participate in the activities and programmes of a
trade union; and
to strike

Every employer, meanwhile, has the right

to form and join an employers organisation; and
to participate in the activities and programmes of an
employers organisation.

EMPLOYMENT CONTRACT

reconsideration of some of the assumptions underlying

the common-law contract of employment, in particular
the employers power of command and unfettered rights
in respect of promotion and dismissal.
Furthermore, the labour courts judgments on such contentious issues as the dismissal of striking workers are
subject to review by the Constitutional Court, so long as
the applicants have exhausted the procedures available to
them under the labour legislation.

In NUMSA v Bader Bop,[2] the Constitutional Court overturned a decision of the Labour Appeal Court which
Every trade union and every employers organisation has restrictively interpreted the Labour Relations Act 1995.
the right
The court recognised the necessity of collective bargaining and bargaining councils which facilitate the establish to determine its own administration, programmes ment of trade unions. The court held that minority unions
and activities;
may not strike in support of demands for organisational
rights reserved in the Act for majority unions.
to organise; and
In NEHAWU v University of Cape Town,[3] the Constitu to form and join a federation
tional Court overturned another decision of the Labour
Appeal Court which restrictively interpreted the Labour
Finally, every trade union, employers organisation and Relations Act 1995. It had been argued that the term evemployer has the right to engage in collective bargaining. eryone did not include a university or a company, but the
Section 23(1) is an unusual provisiononly South Africa court held otherwise. Furthermore, the court ruled that,
and Malawi expressly protect the right to fair labour prac- under the original section 197 of the Labour Relations
tices as it is so broad and overarching. An exact def- Act 1995, contracts of employment transferred automatinition of fair labour practices is impossible, since this ically when businesses were transferred, irrespective of
is a dynamic eld of the law, rooted in socioeconomic the wishes of the employers.
rights. Section 23(1) refers to everyone, encompassing SANDU v Minister of Defence,[4] another Constitutional
far more than merely employees and workers; it also in- Court, case Judge OReagan dealt with the concept of a
cludes would-be workers, employers and juristic persons. worker, and held that, although the Labour Relations
Section 23 is not entirely universal, however, as soldiers Act 1995 does not apply to South African National Deare excluded from its ambit insofar as they may not strike fense Force (SANDF) members, they are still workers
in terms of the Constitution, which protects the rights of
at a time of war.
every person in South Africa.
The Labour Relations Act was promulgated as the national legislation referred to in subsections 23(5) and
23(6), which provide respectively that national legislation may be enacted to regulate collective bargaining, 3 Employment contract
and that national legislation may recognise union security arrangements contained in collective agreements. 3.1 Parties
Both subsections stipulate that, to the extent that such legislation may limit one of the rights in section 23, the lim- 3.1.1 Identication
itation must comply with section 36(1), the limitations
clause of the Constitution.
The rst question to be asked, when seeking to resolve
The current Basic Conditions of Employment Act is also any labour law problem, is whether the parties are indeed
designed to give eect to the right to fair labour practices. employees and employers within the meaning of the
Both Acts are bolstered by the EEA, which replicates the applicable statute or the common law.
equality clause in the Constitution in its totality, adding This has long been a dicult task in South Africa, as it is
that one may not discriminate on the basis of human im- not always immediately apparent whether the parties have
munodeciency virus (HIV) status.
entered into the locatio conductio operarum (contract of
The general guarantee of fair labour practices has far- employment) or merely the locatio conductio operis (conreaching eects on the civil courts approach to the inter- tract of work).
pretation of the rights of parties to employment contracts. Distinguishing between these two kinds of contracts is
All courts are enjoined, when applying and developing critically important, as dierent legal consequences ow
the common law, to have due regard to the spirit, pur- from the various forms of contract. Most important is that
port and objects of the Bill of Rights. This calls for a South African labour legislation applies only in respect

3.1

Parties

of employees, who are entitled to social security benets and have access to the statutory mechanisms if they
wish to seek remedies for violations of their employment
rights. Similarly, only employers are bound by the labour
statutes, and are vicariously liable for the delicts of their
employees.

3.1.2

Common law

The rst source to be examined, when seeking to determine whether parties to a work relationship are employers and employees, is the contract into which they have
entered.
A contract of employment comes into existence when the
parties conclude an agreement that conforms to the requirements of the locatio conductio operarum. The contract of employment is traditionally dened as a contract
between two persons, the master (employer) and the servant (employee), for the letting and hiring of the latters
services for reward, the master being able to supervise
and control the servants work.

3
works for another person or for the State and
who receives, or is entitled to receive, any remuneration; and
in any manner assists in carrying on or conducting the business of an employer.
The dierence between the Labour Relations Act 1995
and the EEA is that the Labour Relations Act 1995 excludes independent contractors only in section 213(a),
while the EEA excludes independent contractors in both
subsections. It is safe, however, to assume that even from
the second part of the denition of an employee, as it
appears in the Labour Relations Act 1995 or the Basic
Conditions of Employment Act, independent contractors
are implicitly excluded.
At the core of subsection (a) of both denitions lies a reference to the contract of employment: one person working for another in exchange for some form of remuneration.

The basic idea behind subsection (b) of both denitions is

that employees are those people who place their capacity
to work at the disposal of others. This is the essence of
This, however, begs the question of how much supervi- employment.
sion or control is required to distinguish between employThe case of Liberty Life Association of Africa v Niselow
ees and independent contractors.
reiterates the law set out above and the interpretation of
Reported judgments have indicated that the task of dis- the denition of employee.
tinguishing employees and employers from parties to
other contractual relationships entailing the provision of
work, or the rendering of services, is not a matter of de- 3.1.4 Courts
nition; classication of such contracts is a matter of subLabour legislation does not dene contract of service or
stance, not merely of form.
the concept of work at all.
The true nature of the contract, therefore, is determined
from the relationship between the parties, not merely the This means that it is necessary to look outside the legislation to determine the meaning of these terms, in order
label the parties have given their contract.
to distinguish between an employee and an independent
contractor.
3.1.3

Statutes

Statutory denitions do not resolve the problem. Employee is dened

in section 213 of the Labour Relations Act 1995 as

The courts have formulated a number of tests for drawing

the distinction.
Control test The control test focuses on the element of
control exercised by the employer over the employee.

The power to control has traditionally been regarded as

the hallmark of the employment contract. With the ad any person excluding an independent convent of highly skilled employees who are given free rein
tractor, who works for another person or for
in performing their duties, the courts no longer insist on
the State, and who receives, or is entitled to
de facto control, as once they did, but recognise that a
receive, any remuneration; and
right to control is sucient.
any other person who in any manner assists
The courts initially applied the requirement of a right to
in carrying on or conducting the business of
control rather strictly, as in R v AMCA Services, where the
an employer;"
presiding ocer spoke of a right to control, not only the
end to be achieved by the others labour and the general
in section 1 of the Basic Conditions of Employment
lines to be followed, but the detailed manner in which the
Act in exactly the same words; but
work is to be performed.
in section 1 of the EEA as any person other than an
independent contractor who

It is now clear, however, that the courts have in mind,

a right to control only in principle. The employer not

EMPLOYMENT CONTRACT

choosing to exercise that right does not render the con- guidance may be derived from the English case of Ready
tract something other than one of employment.
Mixed Concrete v Minister of Pensions and National
The application of the control test in isolation is entirely Insurance, in which the presiding ocer set out three
inadequate, as certain employees have a wide discretion possible components:
as to how to perform their work. Such discretion does not
alone render them independent contractors.

1. The servant agrees that, in consideration of a wage

or other remuneration, he will provide his own work
and skill in the performance of some service for his
master.

The ultimate dierence between an employee and an independent contractor is that the principal has no legal
right to prescribe the manner in which the independent
contractor brings about the desired result, but may pre2. He agrees, expressly or impliedly, that in the perscribe methods by which the employee works. In Colonial
formance of that service he will be subject to the
Mutual Life Assurance Society v MacDonald, the court
others control in a sucient degree to make that
held that the employee was subject to the control of the
other master.
employer in the sense that the latter had the right to pre3. The other provisions of the contract are consistent
scribe not only what work had to be done, but also the
with its being a contract of service.
manner in which that work had to be done. The independent contractor, on the other hand, could be directed only
as to what work must be done, not how it was to be done. When courts examine the other provisions of the contract, they will consider all relevant aspects of the relaIn any event, to dene a contract in terms of one of its
tionship. These include:
characteristics is tautological.
the form of the contract;
Organisation test The organisation test was developed in French law and adopted by South African law in
R v AMCA Services and Another. It is based upon the assumption that whether or not one is an employment does
not rest on submission to orders; it depends on whether
the person is part and parcel of the organisation.
In other words, one looks at the extent to which a person (the worker) is integrated into the organisation of the
other person (the employer), or whether the person is performing work inside the organisation of another.
The work of an independent contractor, although done for
the business, is not integrated into it; it is only accessory
to it.[5]
If a person is incorporated into or related suciently to
the organisation, that person will be regarded as an employee or a worker even though the employer might exercise little actual control over him.
One of the problems with this test is that it is not always
possible to measure the extent of integration, or to determine what degree of integration is sucient for someone
to qualify as an employee.
The test was rejected by the Appellate Division in S v
AMCA Services on the basis of its being too vague.

the right to supervision (in other words, whether the

employer has the right to supervise the person);
the extent to which the worker depends on the employer in the performance of his duties;
whether the employee is not allowed to work for
another;[6]
whether the worker is required to devote a specic
amount of time to his work;
whether the worker is obliged to perform his duties
personally;[7]
whether the worker is paid according to a xed rate
or by commission;
whether the worker provides his own tools and
equipment; and
whether the employer has the right to discipline, suspend and dismiss the worker.[8]
The decisive dierence between the control test and the
dominant-impression test is that, in the latter, the existence or absence of control is only one of the factors to
be taken into account.

In Smit v Workmens Compensation Commissioner, the

Multiple or dominant-impression test The deciencourt had to decide whether Smit, who had been emcies of the control and organisation tests led the courts to
ployed as an agent for an insurance company, was an
approach the question in the same way that they approach
employee or not. He had been
so many other problems: The relationship is viewed as a
whole; a conclusion is drawn from the entire picture.
remunerated on a commission-basis;
In Ongevallekommissaris v Onderlinge Verseker forbidden to perform certain acts (such as pledging
ingsgenootskap AV-BOB, although the court did not spell
out exactly what may be included in the general picture,
the companys credit) without written authority;

3.1

Parties

forbidden from working for another company at the

same time, but was not required to work full-time
and could do other work at dierent times;

5
a contract which looks like one of employment
sheds no light whatsoever on the legal nature of
the relationship.

given the use of a company motor-car, but had to

pay of out of his own pocket for fuel and servicing;

This criticism is based on the idea that it is not helpful to

say a particular relationship exists because it looks like it
working closely with a manager, but there was a total does.
absence of any right of supervision and control of
Smit by the insurance company; and
Productive capacity test In other decisions, the courts
able to obtain assistance from others in performing appear to have resorted to what may be described as the
his duties.
productive capacity test.
This test was formulated in Martin Brasseys article The
The dominant-impression test was followed in this case, Nature of Employment in the following terms:
and Smit was held to not be an employee of the insurance
company.
The independent contractor sells the job
In Medical Association of SA v Minister of Health, several
whereas the employee sells his hands [...
district surgeons challenged the decision of the provincial
E]mployment is a relationship in which one
MEC for Health for the Free State to terminate their conperson is obliged, by contract or otherwise, to
tracts summarily as part of the restructuring of the district
place his or her capacity to work at the disposal
health service. The multiple or dominant impression test
of another [... A]n employee is to be distinwas followed, and the court used the factors discussed in
guished from an independent contractor, who
Smit to assist it in obtaining the dominant impression that
undertakes to deliver, not his or her capacity to
part-time district surgeons were in fact employees of the
produce, but the product of that capacity, the
State.
completed work.
The court held that the dominant-impression tests entails
that one should have regard to all those considerations or
indica which would contribute towards a determination
of whether the contract is one of service or of work, and
react to the impression one gets upon a consideration of
all such indica. The Labour Court based its decision on
the following factors:
The doctors rendered personal services.

Dierences between employees and independent contractors In SA Broadcasting Corporation v McKenzie,

the Labour Appeal Court summarised the main dierences between the contract of employment proper and
what is called the contract of work (locatio conductio
operis):

The doctors were expected to be at the beck and

call of the employer 24 hours a day, and to give
preference to ocial duties over those in their private practices.

In the rst, the object is the rendering of personal

services between employer and employee; in the
second, the object is the production of a certain
specied service or the production of a certain specied result.

The employer was obliged to pay a contractual

salary to the doctors even in the absence of any actual work being performed, as long as the doctors
made themselves available to do the work.

The employee renders the service at the behest of the

employer; the independent contractor is not obliged
to perform his work personally, unless otherwise
agreed.

Even though the doctors were professionals, the

provincial administration did have some control over
the way in which services were rendered.

The employer may decide whether it wishes to have

employee render service; the independent contractor is bound to perform specied work or produce a
specied result within a specied or reasonable time.

The test has been subjected to severe criticism. Etienne

Mureinik has said that it test

The employee is obliged to obey lawful, reasonable

instructions regarding work to be done, and the manner in which it is to be done; the independent contractor is not obliged to obey instructions regarding
the manner in which a task is to be performed.

oers no guidance in answering the (legal)

question whether the facts are of such a nature
that the individual may be held to be servant
within the meaning of the common law in difcult (penumbral) cases. Indeed, it is no test
at all. To say that an employment contract is

A contract of employment proper is terminated by

the death of the employee; the contract of work is
not terminated by the death of the contractor.

EMPLOYMENT CONTRACT

A contract of employment terminates on comple- 3.1.5 Essentials

tion of the agreed period; the contract of work terminates on completion of the specied work, or on The common-law concept of employment sets the scene
for the interpretation of the Labour Relations Act 1995.
production of the specied result.
The contract of employment is the foundation of the relaLabour Relations Act 1995 s 200A There is very lit- tionship between an employee and his employer. It links
tle work that cannot be outsourced. Outsourcing is gener- the two parties in an employment relationship, irrespecally not supported by trade unions, who represent employ- tive of the form the contract takes.
ees. If work is outsourced, the worker is an independent The existence of an employment relationship is the startcontractor. Political pressure was placed on government ing point for the application of all labour law rules. Withto move away from outsourcing and more towards em- out an employment relationship between the parties, the
ployment.
rules of labour law do not apply.
In 2002, accordingly, a new presumption was added to The origin of South Africas modern contract of employthe Labour Relations Act 1995, providing guidelines on ment lie in Roman law, where a distinction was made bewhen it has to be ascertained whether or not someone is an tween the two types of contracts discussed above: locatio
employee. This presumption was introduced as a part of conductio operis and locatio conductio operarum.
signicant amendments to the Labour Relations Act 1995
and the Basic Conditions of Employment Act in 2002.[9] In terms of the common law, one does not have to have
a written contract; therefore, not having the contract in
The eect of this rebuttable presumption is that, if one written form is not a fatal aw, as the contract can be
or more of the list of factors is present, the person is pre- verbal. There are, however, a number of statutes which
sumed to be an employee unless and until the contrary is require specic contracts of employment to be in writproven. Many of the factors and issues discussed by the ing. Section 29 of the Basic Conditions of Employment
courts in the cases above resurface again: The presump- Act, for example, states that the employer must supply
tion is thus created
the employee with certain written particulars concerning
specic things, like hours worked and remuneration.
if the manner in which the person works is subject
Like any contract, the locatio conductio operarum comto the control or direction of another person;
mences when the parties have agreed to its essential
if the persons hours of work are subject to the con- terms, unless both parties have agreed to suspend its optrol or direction of another person;
eration for a particular period. If the contracts operation
if, in the case of a person who works for an organi- is suspended, the employer is obliged to allow the employee to commence work on the specied date. Failure
sation, the person forms part of that organisation;
to do so, without good cause, constitutes a breach of con if the person has worked for that other person for tract at common law and a dismissal under the Labour
an average of at least forty hours per month over the Relations Act 1995. It is important, therefore, to deterlast three months;
mine what the essentials of the contract of employment
if the person is economically dependent on the per- are.
son for whom he works or renders services;
Stripped to its essence, the contract of employment today
if the person is provided with tools of trade or work may be dened as an agreement between two parties, in
terms of which one party (the employee) works for anequipment by the other person; and
other (the employer) in exchange for remuneration. Al if the person only works for or renders services to though this denition appears to be simple, it contains a
one person.
number of important principles, aspects and implications.
When they are taken into account below, the denition of
The legislative provision has been taken by some to be the employment contract may be expanded as follows:
merely a restatement or summary of the principles laid
down by the courts with the passing of time.
The contract of employment is a voluntary
Although this presumption is useful in determining
whether a person is an employee or not, as it is closely
linked to the principles and approaches developed by the
courts, the Labour Court held, in Catlin v CCMA, that
section 200A does not do away with the principle that the
true nature of the relationship between the parties must be
gathered from the contract between them. Section 200A
is not the starting point, therefore; the court held that it
is necessary to consider the provisions of the contract before applying the presumptions.

agreement between two legal personae (the

parties) in terms of which one party (the employee) places his or her personal services or
labour potential at the disposal of the other
party (the employer) for an indenite or determined period in exchange for some form
of xed or ascertainable remuneration, which
may include money and/or payments in kind.
This entitles the employer to dene the employees duties and to control the manner in

3.1

Parties
which the employee discharges them.

Agreement Firstly, it must be noted that the employment contract is based on agreement; the parties must enter into it voluntarily. This idea nds expression in section
13 of the Constitution, which provides that no one may
be subjected to slavery, servitude or forced labour, and
section 48 of the Basic Conditions of Employment Act,
which states that all forced labour is prohibited.

7
owing to any person in return for that person working for
any other person, including the State.
The contract may state that remuneration is the normal
going rate for a specic type of work, or state a specic
amount or merely minimum wage.
The common law does not indicate minimum wages;
these are usually set by collective-bargaining councils and
are industry specic.

Another implication of the fact that the employment contract is based on agreement is that it is a contract, and
therefore must comply with the requirements of our law
for a valid contract. If it does not comply with these requirements, it will not be regarded as binding and enforceable.

Reciprocity The contract of employment is a reciprocal contract. This means that one promise is made
in exchange for another, and one obligation is incurred
in exchange for the other. The employee works in exchange for remuneration; the employer remunerates the
employee in exchange for the employee oering to place
Consensus between the parties means that both must have his labour potential at the disposal and under the control
a serious intention to create mutual rights and duties to of the employer.
which they will be legally bound. They must have each
been fully aware of the nature of the duties, and that the
Summary To summarise, the essential elements of the
other had this intention.
employment contract are as follows:
At common law, the parties are not required to observe
any formalities. There is no requirement that the con It is a voluntary agreement.
tract be in writing, but certain employment contracts are
required by statute to be in writing, like those of merchant
There are two legal personae.
seamen and learners under the Skills Development Act.
In addition, those of apprentices and candidate attorneys
The employee agrees to perform certain specied or
must also be registered with the appropriate authorities.
implied duties for the employer.
Lastly, where parties wish to alter provisions of the Basic Conditions of Employment Act, this must be done in
writing.

There is an indenite or specied period.

The employer agrees to pay a xed or ascertainable
remuneration to the employee.

Work Secondly, one of the pivotal concepts in the initial denition is that of work. Generally, to work means
The employer gains a (qualied) right to command
to place ones labour potential at the disposal and under
the employee as to the manner in which he carries
the control of another. This means that, when we work,
out his duties.
we oer our services to another person, and agree that
the other person will be able to tell us what to do, when
to do it, how to do it and where to do it.
3.1.6 Duties
To place your labour potential at the disposal of another
means to oer your ability to perform certain tasks to an- An employment relationship commences only when the
other person, and to oer, at the same time to follow that parties conclude a contract of service. Prior to this, neither party has any rights against the other; they are merely
persons instructions.
a prospective employee and a prospective employer.
There are, however, two statutory exceptions to the prinRemuneration Remuneration normally takes the form ciple that employers have no obligations to applicants for
of payment of money, or the provision of another benet. employment:
(According to the common law, payment may be made in
kind.)
1. The EEA prohibits direct or indirect unfair discrimPayment may be made monthly, weekly, daily or even
ination against an employee or applicant for employin irregular cash payments. The common law does not
ment on the basis of race, colour, gender, sex, reliprescribe what form payment must take.
gion, political opinion, ethnic or social origin, sexual
The Labour Relations Act 1995 contains a statutory deforientation, age, disability, religion, conscience, beinition of remuneration in section 213: any payment in
lief, culture, language, family responsibility, marital
money or in kind, or both in money and in kind, made or
status or any other arbitrary ground.

3
2. The Labour Relations Act 1995 and the Basic Conditions of Employment Act protect both employees and persons seeking employment against discrimination for exercising rights conferred by the
Acts.[10][11]

EMPLOYMENT CONTRACT

It has become a widespread practice for employers to

make up remuneration packages for their higher-paid
employees in a tax-eective way, by substituting various
benets (like housing and car allowances) for the cash
component of the salary.

The periodicity of payment depends on the parties agreeEmployer In addition to the three principle duties of ment or on custom.
the employer, discussed below, employers are further An employer may not unilaterally deduct any amount
obliged to accord employees their rights in terms of the from the remuneration to which an employee is entitled.
applicable contracts of service, collective agreements and
If the contract is terminated summarily for good cause,
legislation, as well as to adhere to certain statutory duties
the employer must pay the employee for services rendered
imposed in the interests of employees.
to the day of the dismissal. The same principle applies
when the employee deserts mid-term before the end of a
Receipt into service The employers obligation to re- xed-term contract or without proper notice.
ceive the employee into service is the corollary of the employees duty to enter and remain in service.
Safe and healthy working conditions
Under the
The duty to receive employees into service does not mean common law, employers are obliged to provide their emthat employers must necessarily provide employees with ployees with reasonably safe and healthy working condiwork to keep them busy, although this general rule is sub- tions.
ject to some exceptions: where, for example, remunera- The scope of this duty extends to providing proper mation is based on the volume of work done, as in the case chinery and equipment, properly trained and competent
of piece-workers or salespersons working on commission, supervisory sta, and a safe system of working.
or where the failure to allow the employee to work degrades his status. A duty to provide work may also arise If the employer fails to meet this obligation, aected emwhere the employer has contracted to train the employee ployees are not in breach of contract if they refuse to work
in a particular profession or trade, as in the case of article until the dangerous situation is corrected.
clerks and apprentices.
Under the common law, employees had to rely on delict
The common law permits the suspension of an employee, if the employer did not ensure that the working condisuspected of some form of grave misconduct, while the tions were safe and healthy, but this was viewed to be
matter is being investigated, but the employee is entitled imprecise, and the Legislature intervened. The situation
is now governed by the Occupational Health and Safety
to his remuneration during the period of suspension.
Act, which implements strict liability on the employer,
Employers may deny their employees access to the work- and states how much must be paid to the employee if acplace, or otherwise prevent them from working, in the cidents occur.
course of collective bargaining. This is known as a lock
out, and is the employers equivalent of the employees
strike. If a lock out is lawfulif, that is, it complies with Remedies If the breach is material, the employee may
the Labour Relations Act 1995the employer is relieved claim damages. Provided it is a material breach, the emof its obligation to pay the locked-out employees their ployee may also cancel the contract of employment.
wages.
The employee may also claim specic performance. This
Since the contract of employment is personal, one em- was seldom granted in the past but is now considered an
ployer cannot compel an employee to work for another option.
if the rst employer has no work for him, unless the rst
Finally, the employee may refuse to work, withholding
employers business is transferred as a going concern.
labour until the contract is performed.
Payment This duty is so fundamental to the employment contract that the courts will assume, where there
has been no agreement on remuneration, either that the
contract is not a contract of employment, or else that the
parties impliedly intended the payment of a reasonable
sum according to the custom and practice of the industry
and locality.

Employee
Entering and remaining in service The main obligation of the employee under the contract is to place his
personal services at the disposal of his employer.

The tender of service is a prerequisite to and the corolThe duty to pay, and the commensurate right to remu- lary of the employees right to claim payment of wages:
neration, arises not from the actual performance of work, no work, no pay. The reverse also applies: no pay, no
work, so that employees who have not been paid may
but from the tendering of service.

3.1

Parties

legitimately refuse to work without breaching their con- The interests of Employees must be bona de: They may
tracts.
not work for another employer if its business interests are
If a number of workers engage in a concerted cessation of in conict with those of the principle employer.
work for the purpose of obtaining some concession from
their employer, they are deemed to be on strike. Under
the common law, striking workers need not be paid. The
common law also allowed employers summarily to dismiss striking employees, but this has since been changed
by the Labour Relations Act 1995.

In the absence of a contrary provision in the contract,

there is nothing to preclude employees from holding two
compatible jobs, provided the second is not conducted
during the working hours they are obliged to devote to
the rst job. Contractual provisions limiting employees
moonlighting activities are, however, permissible.

Subject to the right to take such paid leave as has been In addition, employees may not compete with their emagreed upon or conferred by statute, once employees have ployers business for their own account.
entered service, they remain obliged to render service until the contract of employment ends.
Respect and obedience Respect and obedience are reIf the employee fails to render service (by desertion, ab- garded as an implied duty of every employee. Absence
senteeism, abscondment, unpunctuality, etc.), the em- of the former renders the interpersonal relationship beployer is entitled to deduct from the employees wage an tween employer and employee intolerable; denial of the
amount proportional to the absence.
latter undermines the employers right to decide how its
employees will work.
Reasonable eciency Employees are deemed by law The courts require all employees to show a reasonable deto guarantee impliedly that they are capable of perform- gree of respect and courtesy to their employers, and to
ing the tasks they agree to perform, and that they will obey their employers reasonable and lawful instructions.
carry them out with reasonable eciency.
Respect, being a disposition, is a quality that is dicult
Where an employer seeks assurances about employees to dene with precision. It is not to be equated with defcompetence before taking them into service, the employ- erence in a manner compatible with the subordinate posiees are bound by any representations they may make, tion in which the employee by denition stands vis--vis
whether those professions of competence are made by the the employer.
employees themselves, or in testimonials of which they
Mere failure on occasion to greet the employer or supeare aware.
riors will not place employees in breach of their obligaThe standard of competence employers are entitled to tion to show respect. Disrespect must be gross if it is to
expect of their employees depends on the capacities in justify termination of the employment relationship, or so
which the employees are engaged and the status and se- frequent as to suggest that the employee has repudiated
niority accorded them.
the employers lawful authority, or that it has rendered
The test for the standard of competence is that of per- the continuation of the employment relationship intolsons comparable with the employees in question, having erable.
regard to training, experience and any special claims the Each case must be considered on its own merits to estabemployee might have made regarding his competence.
lish whether these inferences may be drawn.
Where an employee has warranted that he possesses a Unless insolence is particularly gross, the proper sanction
particular degree of skill, he must satisfy that representa- is a written warning in the rst instance.
tion.
The employees duty of obedience applies only to workrelated orders and generally during working hours and to
Furthering employers business interests Employ- those orders which are lawful and reasonable.
ees are obliged to devote their energies and skills to fur- Employees are also entitled to disobey instructions that
thering their employers business interests. They must would subject them to personal dangers not normally condevote all their normal working hours to the employers nected with the performance of their duties.
business; they may not, without the employers permission, simultaneously work for another employer during An order is unlawful if it requires the employee to perthe hours they are contractually obliged to devote to their form an illegal act or to do something that falls outside
the scope of the contractual relationship.
employers needs.
These duties arise because the relationship between the
parties is of a duciary nature: Employees may not place
themselves in positions where their own interests conict
with those of their employers and may not, by exercising their powers of agency, acquire interests or benets
without the knowledge of their employers.

Refraining from misconduct generally Any misconduct that renders the continuation of the employment relationship intolerable or unworkable, or undermines trust
and condence between employer and employee, is regarded as sucient to justify dismissal, provided it is se-

10

BASIC EMPLOYMENT RIGHTS

rious enough to oset the importance which the courts achieved; employers must, at the very least, abide by the
otherwise attach to the work security of employees. Ex- Basic Conditions of Employment Act.
amples of misconduct are insubordination, theft, fraud.
Minimum wages are the result of bargaining councils in
With regard to misconduct committed before the forma- most circumstances, but some professions have no bartion of the conduct (like the commission of a serious gaining councils. Their minimum wage is therefore regcrime), the general principle is that there is no duty on ulated by the Basic Conditions of Employment Act.
prospective employees to disclose prejudicial information
from their past to their future employers unless they are
specically asked to do so.
4.2 Hours
A duty may arise, however, where the non-disclosure is
material and amounts to fraud. Whether or not an em- A maximum of 45 hours per week is allowed to be
ployee may be dismissed for non-disclosure depends on worked.
whether or not the employment relationship can reasonably be sustained after the discovery of the past misdeed.
4.2.1 Overtime
Remedies The employer may only dismiss the em- Overtime is permitted on the basis of a voluntary agreeployee summarily for misconduct, incapacity or opera- ment.
tional reasons. If damages are incurred as a result of a Payment for overtime is 1 times the normal wage.
breach of one of these duties, the employer may claim
compensation.
4.2.2 Sundays

Basic employment rights

Payment for working on a Sunday is twice the normal

wage.

The Basic Conditions of Employment Act is aimed at

low-income earners: those who earn less than R193,805
4.2.3 Meal intervals
per annum.[12]
No matter what the contract itself says, the Basic Condi- An employee is entitled to one hour o during every
tions of Employment Act is applicable as the minimum workday. This may be varied by agreement, but the emstandard that must be achieved.
ployee must have at least thirty minutes o for lunchtime;
The Labour Relations Act 1995 deals with strikes and the parties may not agree to a break of less than thirty
unions and the like; the Basic Conditions of Employment minutes.
Act is a fall back option for those vulnerable workers who
are not able to unionize due to various reasons, such as
the kind of work they do. Domestic and farm workers 4.2.4 Weekly rest periods
are pertinent examples in the South African context.
An employee is entitled to 36 consecutive hours o. IsThe purpose of the Basic Conditions of Employment Act sues such as night work, holidays and public holidays are
is to advance economic development by providing basic also covered.
conditions of employment.
The Basic Conditions of Employment Act also contains
the denition of an employee, so that issue, discussed
above, is relevant here, too. The Minister is empowered to extend the provisions of the Basic Conditions of
Employment Act to non-employees in specic circumstances. Even, therefore, if a domestic worker is not considered an employee in terms of the Basic Conditions of
Employment Act, the Minister may extend the provisions
to her for her own protection.

4.2.5 Sick leave

An employee is entitled to 36 days o over a three-year
period.
4.2.6 Maternity leave

An employee is entitled to four months o in total. It does

not, however, stipulate that this is paid leave. In terms of
the Unemployment Insurance Fund, when a woman is on
4.1 Minimum Wage
maternity leave, she is entitled to Unemployment InsurThe employer has no discretion to pay less than the min- ance Fund benets for half the time spent away. Usually
imum wage. As noted above, the Basic Conditions of the employer will pay the other half, but this is not reEmployment Act provides the minimum standard to be quired in the Basic Conditions of Employment Act.

5.1
4.2.7

Scope of protection

11

Family-responsibility leave

Unfair conduct by the employer at the beginning of the

relationship normally takes the form of unfair discrimiIf the employee has been working for more than four nation. Unfair conduct by the employer at the end of the
months, he is entitled to family-responsibility leave, as relationship normally takes the form of unfair dismissal.
in the case where there has been a death in his family.
Unfair conduct by the employer during the subsistence of
the relationship will take the form of unfair labour practice.
4.2.8 Remuneration
Section 186(2) of the Labour Relations Act 1995 denes
Employers must keep records of the hours worked and an unfair labour practice as an unfair act or omission
remuneration awarded for each employee for at least three that arises between an employer and an employee, and
involves
years.
Employees are to be paid in South African currency at the
place of work (unless this is altered in the contract).
Employers may not deduct money from employees unless
prior consent in writing is obtained.
Regarding severance pay, in cases of retrenchments or
dismissals for operational reasons, employees are entitled
to one weeks pay for every year worked.
4.2.9

Variations

The Basic Conditions of Employment Act is the very minimum standard required by employers. Employers may
award more, but never less, than what is stipulated.
If an employer gives more than the minimum, he may
be locked into always giving more, as he must then abide
by the required annual increases, which are based on a
percentage of the current pay.
An employer may vary the provisions in the contract by
individual agreement; or
collective agreement on an industry-wide basis.

Unfair labour practices

In the past, the concept of unfair labour practice

was broadly dened. The Industrial Court (a specialist tribunal that exercised jurisdiction over alleged unfair labour practices) took several innovative approaches.
The court formulated a set of rules to govern unfair dismissals. These rules are now contained in Chapter VIII of
the Labour Relations Act 1995 and in the Code of Good
Practice: Dismissal.[13]

unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee, or relating to the provision of benets to an
employee;
the unfair suspension of an employee, or any other
unfair disciplinary action short of dismissal;
a failure or refusal by an employer to reinstate or reemploy a former employee in terms of any agreement; and
an occupational detriment, other than dismissal, in
contravention of the Protected Disclosures Act,[14]
on account of the employees having made a protected disclosure dened in that Act.

5.1 Scope of protection

The rst part of section 186(2) speaks of an unfair labour
practice as any unfair act or omission that arises between
an employer and an employee. Only persons who are already in employment, therefore, enjoy protection against
unfair labour practices; only persons, that is, who fall
within the denition of employee.
This concept may also cover ex-employees, if an employer refuses or fails to re-employ a former employee
in terms of an agreement, for example.

5.2 Exhaustive list

Due to the use of the word involving, the courts have

held that the list of unfair labour practices, contained in
The employment relationship has three stages:
section 186(2), is exhaustive. Therefore the denition of
unfair labour practice in the current Labour Relations
the beginning, when the employee is an applicant for Act is considerably narrower than that of its predecessor,
the Labour relations Act of 1956. This is because conemployment;
cepts such as unfair discrimination have been removed
the middle, which continues as long as the relation- from its ambit and included in the EEA.
ship continues; and
The fact that the list is exhaustive raises three issues, as
the end, which may take the form of dismissal, res- the Constitution expressly aords everyone the right to
ignation or retirement.
fair labour practices:[15]

12

UNFAIR LABOUR PRACTICES

1. whether the limitation of the constitutional right is Factors which are taken into account include any dierjustiable, which according to the general consensus ence in remuneration levels, fringe benets, status, levels
it is;
of responsibility or authority or power, and the level of
job security.
2. the actual interpretation of this denition; and
In Mashegoane v University of the North, the dispute was
3. the freedom of employees to rely directly on the whether the universitys refusal to appoint a lecturer to the
Constitution, as opposed to the current Labour Re- position of Dean of a faculty involved a promotion. The
legislation governing the university provided that Deans
lations Relations Act.
were appointed by the Senate acting on the recommendaWith regard to the interpretation of this denition, the tion of the Faculty Board. The university argued
general principle is that legislation that limits constitutional rights must be interpreted in such a way as to minimise the limitation. The denition must be interpreted
so as to give the maximum possible protection.

that the position of the Dean was not applied for; and
that it was not a promotion; but

that it was a nomination.

With regard to the freedom to rely directly on the Constitution, employees may rely directly on the Constitution to
challenge practices not covered by the Labour Relations Once the court established that the applicant was a current
Act 1995, like transfers. This issue, however, remains to employee, it found that his salary would have remained
be developed by the courts.
the same, but that he would have received a Deans allowance and would have had a car at his disposal; these
were the only benets. His status would have been consid5.3 Promotion and demotion
erably elevated. He would have had more responsibilities,
authority and powers. In light of this, the appointment
5.3.1 Basic principles
amounted to a promotion.
Many cases have been referred to the Commission for In Nawa v Department of Trade and Industry, however,
Conciliation, Mediation and Arbitration and the courts the court held that there was no promotion because there
in this regard. From these cases, three main issues arise: was no intention to change the existing terms and conditions of employment, even though there was an intention
to change the way in which work was done.
1. the meaning of promotion and demotion;"
Generally the Commission for Conciliation, Mediation
2. the unfairness of the employers conduct; and
and Arbitration and other institutions are quick to assume
that there was indeed a promotion or demotion.
3. remedies.
Disputes concerning Promotion and Demotion generally involve employees being denied a higher-level post
Meaning Employers commonly use one of two sys- within the structure of the employers orginization or betems to promote employees:
ing stripped of status or benets.
1. level progression, whereby employees are evaluated
on a regular basis and progress to a higher level Unfairness Generally, unfairness implies a failure to
meet an objective standard, and includes arbitrary, capriwithin the parameters of the job in question; and
cious or inconsistent conduct, regardless of whether it is
2. the application-for-vacancies system, whereby va- intentional or negligent.
cancies are advertised, and both current employees Mere unhappiness on the part of the employee is not unand external applicants are invited to apply for posts. fair.
With regard to substantive fairness, it may be dicult
to justify the choice of a particular candidate in precise
terms. An employer is at liberty to take into account subjective factors, such as performance at an interview, when
considering an appointment or promotion. The employer
Firstly, in order to constitute a dispute concerning pro- must still provide reasons, however.
motion or demotion, the aggrieved individual must be an With regard to procedural fairness, the employer must
employee of the employer to which he wishes to take ac- follow its own procedures: If there is a practice of advertion.
tising the posts, it may not, without good reason, depart
The second system is problematic. The Commission for
Conciliation, Mediation and Arbitration and the courts
have held that it is not promotion at all, as the employee
is nothing other than a job applicant.

Secondly, one must compare the current job held by the from that policy. An employee may challenge the comemployee with the job applied for.
position and competency of a selection panel.

5.3

Promotion and demotion

13

Examples of unfairness include bias, nepotism and erro- above. It has been held that the term benets in the
neous exclusion of an employee from a shortlist due to a denition of an unfair labour practice includes only benmistake by the employer or selection committee.
ets ex contractu and ex lege: benets that already exist in
terms of a contract or law.
Remedies The relief must be determined on terms There is growing support for the notion that unfair labour
practices should include not only disputes of right, but
deemed reasonable by the Commissioner.
also disputes where there is an expectation of a right.
Relief may be in the form of a declaratory order, protective promotion, remitting the matter back to the employer
for reconsideration, and reinstatement to a previous posi- 5.3.4 Training
tion (in the case of demotion).
This prohibition has had little impact in practice. In view,
however, of the obligations placed on employers in terms
5.3.2 Probation
of the EEA and Skills Development Act, it may become
Guidelines may be gathered from the rules which govern more important in the future.
the obligations of the employer before a fair decision to Generally employees may challenge the denial of training
dismiss on the grounds of poor performance is reached, where such training is a prerequisite for advancement in
and also from the Code of Good Practice: Dismissals.
the workplace.
In this context, unfair conduct may include the failure
to inform the employee properly about required perfor5.3.5 Unfair suspensions
mance standards, and the failure by an employer to aord
the employee reasonable guidance, evaluation, training,
There are two types of suspension:
counselling and instruction.
5.3.3

Provision of benets

An employer may commit an unfair labour practice

through unfair conduct relating to the provision of benets.

preventative suspension, where disciplinary charges

are being investigated against an employee, and the
employer wants to suspend the employee pending
the outcome of the disciplinary enquiry; and
punitive suspension, where suspension is imposed as
a disciplinary measure short of dismissal after the
disciplinary hearing has been held.

This provision, contained in section 186(2)(a) of the

Labour Relations Act 1995, does not appear to be problematic, but it has been beset by considerable uncertainIn the context of section 186(2)(b), one must consider
ties regarding the interpretation of benets.
whether both types of suspension are covered, and what
Early decisions of the Commission for Conciliation, Methe requirements for a fair suspension are.
diation and Arbitration attached a wide meaning to the
Initially the view was taken that only punitive suspensions
term benets.
fell within the scope of the unfair labour practice, but
The problem is complicated by section 65(1)(c) of the
this view was rejected by the Labour Court.
Labour Relations Act 1995, which provides that employees may not strike over issues that may be referred to ar- The Commission for Conciliation, Mediation and Arbitration in terms of the Labour Relations Act 1995. A bitration follows the Labour Courts view and assumes
dispute over benets may be referred to arbitration. If jurisdiction over both punitive and preventative suspenbenets is given a wide meaning, and is taken to include sions.
remuneration, this would mean that employees may not The practice of preventative suspension is not in itself unstrike over wages and salaries.
fair so long as there is substantive and procedural fairness
There are two approaches to resolving the problem of in- when the employer takes this decision.
terpretation:
Substantive fairness in this context refers to the reason
for the suspension. The employer must have a reason
1. focus on the meaning of the word benet, and try
for believing that the suspension is necessary. This could
dene it; or
be, for example, where the seriousness of the misconduct
2. focus on the nature of the dispute itself, bearing in creates rumours and suspicion, necessitating a suspension
mind the distinction between disputes over rights of the employee in order for work to carry on smoothly,
or where the employer has reason to fear that the emand disputes over interests.[16]
ployee in question may interfere with the investigation or
Generally the courts take a narrow approach to interpre- the witnesses. It may also be that the employer fears antation. They apply a combination of the two approaches other recurrence of the misconduct, or that the seniority

14

UNFAIR LABOUR PRACTICES

and authority of the employee in question has a bearing Occupational detriment includes, inter alia, being subon the matter.
jected to disciplinary action; dismissed, suspended, deProcedural fairness does not necessarily mean that the moted, harassed or intimidated; transferred against ones
employee must be given a hearing before the suspension. will, refused transfer or promotion, etc.
At least, though, that the employer must inform him of Once it is established that the employee has suered an
the suspension, the reasons for it, and the conditions of occupational detriment, it must be proved that the detrithe suspension.
ment was due to a protected disclosure. This means that
As a general rule, the employer must continue remuner- there must be a protected disclosure, and that there must
ating the employee during the course of the suspension. be causality between the disclosure and the detriment.
If he were to cease remuneration, this would constitute a As far as causality is concerned, the Labour Relations Act
breach of contract.
1995 requires that the detriment must be on account of
Suspension without pay is generally only possible if the the protected disclosure.
employee consents, or if this is provided by legislation or Disclosure is dened as any disclosure of information
the contract of employment itself.
regarding any conduct of an employer, or an employee of
If the suspension is grossly unfair, the employee may seek that employer, made by any employee who has reason to
believe that the information concerned shows or tends to
reinstatement as a remedy.
show one or more of the following:
Where the unfairness is less serious, the employee may
seek an alteration of the conditions of the suspension
that a criminal oence has been committed, is beor require that the employer hold a disciplinary hearing
ing committed or is likely to be committed;
within a specied time.
that a person has failed, is failing or is likely to fail
to comply with any legal obligation to which that
person is subject;
5.3.6 Other disciplinary action short of dismissal
Other disciplinary actions, like warnings, suspensions
with or without pay, demotions and transfers, must also
meet the requirement of fairness. The employer must
be able to show that the warning, demotion or other disciplinary action was fair and appropriate in the circumstances.

5.3.7

Failure or refusal to reinstate

Section 186(2)(c) of the Labour Relations Act 1995 protects employees against a failure or refusal of an employer to reinstate or re-employ a former employee in
terms of any agreement.

that a miscarriage of justice has occurred, is occurring or is likely to occur;

that the health or safety of an individual has been,
is being or is likely to be endangered;
that the environment has been, is being or is likely
to be damaged;
unfair discrimination as contemplated in the Promotion of Equality and Prevention of Unfair Discrimination Act [...]; or
that any matter referred to [above] has been, is being or is likely to be deliberately concealed.

The wording is almost exactly the same as that in sec- Generally, such disclosures become protected when they
tion 186(d), which deals with dismissal. Unlike section are made to certain persons and oces under certain con186(2)(d), however, section 186(2)(c) does not deal with ditions:
termination of employment; nor does it state that there
must be an oer of re-employment to some employees
it was made in good faith;
and no oer in respect of others. Furthermore, sec the employee reasonably believes that it is substantion 186(2)(d) does not refer to an agreement; section
tially true; and
186(2)(c) does.
it was not made for personal gain.
5.3.8

Protected disclosures

Furthermore, the employee must have reason to believe

Any occupational detriment an employee may suer due

to the making of a protected disclosure is an unfair labour
practice.

that, if disclosure is made to the employer, he will

suer an occupational detriment;

Occupational detriment and protected disclosure are

dened in the Protected Disclosures Act.

that the information was previously disclosed, and

no action was taken by the employer; or

15
that the matter is exceptionally serious.
Not every disclosure made by an employee will be protected. Only gradually are the courts beginning to consider the nature of a protected disclosure and the protection to be aorded to employees.
In Grieve v Denel, the employee was busy preparing a report for the employers board of directors relating to allegations of wrongdoing by a manager. The employee
found himself charged with misconduct, suspended and
told to attend a disciplinary enquiry. He approached the
Labour Court for an interdict to stop the employers taking disciplinary action. The court held that the disclosures the employee intended to make were in good faith,
and that, if the allegations were true, they could indicate
possible criminal conduct. The disclosures were held to
fall within the ambit of protection. The employer was ordered not to proceed with the pending disciplinary action.
In CWU v Mobile Telephone Networks, the Labour Court
held that an employees accusation of fraud by management did not constitute a protected disclosure; it was
merely the employees opinion and was not supported by
any facts.
5.3.9

1. protection against unfair dismissal;

2. protection against unfair labour practices; and
3. the setting of minimum conditions of employment
in the Basic Conditions of Employment Act.
The fourth mechanism of protection is protection against
unfair discrimination.
The Labour Relations Act 1995 was the rst piece of legislation to deal with discrimination in the workplace.
The EEA also contains detailed provisions to counteract
and eliminate discrimination in the workplace.
The Constitution, with its right to equality,[17] provides an
important constitutional context for employment equity.
A consideration of this constitutional provision indicates
that the elimination of discrimination has two bases:
formal equality, or equality in treatment; and
substantive equality, enshrined in the adoption of
positive measures to empower previously disadvantaged groups in South African society; also known
as armative action.

Resolution of disputes

Section 6 of the EEA contains the main thrust of the Acts

The procedure for resolving unfair-labour-practice dis- prohibition against unfair discrimination. It provides that
putes is similar to the dispute resolution for unfair dismissals.
no person may unfairly discriminate, directly or indirectly, against an employee, in
First, the dispute must be referred to a bargaining counany employment policy or practice, on one
cil (or the Commission for Conciliation, Mediation and
or more grounds, including race, gender, sex,
Arbitration if there is no bargaining council) for concilipregnancy, marital status, family responsibilation.
ity, ethnic or social origin, colour, sexual oriIf conciliation does not succeed, the matter may be reentation, age, disability, religion, HIV status,
ferred to arbitration.
conscience, belief, political opinion, culture,
Unlike unfair dismissal disputes, unfair-labour-practice
language and birth.
disputes are required, by section 191 of the Labour Relations Act 1995, to be referred within ninety days of the
It is not unfair discrimination
relevant act or omission, or ninety days from the date on
which the employee became aware of the act or occur to take armative action measures consistent with
rence.
the purpose of the Act; or
In terms of section 193(4) of the Labour Relations Act
1995, an arbitrator has the power to determine any unfair
to distinguish, exclude or prefer any person on the
labour practice dispute on reasonable terms, which may
basis of an inherent requirement of a job.[18]
include ordering reinstatement, re-employment or compensation (of up to twelve months pay).
Harassment of an employee is a form of unfair discrimiThe onus is on the employee to prove all the elements of nation, and is prohibited on any of the above grounds.[19]
the alleged unfair labour practice in question.
Furthermore, the EEA places a positive duty on every
employer to take steps to promote equal opportunity in
the workplace by eliminating unfair discrimination in
6 Discrimination law
any employment policy or practice.[20] In certain circumstances there may be a duty on the employer to take reaSeen generally, there are three mechanisms designed to sonable measures to accommodate certain groups of emprotect the individual employee:
ployees.

16

6 DISCRIMINATION LAW

In this regard, the Code of Good Practice: Key Aspects most prevalent forms of harassment encountered in the
of human immunodeciency virus (HIV)/acquired im- workplace are
munodeciency syndrome (AIDS) and Employment, together with the Code of Good Practice on the Employ sexual harassment;
ment of People with Disabilities, provides guidelines on
how HIV/AIDS and disability should be dealt with and
racial harassment;
accommodated in the workplace.
sexual-orientation harassment; and
This is the only legislative provision that mentions human immunodeciency virus (HIV) status as a prohibited
religious harassment.
ground of discrimination. Its inclusion makes section 6 of
the EEA even wider than section 9 of the Constitution.
Of these, sexual harassment is by far the most common.
Section 6 protects only an employee, but it does not
speak only of an employer; it provides that no person
may discriminate. This is broader, and may include, in- 6.1.1 Sexual harassment
ter alia, an independent pension fund or an independent
medical aid scheme, or even a fellow employee.
The Code of Good Practice on Handling of Sexual HaIn this regard, if an employee lodges a complaint of dis- rassment Cases lists three types of conduct which could
crimination against another employee, and the employer constitute sexual harassment:
does not consult in an attempt to eliminate the discrimination, the employer may be held liable.
The dierence between discrimination and dierentiation must always be kept in mind, as not all dierentiations amount to discrimination. There may be a fair differentiation between employees on the basis, for example,
of educational qualications or experience or seniority.
Generally, dierentiation will amount to discrimination
if it is based on an unacceptable reason. Even if the discrimination suered is not listed in section 6(1) of the
EEA, it would amount to discrimination if, objectively,
it is based on attributes and characteristics which have
the potential to impair the fundamental human dignity of
persons as human beings, or to aect them adversely in a
comparably serious manner.

1. physical conduct ranging from touching to sexual assault and rape, and including a strip-search by or in
the presence of the opposite sex;
2. verbal conduct, including innuendoes, suggestions
and hints, sexual advances, comments with sexual
overtones, sex-related jokes or insults, graphic comments about a persons body (made to that person or
in her presence), enquiries about a persons sex life,
and even whistling at a person or a group of persons;
and
3. non-verbal conduct, including gestures, indecent exposure or the display of sexually explicit pictures or
objects.

Once the employee has proven that there has been a differentiation, the EEA and Constitution provide that it is Another way to dene sexual harassment is to consider
presumed to have been unfair discrimination. The em- the eect of the harassment. Three types of harassment
ployer then bears the onus of proving the dierentiation may be so identied:
to be fair.
1. quid pro quo harassment, which occurs when a perDiscrimination may be direct or indirect:
son is forced into surrendering to sexual advances
against her will, for fear of losing a job-related ben It is direct when it is clearly and expressly based on
et;
one or more of the grounds listed in section 6 of the
EEA.
2. sexual favouritism, which occurs where a person in
It is indirect when, although not express, discrimination occurs as a result of it, as when an employer
imposes a gender-neutral criterion, such as height
or weight, as a condition for employment, and this
criterion indirectly has a disproportionate eect on
women.

authority rewards only those who respond to his sexual advances; and
3. hostile-work-environment harassment, which occurs when an abusive working environment is created.

The questions remain: From whose perspective does one

analyse the conduct to see if it amounts to sexual harassment? What test does one apply? Does one look to the
The EEA provides that harassment amounts to a form of way in which the victim experienced the situation (a subunfair discrimination, and as such is prohibited.[21] The jective test), or does one try to be more objective?

6.1

Harassment

6.1

Harassment

17

A subjective test would rely exclusively on the per- policy on sexual harassment should explain the procedure
ceptions of the victim. An obvious criticism of such to be followed by employees who are victims of sexual
a test is that some victims may be over-sensitive, and harassment. The policy should also state the following:
therefore cast the net too wide.
A purely objective test, on the other hand, may be
too narrow. The reasonable man test (which is,
in terms of the common law, the generally applied
objective test) implies reliance on male-dominated
values.

Allegations of sexual harassment will be dealt with

seriously, expeditiously, sensitively and condentially.
Employees will be protected against victimisation
and retaliation for lodging grievances, as well as
from false accusations.[25]

The reasonable victim test seeks to establish a

compromise. It takes into account the experiences
of the victim, the surrounding circumstances, and Finally, the Code recommends that policy statements on
the question of fault on the part of the perpetrator. sexual harassment be communicated eectively to all
employees.[26]
Decided cases are inconsistent on which test should be
used.
Other remedies The employee who resigns due to sexThe Code of Good Practice states that sexual harassment ual harassment may argue that this was a constructive disis unwanted conduct of a sexual nature. This implies missal, which would provide grounds for nding an autoa subjective test. It goes on to say, however, that sexual matically unfair dismissal.
attention will only become sexual harassment
A victim of harassment may institute a civil claim, based
on delict, against the perpetrator; she may also institute
if the behaviour is persistent;
a claim against the employer, based on the common-law
if the recipient has makes it clear that the conduct is principles of vicarious liability.
considered oensive; or
if the perpetrator should know that the behaviour is 6.1.2 Medical testing
regarded as unacceptable.[22]
The EEA prohibits medical testing of an employee, unless
The Code thus adopts a mixture of the subjective and the
objective test.
legislation requires or permits such testing; or
the testing is justiable.[27]
Employer liability The EEA states that the employer
may be held liable if he was made aware of the conduct
but did nothing, or did not do everything that could be Testing may be justiable in the light of
expected of a reasonable employer.[23]
the medical facts;
Furthermore, the Code provides that, as a rst step in expressing concern about and commitment to dealing with
the problem of sexual harassment, employers should issue a policy statement, stipulating the following:
All employees, job applicants and other persons who
have dealings with the business have the right to be
treated with dignity.

the employment conditions;

social policy;
the fair distribution of employee benets; or
the inherent requirements of a job.

Sexual harassment in the workplace will not be perJob applicants are also protected from medical testing.[28]
mitted or condoned.
The EEA prohibits psychological and other similar as Persons who have been or are being subjected to sessments of employees, unless such an assessment
sexual harassment in the workplace have the right to
lodge a grievance about it. Appropriate action will
has been scientically shown to be valid and reliable;
be taken by the employer.[24]
The Code recommends that management be given a positive duty to implement the policy, and to take disciplinary
action against employees who do not comply with it. A

is applied fairly to all employees; and

is not biased against any employee or group of
employees.[29]

18
HIV/AIDS The EEA lists HIV status as one of the
grounds on which an employee may not be discriminated
against.[30] South African Airways, for example, formerly
had a policy of not employing HIV-positive employees
as cabin attendants, partly because it believed that HIVpositive people could not have vaccinations, a requirement for international travel, and were at risk of infection,
which might be transmitted to others.

6 DISCRIMINATION LAW
social policy;
the fair distribution of employee benets;
the inherent requirements of the job; and
the category or categories of jobs or employees concerned.

The court will also want to be informed about the followIn Homan v South African Airways, the court found that ing, which do not go to the question of justiability, but
people living with HIV constitute a minority, to which which are also relevant to arriving at a proper decision:
society has responded with intense prejudice, stigmatization and marginalization. Societys response has forced
the attitude of the employees;
many of them not to reveal their HIV status, for fear of
the nancing of the test;
such prejudice, and has thus deprived them of the help
they would otherwise have received. This stigmatization
the preparations for the test;
the court considered an assault on their dignity.
pre-test counseling;
The EEA is designed to counteract
the nature of the proposed test and procedure; and
the need which employers may feel to test their em post-test counseling.
ployees for HIV/AIDS; and
the concomitant risk of prejudice to employees who There is also a Code of Good Practice on Key Aspects
of HIV/AIDS and Employment, which provides guidedo test positive.[31]
lines to employers and employees on how to deal with
HIV/AIDS in general.
Such testing is prohibited unless it is held to be justiable
by the Labour Court, which may impose various condi- With regard to HIV/AIDS and disability, the Code states
that an employee who has become too ill to work may be
tions on such testing, including
dismissed on grounds of incapacity. A mental or physical
impairment will constitute a disability only if it is sub the provision of counselling;
stantially limiting in respect of entry into, or advancement in, employment.
the maintenance of condentiality;
a limitation on the period of HIV-testing; and

6.1.3 Disputes about discrimination

a limitation on the category of jobs or employees in
respect of which such testing is authorized.
A dispute about unfair discrimination must be referred
to the Commission for Conciliation, Mediation and ArEmployers may make HIV testing available to employees bitration for conciliation within six months of the alleged
as part of a wellness program, provided that it takes discriminatory act or omission.
place condentially and on the basis of informed consent. Disputes of this nature may not be referred to a bargaining
Authorisation from the Labour Court is not required for council.
such testing.
In referring the dispute to the Commission for ConciliaThe EEA does not forbid anonymous testing undertaken tion, Mediation and Arbitration, the referring party must
for epidemiological purposes, or to establish the preva- indicate that it has made a reasonable attempt to resolve
lence of HIV/AIDS among the workforce.[32]
the dispute, depending on the circumstances.
In Joy Mining Machinery v NUMSA, the court held that If conciliation fails, the matter may be referred to the
the following considerations should be taken into account Labour Court, unless the parties consent to the jurisdicin determining whether or not HIV testing is justiable: tion of the Commission for Conciliation, Mediation and
Arbitration for arbitration.
the prohibition on unfair discrimination;
The Labour Court may make any appropriate order that is
the need for such testing;
the purpose of such testing;
the medical facts;
the employment conditions;

just and equitable in the circumstances, including compensation, damages, and orders directing the employer to
take preventative steps.
Again, once the employee proves that there was discrimination, the onus shifts to the employer to prove that the
discrimination was fair.

6.1
6.1.4

Harassment

19

Armative Action

Designated employers The prohibition of unfair discrimination applies to all employers, regardless of their
Alongside the prohibition against unfair discrimination, size, but the armative-action provisions of the EEA aparmative action is the second cornerstone of the EEA. ply only to designated employers.
According to section 2(b) of the EEA, the goal of ar- A designated employer is dened as follows:
mative action is to ensure the equitable representation of
certain groups in all occupational categories and levels in
an employer who employs fty or more employees;
the workplace.
or
Equitable representation is not dened in the EEA, but
an employer who employs fewer than fty employsection 42 states that it may be determined by a considees but whose annual turnover in any given year exeration of
ceeds a certain level,[34] like an employer in agriculture with a total annual turnover of R2,000,000;
the demographic prole of the economically active
municipalities;
population, nationally and regionally;
the pool of suitably qualied people in the designated groups from which the employer may reasonably be expected to promote or appoint employees;
and

organs of state; or
an employer appointed as a designated employer in
terms of a collective agreement.

the economic and nancial factors relevant to the Employers that do not fall within the ambit of this defsector in which the employer operates.
inition may still voluntarily indicate that they intend to
comply with the Act.
Armative action is, by its very nature, a temporary measure. Once the goal of equality in the workplace has been
Employment-equity plans The employment-equity
achieved, the reason for the measure will fall away.
plan is the centrepiece of the procedure for implementing
A potential beneciary of armative action must meet armative action in the workplace.
two requirements:
A designated employer has to consult with the workforce
on
1. He must be suitably qualied.
2. He must be from a designated group.[33]
There are, in this regard, four key denitions in the EEA:
1. Designated groups are black people, women and
people with disabilities.
2. Black people include Africans, Colored people
and Indians.

the conduct of an analysis of its employment policies, practices and procedures, as well as the working environment;[35]
the preparation and implementation of an
employment-equity plan, which will achieve
reasonable progress towards employment equity in
the workforce;[36] and
the submission of reports to the Department of
Labour.[37]

3. People with disabilities are those who have a longterm physical or mental impairment which substan- The analysis described above must also contain a protially limits their prospects of entry into (or advance- le of the employers workforce.[38] Using this proment in) employment.
le, the employer must determine the degree of underrepresentation of people from designated groups in the
4. A suitably qualied person is one who may be
various categories and levels.
qualied for a job as a result of any of his formal
qualications, prior learning, relevant experience, or The employment-equity plan must include
his capacity to acquire, within a reasonable time, the
ability to do the job.
annual objectives;
Employees from one of the designated groups may approach the Labour Court, citing unfair discrimination, to
enforce a lack of armative action. The Labour Court
has held, however, that there is no individual right to afrmative action, which is collective in nature.

the armative-action measures that have to be implemented;

annual timetables for the achievement of goals;
the duration of the plan; and

20

internal procedures to resolve disputes about the in- Court action

terpretation or implementation of the plan.
If there is an under-representation of people from designated groups, the plan must also outline
the numerical goals to be achieved;

JOB SECURITY

The Labour Court has the power

to make a compliance order an order of court;

to direct the Commission for Conciliation, Mediation and Arbitration to conduct an investigation to
assist the court;

the timetable within which these goals have to be

achieved; and

to order compliance with any provision of the EEA;

the strategies to achieve such goals.

to hear appeals against compliance orders imposed

by the Director-General; and

A copy of the plan must be made available to employees. The designated employer must assign one or more senior manager the responsibility and authority and means
to monitor and implement the plan.

to impose nes on employers if they fail to comply

with the EEA.[41]

Designated employers must submit reports to the Depart- State contracts Designated employers who wish to enter into commercial contracts with organs of state must
ment of Labour:
comply with the EEA. They must attach to their oer either
If fewer than 150 employees are employed, the report must be made every two years.
a certicate of compliance issued by the Minister of
If more than 150 employees are employed, the reLabour; or
port must be made every year.[39]
a statement that they do comply.
Designated employers are required to submit a statement
to the Employment Conditions Commission about the re- If these requirements are not met, the organ of state
muneration and benets received by employees in each may reject the oer; it may even constitute grounds
occupational category and level. If this statement reects for the cancellation of a contract that has already been
disproportionate income dierentials, the employer must concluded.[42]
take steps progressively to reduce such dierentials.[40]
Enforcement The EEA provides for four ways in
which compliance with its armative-action provisions
may be ensured:
1. self-regulation;

7 Job security
7.1 Common law

The common law oered the employee virtually no protection against unfair dismissal. Before the Labour Re2. administrative procedures;
lations Act[43] (LRA), as long as the employer gave the
required period of notice, dismissal or probation was ac3. court action; and
ceptable. The common law focused only on the lawful4. state contracts.
ness of the employment contract itself; the reason for the
dismissal was irrelevant. The employer was not required
to give the employee an explanation for the termination;
Self-regulation Employment equity plans must in- nor was there any requirement that the dismissal be fair.
clude dispute-resolution procedures. Employers and emThis had the eect of increasing the bargaining power of
ployees must use these procedures rst.
the employer, who could, essentially, do as he pleased,
because of his more powerful position. The employer
Administrative procedures A labour inspector, with could threaten to dismiss the employee if the latter rereasonable grounds for believing that an employer is not fused to accept less favourable terms and conditions of
complying with the EEA, may try to obtain a written un- employment. The reason for this, it has been contended,
dertaking from the employer that he will comply. If he is that, prior to 1980, this area of law was based on the
refuses, the inspector may issue a compliance order, to incorrect assumption that there existed equal bargaining
which the employer may object within 21 days.
power between employer and employee.

7.3

7.2

Labour Relations Act

International Labour Organisation

South Africa has since subscribed to international labour

standards, in the form of International Labour Organisation (ILO) instruments like the Termination of Employment Convention, 1982, which provides that an employer
must have a fair reason to terminate the employment contract, and that the reason for dismissal must fall into one
of three broad categories:

21
1. Is the worker an employee? (Only employees may
be dismissed, and only employees enjoy the protection of the Labour Relations Act.)
2. Has there been a dismissal? (To answer this question, one must look to section 186(1) of the Labour
Relations Act.)
3. Is the dismissal substantively or procedurally unfair?
(In this regard, the reason for the dismissal will be a
decisive factor.)

1. the misconduct of the employee;

The employee has the onus to establish that there has in
2. the employees incapacity or inability to do the work; fact been a dismissal.[45] If this is discharged, the onus
and
shifts to the employer, who prove the fairness of the
dismissal.[46]
3. the employers operational requirements.
Dismissal describes the termination of the employment
[47]
Misconduct relates to the behaviour of the worker, usu- relationship by the employer, with or without notice.
ally involving some fault on his part, like insubordination, It can also entail
assault, theft, dishonesty, frequent late-coming or intimidation of co-workers.
Capacity relates to the workers ability to do his job. It includes incompetence or incapability for medical reasons
(ill health or injury). It is viewed as a no-fault dismissal.
Operational requirements relate not to the employee, but
rather to the business enterprise of the employer. If an
employee is dismissed on this ground, his is a no-fault dismissal. The most common form that this category takes
is dismissal based on the economic needs of the business,
or on the employers need to restructure the organisation.
The Convention states further that employers must notify employees or their representatives that dismissal is
contemplated, and must provide relevant information to
them. The employer is obliged to consult regarding measures to minimise the number of dismissals, and also to
mitigate the adverse eects of dismissal.

7.3

that the employee reasonably expected the employer

to renew a xed-term contract of employment on the
same or similar terms, but the employer oered to
renew it on less favourable terms, or did not renew
it at all;[48] or
that the employer refused to allow the employee to
resume work after she took maternity leave in terms
of any law or collective agreement, or in terms of
her contract of employment.[49]
An employer who has dismissed a number of employees
for the same or similar reasons, but who now oers to reemploy one or more of them, while refusing to re-employ
another, will have dismissed the latter.[50]
The statutory denition also recognises as constituting
dismissal certain circumstances in which the employee
terminates the employment relationship. This is known
as constructive dismissal.[51]

Labour Relations Act

Where, for example, an employee terminates a contract

of employment, with or without notice, because the emUnfair dismissal is now governed by the Labour Rela- ployer has made continued employment intolerable for
tions Act. Some have argued that the Labour Relations him, he will have been constructively dismissed.[52]
Act undermines the exibility required for the free marAn employee may also be regarded as having been
ket to exist. Others have argued that a restrictive labour
constructively dismissed if he terminates a contract of
law promotes job security, loyalty and incorporation into
employment, with or without notice, because his new
companies.
employer, after a transfer of the business as a going
The Labour Relations Act provides for the right not concern,[53] provided him with conditions or circumto be unfairly dismissed or subjected to unfair labour stances at work which are substantially less favourable
practices.[44]
than those provided by his former employer.[54]
7.3.1

Unfair dismissal

Termination of the employment contract Section

186(1)(a) of the Labour Relations Act refers to the stanOnly employees have the right not to be unfairly dis- dard form of dismissal. Either the employee is given nomissed; non-employees enjoy no such protection. The tice of the termination, or his contract of employment is
Labour Relations Acts approach to unfair dismissal may terminated by way of summary termination. Note, again,
be summarised in the following three questions:
that only employees may be dismissed.

22

The requisite period of notice may be expressly stated in

the contract itself, in terms of a statute such as the Basic
Conditions of Employment Act,[55] or even in terms of a
collective agreement. In terms of the Basic Conditions of
Employment Act,

JOB SECURITY

working for another the employee must also

receive or be entitled to receive remuneration. The remuneration referred to must correspondingly mean remuneration for work done
or tendered to be done.[59]

one weeks notice is required in the rst six months Two subsequent decisions of the Labour Court, in Jack
v Director-General, Department of Environmental Afof employment;
fairs[60] and Wyeth SA v Manqele,[61] have taken a dif two weeks notice if the employee has been em- ferent approach.
ployed for more than six months but less than a year;
The rights and remedies of a job applicant were considand
ered in Jack, where the employer breached the contract by
four weeks notice if he has been employed for more not allowing the party to commence work on the agreed
date. The Labour Court, having examined the question
than a year.
of whether or not there was an employment relationship
Summary termination by the employer may be justied between the parties, decided that, once the parties have
if the employee has committed a serious or fundamental reached agreement on all the essential terms of the contract, it will be binding and enforceable.
breach of a material term of the contract.
In CSIR v Fijen,[56] an employee and his employer had
quarrelled during negotiations, with the employee declaring their relationship nished, and the employer interpreting this as a resignation. The employee subsequently
denied having resigned; what he meant, he argued, was
that the working relationship had become intolerable.
The court held that, in the absence of a clear and unambiguous intention to quit, there could not have been
a proper resignation. The employer, therefore, was mistaken in its interpretation of his words.

In Wyeth, employer and employee had concluded a written contract on 15 March providing that the employee
would commence work on 1 April. Before work commenced, the employer informed the employee that it was
no longer prepared to employ him. The Labour Court
held that the term employee in the Labour Relations
Act encompasses a person who has concluded a contract
to work, and that such person would also enjoy protection
against unfair dismissal. This is in line with a purposive
interpretation of the denition of employee.

The employment relationship is wider than the employment contract. While the contract of employment is the
foundation of the relationship, the relationship may begin before the employee commences working, and may
endure for some time after the contract has been terminated. It ought also to be noted that, although abscondment by the employee constitutes a breach of contract,
this by itself does not necessarily bring the contract to
an end. Only when the employer accepts the employees
When dismissal may be eected is a question of some repudiation of the contract may it be said that there has
practical importance. It relates to the question regarding been a dismissal.
the commencement of employment: Does it commence
when the contract is concluded, or rather when the em- In some cases, an employment relationship is terminated
ployee starts working? The diculty is that there may be by neither the employer nor the employee, but by operation of law. This occurs, for example, when an ema signicant lapse of time between these two events.
ployees residence or work permit expires, and is someThe Labour Court held, in Whitehead v Woolworths,[58] times called automatic dismissal.
that, to qualify as an employee, it was insucient for the
employee to prove that a contract of employment had
been concluded. The conclusion of the contract merely Failure to renew xed-term contract The employee
gives rise to contractual claims; it does not confer the must have a reasonable expectation that the xed-term
[62]
status of an employee or employer on the parties for the contract will be renewed. He bears the onus of proving
purposes of the Labour Relations Act. In terms of the that the expectation of continued or permanent employment is reasonable. The test is objective, inquiring into
denition, Waglay AJ found,
whether or not a reasonable person would anticipate renewal in such circumstances.
a person is only an employee when such
There were indications, in Ouwehand v Hout Bay Fishing,[57] that the employee would be retrenched. Representations were made to him that he should nd other work.
He stopped going to work, therefore, on the assumption
that he had been dismissed. The court, however, held that
he had resigned, because the onus is on the employee to
show that he has been dismissed. The employee in this
case did not discharge that onus.

person actually works for another person. The

employee must therefore have rendered a service to another which services are not that [sic]
of an independent contractor. In addition to

In addition, the employer must have created the impression that such an expectation was justied. The following
are among the ways in which the employer or his representative may create such an impression:

7.3

Labour Relations Act

by past renewals of xed term contracts;

23
Act.[67] Individual or collective agreements may provide
for paid maternity leave.

by making representations to the employee that the

An important concession in the Basic Conditions of Emcontract will be renewed; and
ployment Act is that no employee may be expected to
by assuring the employee that the contract will be work for the rst six weeks after the birth of her baby, but
a midwife or medical practitioner may certify that she is
renewed.
t to work if the employee wishes to do so. An employers
refusal to allow an employee to return to work after she
There must, then, be some form of prior promise or past
has been on maternity leave (paid or unpaid) will now fall
practice. An oer on less favourable terms is also subject
within the ambit of dismissal for the purposes of the
to the reasonable-expectation test.
Labour Relations Act.[68] If an employee does not return
[63]
In SA Rugby v CCMA, the coach of the team indicated to work within the period permitted, this will probably be
to certain players that he had plans for them. When it viewed as abscondment, in which case the normal sanccame to choosing the side, however, certain of those play- tions will apply.
ers were not even sent to training, and therefore were ineligible for the renewal of their contracts. It was held that
the coachs representations to the players were such that Selective re-employment In a sense, in cases of selective re-employment,[69] the employment relationship
they had a reasonable expectation of renewal.
continues even after the employment contract itself has
What about the reasonable expectation of a permanent been terminated. Three elements are essential:
position? In Dierks v Unisa,[64] the employee had been
employed by means of a series of xed-term contracts.
1. There must have been a dismissal.
He argued that he had been unfairly retrenched, and that
he was entitled to a permanent position. It is important
2. The employees concerned must have been dismissed
to draw a distinction between the employees two expecfor the same or similar reasons.
tations:
3. The employer must subsequently have oered to reemploy one or more of the previously dismissed em1. that the xed-term contract would be renewed on the
ployees, while refusing to re-employ one or more of
same or similar terms; and
the others.
2. that he would have permanent employment.
The court held that section 186(1)(b) relates to the rst
expectation only, but the Labour Court later found, in
McInnes v Technikon Natal,[65] that its decision in Dierks
had been incorrect. It took the view that the focus should
be on the nature of the expectation, and whether or not
in the circumstances the expectation was reasonable. In
casu, the employee genuinely believed that she would be
doing the same work as before, the only dierence being
that her appointment would in future be permanent. In
this case, the similar terms referred to included the reasonable expectation of permanent employment on similar
terms.
The uncertainty continued with Auf Der Heyde v University of Cape Town,[66] where the Labour Court accepted
that the approach in Dierks was correct, and that section 186(1)(b) did not include a reasonable expectation
of permanent employment. This case, however, went on
appeal, where the judge found it unnecessary in the circumstances to decide the issue.
Dismissal for reasons relating to pregnancy The
Basic Conditions of Employment Act provides for four
months maternity leave, but does not require that it be
paid. It is possible, however, for an employee to make
a claim in terms of the Unemployment Insurance (UIF)

Constructive dismissal The essential feature of a constructive dismissal[70] is that the employee terminates the
employment contract. His resignation is not entirely voluntary, however, as it is brought about or necessitated by
the actions or omissions of the employer. These actions
must be intolerable.[71] The employee, in resigning, indicates that he would have carried on work indenitely
had not the intolerable situation been created.
In considering whether or not there has in fact been a constructive dismissal, the courts will ask the following questions:
Did the employee intend to bring an end to the employment relationship? Here one must look to the
factual context. If the employee signs a resignation letter, such intention is almost certainly present.
If the employee would have resigned anyway, even
without the intolerable circumstances, he may not
claim that those circumstances were the decisive factor. The time frame, too, is important: If the employee only resigns some months after an isolated
incident, his case is less credible than if he had done
so immediately. He is not automatically discredited,
however; the situation must be viewed as a whole.
Any subsequent conduct, where the accumulative
eect is intolerable, must also be considered.

24

Was the working relationship so objectively intolerable that it was no longer possible for the employee to work there? This must be viewed in light
of the objective reasonable-person test. Intolerable conduct is conduct beyond the norm. To curse
and swear in a particular environment may be completely acceptable, for example, and therefore not
in itself intolerable. Misrepresentations made by
an employer are considered intolerable, as is withholding an employees salary or claiming deductions
without prior written consent; so, too, is the making
of threats, and abuse or violent behaviour, on the
part of the employer. Furthermore, if an employee
is denied the use of a company car, when such is
required for the job, and the contract provides for
one, this will also count as intolerable. On the other
hand, a mere request by the employer to keep costs
low is not intolerable; nor is the absence of immediate employment opportunities, or displeasure the
employers management style.

JOB SECURITY

7.4.1 Section 187 of the LRA

Section 187 of the LRA lists the reasons for which an employee may not be dismissed under any circumstances.
Such dismissals are automatically unfair. Once it is
proved that the employee has been dismissed for any of
these reasons, the employer may not raise any defence
save those provided for in the Act. Victims of automatically unfair dismissals will invariably be reinstated unless
they choose compensation instead.
Section 187(1)(d) is of particular importance. It designates as automatically unfair dismissals in response to
the employees taking action, or indicating an intention
to take any action, against the employer by exercising any
right conferred by the LRA, or by participating in any
proceedings in terms of the LRA. Dismissal for any conduct regarding membership of a trade union, or for exercising the rights conferred by the labour legislation, is
automatically unfair.

The rights referred to are found in section 5 of the

LRA. They include lawful trade-union participation, non Did the employer create the intolerable situation?
compliance with an unlawful order and disclosure of
The intolerable situation must be linked to the coninformation.[72]
duct of the employer.
In CEPPWAWU & another v Glass & Aluminium,[73] hostility from the employer in the workplace led to a con Is the situation likely to endure for a longer period structive dismissal. The hostility was very closely reof time? This depends on the circumstances of the
lated to the employees work as shop steward. The court
case.
held that the employer had made the employees life unbearable due to the fact that he was a shop steward; the
Was termination the only option available to the em- dismissal was therefore automatically unfair. The court
ployee? It must be the only reasonable option, and noted that victims of automatically unfair dismissal will
the employee must rst have tried other possible invariably be reinstated unless they choose compensation
dispute-resolution options: lodging a grievance, for instead.
example, and then giving the employer the chance
to respond.
7.4.2 What constitutes an automatically unfair dismissal?
Transfer of employment contracts This is a relatively new form of statutory dismissal, added in terms of
the 2002 amendment to the LRA. If a business is transferred, the employees must be transferred with it, and employed on the same or similar terms and conditions. Failure on the part of the new employer to do so constitutes
dismissal.

7.4

Automatically unfair dismissal

This area of the law is highly problematic. The LRA

states that certain dismissals are automatically unfair;
there is no argument as to their fairness. The compensation payable to an employee who has been dismissed
for reasons that constitute automatic unfairness is up to
24 months salary, depending on the circumstances. For
a normal, merely unfair dismissal, the compensation is up
to twelve months salary.

This is a factual dispute. Whether the facts give rise to an

automatically unfair dismissal, or merely an unfair dismissal, depends on the circumstances of each case.
7.4.3 Dismissals contrary to Section 5
Section 5 confers on employees a right to freedom of association and the right to belong to workplace forums.
No employee may be dismissed for exercising these freedoms in any way: for example,
by participating in the formation of a union;
by joining a union;
by participating in a unions lawful activities or in the
election of its ocials; or
by standing for election for such a position.

7.4

Automatically unfair dismissal

25

Section 5 further prohibits prejudicing employees for fail- The diculty is that an employer may argue that he has
ing or refusing to do anything that an employer may not the right to dismiss, for operational reasons, those emlawfully require of him.
ployees who do not accept such a demand. It can be facNo dismissal is permitted for the disclosure of informa- tually dicult in such cases to determine what was the
tion which the employee is lawfully entitled or required true reason for the dismissal.
to communicate to other persons, or for exercising any
right or participating in any proceedings in terms of the
LRA. The mere fact that employees are exercising a right
under the LRA does not mean, however, that they are immunised against disciplinary action for misconduct committed outside the scope of their duties.
7.4.4

Strike dismissals

The LRA distinguishes between protected and unprotected strikes. The dismissal of an employee for participating in a protected strike is automatically unfair. Participants in protected strikes, however, may be dismissed for
misconduct (assault, for example, or intimidation) during
the course of the strike.
In cases where it is dicult to distinguish between a dismissal for striking and a dismissal for (by way of example) misconduct, the true and proximate cause of the
dismissal must be identied.

Section 187(1)(c) does not prevent employers from dismissing employees who refuse to accept a demand if the
eect of that dismissal is to save other workers from retrenchment. Nor does this form of automatically unfair
dismissal preclude an employer from dismissing a grossly
insubordinate employee.
In Afrox Limited v SACWU & Others,[74] the company had
a distribution system that resulted in its drivers working
in excess of the overtime permitted by law. It decided to
introduce a system of staggered shifts to overcome the
problem. The employees, refusing to work under the
new system, went on strike. They were subsequently dismissed for operational reasons, as the deliveries from
the branch that had been striking were outsourced. The
employees contended that the real reason why they were
red was because they were on strike. The court held that,
although the strike accelerated the dismissal, the workers
did not comply with the Basic Conditions of Employment
Act when they went on strike; therefore, regardless of the
strike, the dismissal on operational reasons was upheld as
fair.

Section 65(5) provides that participation in a strike which

does not comply with the provisions of the LRA is mis- In Frys Metal v NUMSA,[75] the court held that the disconduct. It may constitute a fair reason for dismissal, missal of employees who refuse to accept a demand does
but there are specic procedures to follow.
not infringe section 187(c) if the employer intends to get
rid of the workers permanently. In this case, the dismissal
was not in an attempt to force compliance; it had gone so
7.4.5 Dismissal to compel employee to accept de- far as to constitute operational reasons.
mand in mutual-interest dispute
In CWIU v Algorax (Pty) Ltd,[76] Algorax had not formally
In terms of section 187(1)(c), employers may not threaten declared a lock-out. The court held, therefore, that the
employees with disciplinary action if they do not com- employer had infringed section 187(1)(c), because it ofply with a demand: a salary decrease, for example. The fered to reinstate the employees after dismissing them.
Labour Court has considered situations in which employ- Had Algorax formally declared the lock-out, it would
ees are threatened with dismissal for refusing to accept seem that it could have kept the employees out for as long
unilateral amendments of their terms and conditions of as it did without having to compensate them for unfair
dismissal.
employment by their employers. In this regard,

the rst issue is whether or not an employer has a

right to dismiss employees who are not prepared to 7.4.6 Insubordination
agree to changes to their terms and conditions of emIn retrenchment cases, it is dicult to decide when an
ployment; and, if so,
employer is entitled to dismiss for insubordination when
the second issue is the nature of the relationship employees refuse to comply with instructions. One must
between that right and the employees right not to distinguish between refusal to work and refusal to do
be dismissed for the purpose of being compelled to work in the specic way required by the employer. A
agree to a demand in respect of a matter of mutual computer technician refusing to x computers is refusing to work, but an employee refusing to use a particular
interest.
computer programme is refusing to do work in a specic
Employers may lock out employees (provided that they way.
follow the proper procedure) as a bargaining strategy. A If the employees are contractually obliged to perform the
lock-out does not constitute dismissal, as the employees work demanded of them, and the employers instructions
are still employed by the employer.
are reasonable, the employees refusal amounts to insub-

26

JOB SECURITY

ordination. It is not unfair to dismiss employees for re- conguration, which may dispose certain employers to
fusing to comply with their employers instructions to per- re employees engaged in certain types of work.
form the work required by their contracts.
If the main reason for the dismissal is the employees
What if the employee refuses to carry out an order not in pregnancy, the employer may not rely on an ancillary reaaccordance with the contract, but with how the employer son like the employees alleged deceit in not disclosing
runs his business? This will depend on the facts: If the her condition. Conversely, a pregnant woman may not
instructions are reasonable, such refusal could amount to rely on her pregnancy as a defence against conduct that
insubordination.
constitutes a disciplinary oence.
In Kroukam v SA Airlink,[77] Kroukam was an airline pilot
who doubled as a shop steward. He was dismissed after
deposing to an adavit for the purposes of an urgent application by his union to have the companys senior manager committed for contempt of court. He was charged
with a number of oences, including gross insubordination. The company claimed that he had divulged the content of an o-the-record discussion in his adavit, and
also that he had refused to submit to a health test required
of pilots. The Labour Court ruled that this was not an
automatically unfair dismissal. On appeal, however, the
court held unanimously that the main or dominant reason
for Kroukams dismissal was his involvement in litigation
against the company. The court held, accordingly, that
such a dismissal was indeed automatically unfair.

Mashava, in Mashava v Cuzen & Woods Attorneys,[78] was

admitted as a candidate attorney at the rm. At the time
of her employment, she was pregnant. She did not disclose this. The rm accordingly dismissed her, but the
court held that this was automatically unfair. The employer could not rely on her deceit regarding her condition
as a reason for dismissal.
Fair dismissal Fair dismissals are composed of two
golden threads: substantive fairness and procedural fairness. Both must be present in order for the dismissal to
be fair and in accordance with the labour legislation. Employees may be dismissed fairly only for misconduct, incapacity and operational reasons.[79] Each of these has its
own procedure, which must be followed.

Any person considering whether or not the reason for dismissal is fair, or whether or not the dismissal was eected
in accordance with a fair procedure, must take into acSection 187(1)(e) is one of a number of statutory provicount any relevant code of good practice issued in terms
sions aimed at protecting women in employment. Prior to
of the Act.
these types of provisions, a woman who left work to have
a baby was largely at the mercy of her employer. Under
the common law, her absence could be treated as a reason
7.5 Discipline and dismissal for misconfor termination of the contract.
7.4.7

Pregnancy dismissals

Now, according to the EEA and the LRA, dismissal is

unlawful if it is for any reason regarding pregnancy or discrimination on the ground of pregnancy. The employee
has no duty to inform her employer that she is pregnant;
the employer has no right to ask and demand an answer.
Accordingly, a woman may not now be dismissed in any
circumstances merely because she is pregnant.

duct

Dismissal is the most severe penalty that an employer may

impose against an employee guilty of misconduct. In determining whether or not dismissal is appropriate in the
circumstances of a case, the employer may have to weigh
up a number of factors to come to a decision.

Section 187(1)(e) also renders impermissible the dis7.5.1 Origin of employers right to discipline
missal of a woman on maternity leave (now up to four
months under the new Basic Conditions of Employment
Generally, the employer has the right to maintain and enAct).
force discipline in the workplace. This right has its origin
Nothing precludes an employer from dismissing a preg- in common law as an implied term in the contract of emnant employee for operational requirements, provided ployment. It is also inextricably linked to the employees
that the court can be persuaded that there was indeed a duty to obey all lawful and reasonable instructions, and is
valid economic or related reason.
linked to the employers right to give instructions. Today
In Whitehead v Woolworths, the court held that an em- the employers right to discipline is regulated to a certain
ployer may have regard to economic considerations, in- degree by the LRA and the Code of Good Practice: Discluding the womans availability to perform her services, missal, annexed to the LRA as Schedule 8 (the Code).
when considering whether to employ a pregnant applicant.
7.5.2 Discipline and common law
Section 187(1)(e) embraces any reason related to her
pregnancy. It therefore includes reasonable absences for Under the common law, the employer may summarily
medical attention and changes in the womans physical dismiss the employee if the latters misconduct is serious,

7.5

Discipline and dismissal for misconduct

or dismiss the employee merely by giving the required notice. Occasionally, the employer may prefer to impose a
less severe penalty, but the employers action in imposing
a penalty may not amount to a breach of contract. Suspension without pay or demotion, or ordering forfeiture
of an agreed bonus or part of the wages, would constitute a breach of contract. The employer may, however,
suspend the employee on full pay and give warnings.

27
Content The Code accepts that the content of a disciplinary code will vary according to the size and nature of
the employers business. Some rules of conduct may be
so well established and well known that it is unnecessary
for the employer to communicate them to the employees. An employee who breaches such a rule cannot argue
that the rule does not appear in the written disciplinary
code. A rule will be so well established that it need not
be communicated if the employees know that a particular
act or omission will not be tolerated if the employer has
always in the past disciplined employees who committed
the particular act or omission.

The eectiveness of these penalties was questionable.

Suspension on full pay, for example, was found to have
little deterrent eect. In practice, the employers superior bargaining power, and his right to dismiss merely by
giving notice, meant that the employer could convince Rules may also be considered to be well established by
the employee to agree to a penalty which would otherwise virtue of common-law contract principles, like a breach
have amounted to a breach of contract.
of the duty to act in good faith. Examples of acts and
omissions that are held to constitute such a breach include
7.5.3

The Code and employers right to discipline

theft;

The Code of Good Practice recognizes the employers

common-law right to discipline employees by requiring,
in item 3(1), that all employers should adopt disciplinary
rules which establish the standard of conduct required of
employees.

assaulting the employer, a superior or co-employees;

If an agreed disciplinary code exists in the workplace,

item 1(2) of the Code stipulates that disciplinary action against employees must comply with the disciplinary
code and procedure.

drunkenness, if it aects the employees work or is

persistent or results in prejudice;

If, however, the disciplinary code was unilaterally introduced by the employer, or if no such code exists, regard
must be had to the Codes provisions. The employers
own code must be measured against the provisions of the
Code; in the absence of an employer code, the Code will
constitute the minimum guidelines for discipline.

7.5.4

insubordination;
failure to obey a reasonable and lawful order;

absence without leave or repeated absence;

misappropriation of company property;
timekeeping or clock-card oences; and
unfair competition with the employer.

Employer disciplinary codes usually contain the disciForm and content of disciplinary codes of con- plinary sanctions for each type of disciplinary infraction
duct
and the procedure to be followed.

A disciplinary code may take the form of a collective

agreement between the employer and a trade union or
unions; it may be a policy unilaterally imposed by the
employer; or it may be incorporated into the terms and
conditions of employment.

In some cases, the industrial court has drawn a distinction between theft and petty pilfering, and has required
that, to justify dismissal, the oence at issue should
disclose a thieving propensity on the part of the employee. In Anglo American Farms Boschendal Restaurant v Komjwayo, however, this distinction was rejected.
The court held that the true test was whether or not the
employees action had the eect of rendering the relationship of employer and employee intolerable. Although
it has been somewhat more lenient in some cases, the
CCMA has generally followed a strict approach in cases
of theft and other forms of dishonesty.

Very often a recognition agreement, in terms of which the

employer recognizes one or more trade unions as the collective bargaining agent of a certain category of employees, will include, as an annexure, an agreed disciplinary
code and procedure. In this way, a disciplinary code and
procedure obtains the status of a collective agreement.

Due to South Africas apartheid past, racist abuse is

viewed in a particularly serious light. In Lebowa Platinum Mines v Hill, an employee was dismissed for calling another employee a bobbejaan (baboon). The court
held the dismissal to be justied because the court found
that the term had a racist connotation.

Form The Code accepts that the form of the employers disciplinary rules will vary according to the size
and nature of the business, but these rules must be clear
and made available to employees so that there is certainty
as to what the employer expects from them and as to what
sort of behavior will not be tolerated.

28
7.5.5

7
Corrective or progressive discipline

In terms of the common law, the employer may either

condone the misconduct or elect to act against the employee. If the misconduct is of a suciently serious nature, the employer may decide to cancel the contract of
employment and dismiss the employee.
Dismissal is only one of a number of penalties that the
employer may impose against the guilty employee. Examples of other penalties are
suspension without pay;
verbal and written warnings;
demotion; and
transfer.
The Code emphasizes the concept of corrective or progressive discipline. Item 3(2) requires that the employer
try to correct employees behavior through a system of
graduated disciplinary measures such as counselling and
warnings. Formal disciplinary procedures do not have to
be invoked every time a rule is broken. Informal advice
and correction is the best way to deal with minor violations of work discipline.
Warnings may be graded according to degrees of severity, as with a verbal warning for a rst oence, then a rst
written warning, then a nal written warning or suspension without pay or demotion, and nally dismissal, which
is reserved for repeated oences or serious misconduct.
Item 3(4) gives a list of examples of serious misconduct
that may result in a disciplinary enquiry and possible dismissal for a rst occurrence. The list includes
gross dishonesty;
wilful damage to company property;

JOB SECURITY

if a rule or standard was contravened, whether or not

the rule was a valid or reasonable rule or standard;
the employee was aware, or could reasonably
be expected to have been aware, of the rule or
standard;
the rule or standard has been consistently applied by the employer; and
dismissal was an appropriate sanction for the
contravention of the rule or standard.
The guidelines in item 7 for a substantively fair dismissal are not hard and fast rules. The employers noncompliance with a particular guideline will not necessarily make the dismissal unfair. The question of whether
or not non-compliance with a particular guideline is permissible depends on the circumstances.
7.5.7 Contravention of rule by employee
There are two issues to be considered under this heading.
In the rst instance, it must be determined whether or not
the rule existed; in the second, if the rule existed, it must
be determined whether or not the employee contravened
it.
Did the rule exist?
The formulation of disciplinary
rules is the responsibility of the employer. The most important source of these rules is a written disciplinary code
or rules of conduct. If such a written code or set of rules
exists, it must be examined to determine whether the rule
which the employee is accused of having contravened is
contained in that code. If the disciplinary code does not
contain the rule under consideration, this may be an important indicator that such a rule does not exist in the particular workplace.

If the particular rule which the employee is accused of

having contravened is not included in the written code,
physical assault on the employer, a fellow employee, this does not necessarily mean that the employees dismissal is unfair.
client or customer; and
wilful endangering of the safety of others;

gross insubordination.

The particular rule may be contained in

the employees written contract of employment;

7.5.6

Substantive fairness of dismissal for misconduct

a policy or personnel manual; or

notices placed on the notice boards in the workplace

As stated before, section 188(1) of the LRA requires that,

if misconduct is the reason for dismissal, it must be with
fair reason. Item 7 of the Code provides some guidelines
as to when misconduct will constitute a fair reason for
dismissal. The following must be considered:

Legislation such as the Occupational Health and Safety

Act may also regulate the conduct of employees. Sections
14 and 15 impose a number of duties on employees, such
as

whether or not the employee contravened a rule or

standard regulating conduct in, or of relevance to,
the work-place; and,

the duty to take reasonable care for the health and

safety of themselves and of other persons who may
be aected by their acts and omissions;

7.5

Discipline and dismissal for misconduct

29

the duty to carry out any lawful order and obey the circumstances of the business. Factors which may deterhealth and safety rules and procedures laid down by mine whether or not a rule is justied include the followthe employer;
ing:
the duty to report that an unsafe or unhealthy situation exists; and
the duty to report that they have been involved in any
incident which may aect their health or which has
caused an injury to them.
Another important source for rules is the common law,
which includes, for example, the duty to act in good faith.
Item 7(a) of the Code provides that one may also consider
whether the employee contravened a rule regulating conduct in, or of relevance to the workplace. The provision
is broad enough to entitle the employer to proceed against
the employee who has contravened a rule after working
hours, or even outside the premises of the employer. The
circumstances that this is possible are limited, however,
to those situations where the misconduct in some way affects or is otherwise relevant to the employers business.

the nature of the employers business (for example,

a brewery prohibiting the use of alcohol by employers); and
the circumstances in which the business operates
(for example, the type of work which an employee
does).
An important indicator of the validity or reasonableness
of a rule is its inclusion in a disciplinary code that is contained in a collective agreement between the employer
and a trade union. Unlike the rule the employer unilaterally enforces, this rule is the product of collective bargaining.

The reasonableness of a rule may be aected by the employers preparedness in the past to enforce it. If it has
not been enforced in the past, it may be an indication that
the employer does not regard the rule as reasonable. The
employers failure to enforce a rule does not make that
Was there a contravention of the rule? Once it has rule permanently invalid, however. It may regain its vabeen established that the rule exists, the next issue to be lidity if the employer clearly an unequivocally informs the
addressed is whether or not the employee has contravened employees that the rule will be enforced in the future.
it. This is an issue which must be determined on the The fundamental issue is that the employer cannot act
facts. If, for example, the employee is charged with unau- against the employee if the latter is unaware that the emthorised possession of company property, this must be ployer now regards a breach of the rule as serious.
proven in the circumstances.
Section 192(2) of the LRA states that it is the employer
who must prove that the dismissal was fair; therefore
the employer must prove that the employee has contravened the rule. Neither the LRA nor the Code stipulates
the standard by which the employer must prove the employees contravention of the rule, but it is submitted that
the employer must prove the contravention on a balance
of probabilities.

Employees knowledge of rule The employee must

have known, or could reasonably be expected to have
been aware, of the rule. The rationale for this is that the
employee should only be penalised for actions or omissions which the employee knew (at the time) were unacceptable. It is implied that the employee must also have
known that a transgression of this rule may lead to dismissal.

The LRA and the Code also do not stipulate on what facts
the employer may rely to prove the contravention. The In- Knowledge of the rule may be achieved through
dustrial Court has given conicting opinions on whether
the employer is restricted to relying on those facts which
its inclusion in a written disciplinary code;
are available at the time of the enquiry, or whether he
may also rely on facts which came to light after the dis meetings with workers;
missal. It is submitted that the Commission for Conciliation, Mediation and Arbitration will probably adopt the
written briefs;
second approach.
notices on notice boars; or
Validity and Reasonableness of the Rule Once it is
clear that the rule existed and the employee actually contravened it, attention must be focused on the rule itself.
The rst aspect which must be determined is whether the
rule is valid or reasonable. This is a factual question.
Generally a rule will be valid or reasonable if it is lawful and can be justied with reference to the needs and

induction programs for new employees.

Certain forms of misconduct may be so well known in the
workplace that notication is unnecessary. This would
be the case with theft assault, intimidation, insolence and
insubordination.

30

Consistent application of rule An employer must, as

far as possible, treat employees in the same way if they
have committed the same or similar oences. The employer must be consistent, in other words, in meting out
discipline.
Two types of inconsistency may be distinguished:
historical inconsistency, where the employer has in
the past not proceeded against an employee for contravening the rule; and

JOB SECURITY

In the case of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC),
however, a security guard at a mine was not abiding by
the search procedures he was obliged to employ for the
workers at the mine. There was video footage available as
proof that he was not adequately searching the workers.
The security guard was dismissed on the suspicion that
he could be fraternising with the workers in order to steal
from the mines. The CCMA having held that this sanction was too harsh, the case was appealed to the Labour
Court and then to Labour Appeal Court. When the case
reached the SCA, the court held that employers have a
discretion to dismiss. If the employer acts reasonably,
his decision must be upheld.

contemporaneous inconsistency, where employees

who breach the same rule contemporaneously, or at
roughly the same time, are not all disciplined, or not
all in the same way, or to the same extent.
On appeal to the Constitutional Court, it was held that the
commissioner who hears the appeal must decide afresh
Inconsistency will not always be unfair. The employer can if the decision was fair or unfair; therefore, it is not apjustify inconsistency through factors such as the employ- propriate to look to the reasonable employer. The SCA
ees dierent circumstances: length of service, for exam- approach, therefore, was found to be wrong. The test is
ple, or disciplinary records and personal circumstances. what the reasonable commissioner would have done in
those circumstances. The court, then, is not bound by
In SA Commercial Catering & Allied Workers Union v the choice made by the reasonable employer. The reaBonus Building, the court held that, if a distinction is sonable employer test is no longer used.
drawn between dierent employees, this distinction must
be properly motivated; otherwise it will give rise to a perGravity of misconduct The more serious the misconception of bias.
duct, the greater the likelihood that dismissal is the apThe court in City of Cape Town v Mashitho & Others
propriate penalty. The seriousness of the misconduct defound that, if an employer intends to discipline employees
pends on a number of considerations:
for misconduct which he has not disciplined them for in
the past, the proper course is to make it known that such
the nature of the oence;
discipline will now be eected and the reasons for this
change.
the circumstances surrounding the commission of
the oence;
7.5.8

Dismissal as Appropriate Sanction

the nature of the work performed by the employee;

the nature and size of the employers workforce;

Whether or not dismissal will be an appropriate sanction
is a factual question. Item 3(5)-(6) of the Code lists fac the position the employer occupies in the markettors to be taken into consideration. The employer should
place and its prole in the market;
consider, in addition to the gravity of the misconduct,
the nature of the work and services rendered by the
such factors as the employees circumstances (including
employee;
length of service, previous disciplinary record and personal circumstances), the nature of the job and the cir the relationship between the employee and the viccumstances of the infringement itself. The employer
tim; and
should apply the penalty of dismissal consistently with the
the impact of the misconduct on the workforce as a
way in which it has been applied to the same and other
whole.
employees in the past, and consistently as between two or
more employees who participate in the misconduct under consideration. All these factors must be considered
Circumstances of infringement A serious oence
and weighed up together to decide whether dismissal is
does not automatically warrant the employees dismissal.
justied or whether a less severe sanction would be more
It is not a knee-jerk response to all serious oences.
appropriate.
There may be circumstances which have a tempering efIt has been submitted that, even if the commissioner does fect, not on the seriousness of the oence as such, but on
not consider dismissal to be the appropriate sanction af- the severity of the penalty: for example,
ter considering all these factors, the penalty of dismissal
in the case of theft, if the object which has been
will stand if the commissioner or judge is satised that a
stolen is of such triing value that dismissal may be
reasonable employer could also have decided to dismiss
too harsh a penalty;
under the circumstances.

7.5

Discipline and dismissal for misconduct

31

in the case of assault, if the employee was provoked procedure, which entails a fair disciplinary enquiry. The
or acted in self-defense; and,
LRA does not regulate a fair disciplinary enquiry. The
employers disciplinary code and procedure usually pre in the case of refusing to obey a superiors orders, if
scribes the procedure to be followed and the manner in
the instructions were unreasonable or illegal.
which the hearing should be conducted. The Code provides a number of guidelines for a fair enquiry in item 4:
The Nature of the Employees Job In the case of a This is not a substitute for a disciplinary procedure but
brewery, the employer will be justied in taking a strict merely a template by which the fairness of a dismissal
disciplinary approach regarding intoxication and the use must be judged.
of alcohol during working hours. A less strict approach Normally, the employer should conduct an investigation
to intoxication may be expected from an employer whose to determine whether there are grounds for dismissal.
employees do not deal directly with the public or who This does not need to be a formal enquiry. The emdo not work with dangerous machinery. This, however, ployer should notify the employee of the allegations, usdoes not mean that such an employer may never dismiss ing a form and language that the employee can reasonably
employees for intoxication; it only means that a greater understand. The employee should be allowed the oppormeasure of progressive discipline will be expected from tunity to state a case in response to the allegations. The
such an employer.
employee should also be entitled to a reasonable amount
of time to prepare the response, and to the assistance of a
Employees circumstances These include the em- trade union representative or fellow employee. After the
ployees length of service, status within the undertaking, enquiry, the employer should communicate the decision
previous disciplinary record and personal circumstances. taken, and preferably furnish the employee with written
notication of that decision.
Years of service generally count in the employees favor.
It must be noted, however, that the employer often puts a Discipline against a trade union representative, or against
great deal of trust in an employee with long service; there- an employee who is an oce-bearer or ocial of a trade
fore, it could count against the employee if he breaches union, should not be instituted without rst informing and
consulting the trade union. If the employee is dismissed,
this trust after many years of service.
the employee should be given the reason for dismissal and
The employer will also expect a higher degree of respon- reminded of any rights to refer the matter to a council
sible behavior from a supervisor or manager than from an with jurisdiction or to the commission, or to any dispute
ordinary worker.
resolution procedures established in terms of a collective
If there is a previous warning on the employees personnel agreement.
le, stating that he will be dismissed if the same oence is In exceptional circumstances, if the employer cannot reacommitted in future, dismissal may be fair if this occurs. sonably be expected to comply with these guidelines, the
A warning does not remain valid indenitely. The em- employer may dispense with pre-dismissal procedures.
ployer and trade union may agree on the period for which
a warning will remain valid, or the employers code may
stipulate this. In the absence of such agreement or stip- Elements of procedural fairness
ulation, the default position is that the warning remains
valid for six months, unless the infraction is particularly
serious, in which case it may remain valid for the duration Investigation The purpose of the investigation is to
determine whether or not there are grounds for dismissal.
of the employees service.
The investigation need not be a formal enquiry.
Other personal circumstances which may be important
include the employees age, marital status and number of
dependents.
Notice of charge and investigation The employer
Other employees dismissed for same oence The
employer must, as far as possible, treat employees the
same if they have breached the same rule or rules which
are similar: There must be consistency when meting out
discipline.
7.5.9

must notify the employee of the allegations against him.

The employer must use a form and language that the employee can reasonably understand. Usually the charge will
be in writing and in the language which is commonly used
in the workplace. Notice of the charge and of the disciplinary enquiry is usually given simultaneously and in the
same document

Procedural fairness of dismissal for misconReasonable time to prepare response The question
duct
of what is a reasonable time is a factual one. The nature
Section 188(1)(b) of the LRA requires that a dismissal and complexity of the charges will certainly be relevant
for misconduct must be eected in accordance with a fair in ascertaining whether the employee has had sucient

32
time. Whether the employee had assistance in preparing
a response will also be relevant.
Employee entitled to state case in response This is
the core of procedural fairness in the context of dismissal
for misconduct. The employee may dispute the facts on
which the charges are based, or may plead guilty to the
charges but argue that dismissal is not the appropriate
sanction.
Employee entitled to assistance The employee is entitled to the assistance of a trade union representative or a
fellow employee during the enquiry. Trade union representative is dened in section 213 of the LRA as a member of a trade union who is elected to represent employees
in a workplace (commonly called a shop steward). Fellow employee includes a colleague, supervisor or even a
director of the company for which the employee is working, provided that the director is also an employee.

JOB SECURITY

2. It would probably not be considered fair to hold

more than one enquiry, save in exceptional circumstances.
The important yardstick is that of fairness.
Communicating decision Item 4(1) of the Code requires that the employer communicate the decision taken,
preferably in writing. Both the verdict and the penalty
must be communicated.
Employee to be informed of reason for dismissal
Item 4(3) of the Code requires that, if the penalty is dismissal, the employee must be given the reason for it, and
must be reminded of any rights to refer the matter to a
bargaining council with jurisdiction, or to the CCMA or
any dispute resolution procedure established in terms of
a collective agreement.

The purpose of assistance is

Appeal Item 4 of the Code does not make a provision

for an appeal to a higher level of management against the
to assist with the presentation of the response to the outcome of a disciplinary enquiry. If the employee is dissatised, he must implement the dispute-settling procecharge; and
dures provided by the LRA. If, however, the disciplinary
to ensure that the procedure which is followed dur- code in the workplace makes provision for such an appeal,
ing the enquiry is fair.
the employee will be entitled to appeal in accordance with
the code.
Item 4(1) does not provide for assistance by a legal prac- Traditionally an appeal entails a re-hearing of the entire
titioner, such as an advocate or attorney, but some disci- matter, including all the evidence presented, and a fresh
plinary codes provide for legal representation under cer- consideration of the appropriate sanction.
tain circumstances.
Decision The decision as to whether or not an employee is guilty of the alleged misconduct, and as to the
sanction, is usually the responsibility of the chairperson
of the disciplinary enquiry. Some disciplinary codes,
however, provide that the chairperson may only may a
recommendation to senior management. The latter must
then take the nal decision, which could dier from the
chairpersons recommendation.
An important question arises: Can senior management
overturn the decision of a chairperson or order a second
enquiry into whether or not the latter is empowered by the
code not merely to make a recommendation but actually
to decide the issue?
The court has indicated that this would be possible, subject to certain limitations, and that whether or not a
second disciplinary enquiry may be opened depends on
whether or not it would be fair to do so in the circumstances.
The court has also stipulated two cautionary remarks:
1. The second enquiry must be permitted in terms of
the employers disciplinary code.

Dispensing with pre-dismissal procedures

Item
4(4) stipulates that the employer may dispense with a disciplinary enquiry in exceptional circumstances if the employer cannot reasonably be expected to comply with this
requirement. Two broad categories of exceptional circumstances are
1. crisis-zone situations (violent strikes in the mining
industry, for example); and
2. where the employee waives his or her right to a hearing (provided that the employee has full knowledge
of his legal right thereto).
Waiver of the right may also be assumed if
the employees conduct is of such a nature that the
employer cannot be expected to hold an enquiry;
the employee refuses to attend the enquiry; or
the employee fails to attend the enquiry because of a
decision on the employees part not to attend. Nonattendance due to illness does not constitute a waiver
of this right.

7.6

7.6

Dismissal for incapacity

Dismissal for incapacity

Incapacity is one of the internationally recognized

grounds for a fair dismissal, provided that a fair reason
exists for the dismissal and that a fair procedure has been
followed.

33
if the employee did not meet a required performance
standard, whether or not
the employee was aware, or could reasonably
be expected to have been aware, of the required performance standard;

the employee was given a fair opportunity to

Section 188 of the LRA refers only to incapacity. It
meet the required performance standard; and
does not distinguish between poor work performance and
dismissal was an appropriate sanction for the
ill health or injury. This distinction is, however, drawn in
contravention of the rule or standard.
the Code of Good Practice: Dismissal (the Code). Different sets of guidelines are provided for each: Item 11
deals with ill health or injury; item 9 deals with poor work
7.6.2 Employees on probation
performance.
While culpability or fault on the part of the employee is Item 8(1) of the Code sets out the basic principles in rethe essence of dismissal for misconduct, a dismissal for spect of probationary employees:
incapacity is a no-fault dismissal. Incapacity means that,
unrelated to any intentional or negligent conduct or per An employer may require a newly hired employee to
formance by the employee, the employee is not able to
serve a period of probation before the appointment
meet the standard of performance required by the emof the employee is conrmed.
ployer. The employee is not capable of doing the work.
The purpose of probation is to give the employer an
This ground of dismissal ties in with the common law
opportunity to evaluate the employees performance
duty of the employee to perform competently and withbefore conrming the appointment.
out negligence. The dierence between incapacity and
misconduct in this regard is that
Probation should not be used for purposes not contemplated by this Code to deprive employees of the
misconduct occurs where the employee breaches
status of permanent employment. The practice of
this duty intentionally or negligently; whereas
dismissing employees who complete their probation
periods, and replacing them with newly hired em incapacity occurs where there is no intention or negployees, is not consistent with the purpose of probaligence on the part of the employee, but rather a sution and constitutes an unfair labour practice.
pervening impossibility of performance.
The period of probation should be determined in advance. It should be of reasonable duration. The
7.6.1 Poor work performance
length of the probationary period should be determined with reference to the nature of the job and
A dismissal for poor work performance implies that there
the time it takes to determine the employees suitmust be an objective standard of performance against
ability for continued employment.
which the employee can be measured, before the em During the probationary period, the employees perployee may be dismissed for failing to meet that standard.
formance should be assessed. An employer should
It is generally accepted that the setting of performance
give an employee reasonable evaluation, instruction,
standards is within the employers prerogative.
training, guidance or counselling in order to allow
There are various ways in which an employer may estabthe employee to render a satisfactory service.
lish performance standards and appraise an employees
ability to do the job to the satisfaction of the employer.
If the employer determines that the employees perAt the outset of the relationship the employer may decide
formance is below standard, the employer should adto put the employee on a period of probation. The Code
vise the employee of any aspects in which the emdistinguishes between employees who are dismissed durployer considers the employee to be failing to meet
ing the probationary period and those who are dismissed
the required performance standards. If the employer
after probation.
believes that the employee is incompetent, the employer should advise the employee of the respects
Item 9 of the Code provides, as guidelines in cases of
in which the employee is not competent. The emdismissal arising from poor work performance, that any
ployer may either extend the probationary period or
person, in determining whether or not a dismissal for poor
dismiss the employee after complying with subitems
work performance is unfair, should consider
(g) or (h), as the case may be.
whether or not the employee failed to meet a performance standard; and,

The period of probation may only be extended for a

reason that relates to the purpose of probation. The

34

JOB SECURITY

period of extension should not be disproportionate in Item 8(2)-(4), which provides that, after probation, an
to the legitimate purpose that the employer seeks to employee should not be dismissed for unsatisfactory perachieve.
formance unless the employer has
An employer may only decide to dismiss an employee or extend the probationary period after the
employer has invited the employee to make representations and has considered any representations so
made. A trade union representative or fellow employee may make the representations on behalf of
the employee.

given the employee appropriate evaluation, instruction, training, guidance or counselling; and,
after a reasonable period of time for improvement,
the employee continues to perform unsatisfactorily.

The procedure leading to dismissal should include an in If the employer decides to dismiss the employee, vestigation to establish the reasons for the unsatisfactory
or to extend the probationary period, the employer performance. The employer should consider other ways,
should advise the employee of his or her rights to short of dismissal, to remedy the matter.
refer the matter to a council having jurisdiction, or In the process, the employee should have the right to be
to the Commission.
heard and to be assisted by a trade union representative
or a fellow employee.
Any person making a decision about the fairness of
a dismissal of an employee for poor work perfor- Incapacity dismissals are made dicult, then, by the fact
mance during, or on expiry of the probationary pe- that there is considerable overlap between substantive and
riod, ought to accept reasons for dismissal that may procedural fairness. They are not always clearly distinbe less compelling than would be the case in dis- guishable.
missals eected after the completion of the probationary period.
7.6.4 Setting standards and assessment
It must be noted that dierent jobs may take dierent An employer is entitled to set the standards that it requires
lengths of time to determine suitability. The requirement the employee to meet. The employer has the prerogative
in terms of the length of probation is that of reasonable- to decide whether or not those standards have been met.
ness.
In A-B v SA Brewaries, an employee engaged as a planIf the probationary employee is not performing ade- ning and administrative manager was charged with poor
quately, the evaluation, instruction, training, guidance or work performance on six occasions and demoted to the
counselling referred to in the Code should focus on mak- position of project controller. The arbitrator held that an
ing it possible for the probationary employee to perform employer is entitled to set the standards that it requires the
to the satisfaction of the employer. If the performance is employee to meet. Generally speaking, the court should
not up to standard, the probationary employee should be not intervene unless the standards so set are grossly ungiven an opportunity to improve to the requisite standard. reasonable.
In sub items (f) to (i) the word should is used, so the
duty on the employer is less onerous than if the employee
had already been conrmed in a permanent position. Item
8(1)(g)-(h) makes it clear that there is a dierence between a dismissal during probation and after probation.

The commissioner held that the employee had been given

a fair opportunity to meet the standards set by the employer and that the demotion was not procedurally unfair.
The employers performance appraisal and review process had identied the problem areas. The employee had
The amended Item 8(1) emphasizes that an employee is been given an opportunity to improve before the demoprotected against an unfair dismissal even while serving tion.
a probation. The justication for these amendments is to The commissioner stressed that, in most cases, senior
make the dismissal of probationary employees easier in managers have a duty to appraise their own performance
order to encourage job creation and to relieve employers and to rectify poor performance themselves.
of the onerous procedures they had to comply with before
this item was amended.
7.6.5 Senior managers
Poor-work-performance dismissals after pro- The status of the employee may play a role in the performance standards that the employee is expected to reach,
bation
and the extent to which the employee will be given an opAfter the probationary period has expired, most employ- portunity to improve his performance. The size of the
ees will have tenure or permanent status. The procedures organisation will also be a factor to consider when decidthat an employer must follow to justify a dismissal for ing the degree of the employers responsibility towards
poor work performance after probation are to be found employees whose performance is sub-standard.
7.6.3

7.6

Dismissal for incapacity

Senior managers may indeed have a duty to assess their

own performance standards. The courts have long accepted that senior employees are not always entitled to an
opportunity to improve. They have been held to have the
ability and duty to monitor their own work performance.

35
Commission for Conciliation, Mediation and Arbitration
commissioners now generally take the view that incompatibility constitutes incapacity and not operational requirements, but the debate continues.

There must still be a fair reason and fair procedure for

such a dismissal. The employer is obliged to assist an em7.6.6 Failure to meet the standards required by reg- ployee who is causing disruptions in workplace relationship before dismissing him. If the employee is a genuine
ulatory body
mist, appropriate warnings and counselling would be
A dismissal for incapacity may be justied if the em- required.
ployee does not have the requisite qualications or has It may happen that a call is made for the dismissal of an
not been accredited by a professional or statutory body. employee by a third party or co-workers. If this happens,
the demand made must be good and sucient, and must
be backed by a real and serious threat: for example, that
7.6.7 Assessment and evaluation by employer
the employees making the demand will go on strike if
the employee in question is not dismissed. The employer
The courts have stressed the need for a proper evaluation must investigate alternatives and consult the employee in
and assessment of an employee before any action is taken. question.
There must be careful assessment and consultation, and
The requirement that there must be no possible alternaan opportunity to improve.
tive is particularly true when racial or ethnic tension is the
The Commission for Conciliation, Mediation and Arbi- cause of the incompatibility. The test in such cases is that
tration has accepted that less strict standards should be of necessity.
applied to small businesses tasked with evaluating an employee for poor work performance.
7.6.11 Ill health or injury
7.6.8

Consultation process

It is emphasised that it is through fair process that fair

decisions are generally reached. If the dismissal was procedurally unfair, the courts have often been reluctant to
reinstate the employee, choosing rather to award the employee compensation.
7.6.9

Dismissal as last resort

No employee may be dismissed for poor work performance without rst being made aware of the standards
required and then being given an opportunity to improve.
The employer is expected to make a reasonable accommodation for an employee and oer the employee alternative employment in some circumstances.
7.6.10

Incompatibility

The second type of incapacity dealt with in the Code is ill

health or injury. It is addressed in Item 10 and Item 11.
The assessments referred to in Item 11 must be done in
order to determine whether a dismissal would be appropriate in the circumstances. Item 11 of the Code provides
that any person determining whether a dismissal arising
from ill health or injury is unfair should consider
whether or not the employee is capable of performing the work; and,
if the employee is incapable
the extent to which the employee is able to perform the work;
the extent to which the employees work circumstances might be adapted to accommodate
disability, or, where this is not possible, the extent to which the employees duties might be
adapted; and

There was great debate regarding whether or not an

employees incompatibility (his inability to work har the availability of any suitable alternative
moniously with other employees or to t in with the
work.
corporate culture of the undertaking or organisation)
constituted incapacity or a ground for an operationalOnce again the dismissal must be both substantively and
requirements dismissal.
procedurally fair.
Considering the way the LRA is now structured, this distinction has become vital. Dierent pre-dismissal procedures must be followed by the employer; disputes about Substantive and procedural fairness Various aspects
an allegedly unfair dismissal would follow dierent pro- of substantive and procedural fairness are illustrated in
Item 10.
cedures.

36
Incapacity on the grounds of ill health or injury may be
temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer
should investigate the extent of the incapacity or injury.
If the employee is likely to be absent for a time that
is unreasonably long in the circumstances, the employer
should investigate all the possible alternatives short of dismissal.

JOB SECURITY

jury. It appears that the approach of the court will vary

according to the degree and nature of the absenteeism.
Frequent and lengthy absences due to ill health may justify termination at a point where the employer can no
longer be expected to tolerate such absences.

Disability In many cases, the terms incapacity and

disability are used interchangeably. Incapacity may be
When alternatives are considered, relevant factors might
due to an accident causing a loss of limb or the slow onset
include
of an illness like cancer or HIV/AIDS, or a person may
have been born with a physical or mental impairment that
the nature of the job;
others perceive as a disability.
the period of absence;
The real issue in equity or anti-discrimination legislation
is to protect the rights of disabled people, particularly
the seriousness of the illness or injury; and
in the area of employment, as employers may perceive
the possibility of securing a temporary replacement a disabled person to be unsuitable for the workplace.
for the ill or injured employee.
Although the Constitution and LRA both have general
equity provisions for people with disabilities, there is no
In cases of permanent incapacity, the employer should
statutory denition in these Acts. The EEA, however, deascertain the possibility of securing alternative employnes people with disabilities as people who have a longment or adapting the duties or work circumstances of the
term or recurring physical or mental impairment which
employee to accommodate the employees disability.
substantially limits their prospects of entry into, or adIn the process of the investigation referred to above, the vancement in, employment.
employee should be allowed the opportunity to state a
The Americans with Disabilities Act (arguably the most
case in response, and to be assisted by a trade union repimportant international legislation in this eld) denes a
resentative or fellow employee.
disabled person as one who has a physical or mental imThe degree of incapacity is relevant to the fairness of any pairment that substantially limits a major life activity, a
dismissal. The cause of the incapacity may also be rele- person who has a past record of such an impairment, or
vant. In the case of certain kinds of incapacity, like alco- a person who is regarded by other people as having such
holism or drug abuse, counselling and rehabilitation may an impairment.
be appropriate steps for the employer to consider.
Reasonable accommodation means any modication or
Particular consideration should be given to employees adjustment to a job or to the working environment that
who are injured at work or who are incapacitated by will enable a person from a designated group to have acwork-related illness. The courts have indicated that the cess to or participate or advance in employment.
duty on the employer to accommodate the incapacity of
A dismissal based on disability may thus be automatically
the employee is more onerous in these circumstances.
unfair, giving the employer no defense and the judge no
Item 10(1) highlights the nature, degree and extent of discretionexcept that the dismissal may be fair if the
the incapacity, and the steps the employer should take to reason is based on an inherent requirement of the job.
accommodate the employee. Whether the incapacity is
The employer will also bear the onus of proving that the
temporary or permanent is also an important consideradismissal for disability was based on the inherent requiretion.
ments of the job and that the dismissal is both substanItem 10(2) sets out the guidelines specically for proce- tively and procedurally fair.
dural fairness. There has been debate as to whether this
process entails a formal hearing. As long as the employee
is given a fair opportunity to indicate why he should not 7.7 Dismissal for operational requirebe dismissed, however, this feature has been complied
ments
with.
The degree of incapacity also plays a role (see Item 7.7.1 Context
10(3)).
An employer may nd itself facing nancial ruin (due to
The employers duty to accommodate is emphasized, with unsound strategy, large clients or contracts having been
particular reference to employees incapacitated due to a lost, or factors in the economy at large). Under pressure,
work-related injury or illness (see Item 10(4)).
the employer may be forced into considering reducing its
A related issue if that of habitual absenteeism, where an wage bill by restructuring the organisation, which may
employee is often absent from work due to illness or in- mean dismissing some employees. In this scenario, the

7.7

Dismissal for operational requirements

37

word retrenchment is often used.

tomatoes attracted a higher commission than the sale of

Section 188 of the LRA recognizes that an employer also the vegetables sold by the other employees. This caused
has operational requirements and needs, and that, in cer- dissatisfaction among the other workers, which the emtain cases, these may also be a fair and valid reason for ployer tried to address by proposing a new remuneration
system. The salesman was given three alternatives:
dismissal.
According to section 213 of the LRA, operational requirements are requirements based on the economic,
technological, structural or similar needs of an employer.

1. He could accept the new system.

2. He could present an alternative system.

There are four categories of operational requirements.

3. He could resign.
From these categories it is clear that the reason for the
dismissal does not relate to the employee; it is due to the
needs of the employer, and therefore reason for the dis- He proposed that the old system be retained. When this
missal is the employers.
proposal was rejected by the employer, he resigned.
An employers economic needs, for example, include
those needs and requirements relating to the economic
well-being of the enterprise. One of the most common
economic reasons for dismissal is nancial diculties
(due to, for example, a downturn in the economy or a
decrease in the demand for certain products).

The court held that the employer had not acted unfairly, as
a successful business requires contented employees. Unhappiness can lead to several problems, such as labour unrest and a drop in productivity. A commercial rationale
for the changes was thus established by the employer.

Dismissal to compel an employee to accept changes to

terms and conditions of employment is branded as automatically unfair by section 187(1)(c) of the LRA. The
primary motive for dismissal must be a commercial rationale or operational reason in order for the dismissal to
Structural needs as a reason for dismissal describes posts be fair.
becoming redundant following a restructuring of the en- The fundamental dierence between an operational reterprise. This often follows a merger or amalgamation.
quirement dismissal and an automatically unfair dismissal
is the employers reason for the dismissal. If an employer
dismisses employees because the terms and conditions of
7.7.2 Employers similar needs
employment must be altered for the business to continue
being viable, the employees may be fairly dismissed, as
This is a very broad category and must be determined they no longer serve the employers operational requirewith reference to the circumstances of the case. There is ments.
no clear and absolute dividing line between an employers
economic needs and similar needs, as there are often In Frys Metals v National Union of Metalworkers, the
court discussed the dierence between an operationalconsiderable overlaps.
requirement dismissal and an automatically unfair dismissal:
Technological needs refers to the introduction of new
technology, such as more advanced machinery, mechanization or computerization, leading to the redundancy
of employees.

7.7.3

Changes to employees terms and conditions

of employment

A business may have to be restructured or amalgamated

with another enterprise, or its mode of operation may
have to be altered in order to ensure its survival or to make
it more competitive.
These changes may lead to an employees becoming redundant, but changes of this nature may also lead to the
employees being oered a new position, with changes to
the terms and conditions of employment.

In the case of a dismissal due to operational requirements, the purpose is to get rid of employees who do
not meet the business requirements of the employer,
so that new employees who will meet the business
requirements can be employed.
In the case of an automatically unfair dismissal, the
employer wants his existing employees to agree to
a change of their terms and conditions of employment, and has the attitude that, if the employees do
not agree to the changes, he will dismiss them.

If the employee unreasonably refuses to accept the

changes to the terms and conditions of employment, the A change in the terms and conditions of employment
employee may be dismissed for operational requirements. need not always be the result of changes regarding the
In WL Ochse Webb & Pretorius v Vermeulen, the em- business. The circumstances or attitude of the employee
ployee was a tomato salesman for WL Ochse (the em- could change. This could have such serious economic
ployer) and was paid a basic salary and commission. He repercussions for the employer that the latter deems it viearned more than the other employees, as the sale of tal to change the employees conditions of employment.

38

The nature of a business may be such that special demands are made on the employees. It may be essential
for the economic success of the business, for example,
that the employees are able and willing to work overtime.
The employees inability or refusal to do so could jeopardise the well-being of the business; therefore a dismissal
would be fair.

JOB SECURITY

In Food & Allied Workers Union v Amalgamated Beverage

Industries, the Industrial Court accepted that the dismissal
of a number of employees on suspicion of assault had an
operational rationale to it.
7.7.6 Substantive issues

Real reasons and increases in prots Before the introduction of section 189A of the LRA in 2002, there was
7.7.4 Incompatibility and related reasons
no statutory denition of substantive fairness in the case
The courts have accepted than an employee whose ac- of an operational-requirements dismissal. The question
tions negatively aect the operation of a business may is a factual one; the employer must prove:
be dismissed. This may occur where certain actions of
1. that the proered reason is based on the operational
the employee create disharmony among his co-workers,
requirements of the business, so that the employer
as when, for example, he antagonises co-workers by conwill have to prove that the reason for dismissal falls
tinually making racist or sexist remarks.
within the statutory denition of operational reIn Erasmus v BB Bread, employees called for the disquirements;" and
missal of a manager because of his problematic attitude
towards them, and his having made derogatory remarks,
2. that the operational reason actually existed, and was
particularly aimed at black employees. The Industrial
the real reason for the dismissal. The reason may
Court (in terms of the old LRA) held that his dismissal
not be a mere cover-up for another reason.
was for a valid and fair reason, as the employer is entitled
to insist on reasonably harmonious interpersonal relation- A dismissal for operational reasons need not be restricted
ships between employees. If sound relationships appear to the cutting of costs and expenditure. Prot, or an into be impossible, the employer may be entitled to remove crease in prot, or gaining some advantage such as a more
the employee from the scene.
ecient enterprise, may also be acceptable reasons for
In East Rand Proprietary Mines v UPUSA, the issue
was the fairness of the dismissal of a number of Zuluspeaking workers after violent clashes between them and
workers belonging to other ethnic groups. Although the
court found that the dismissal had been unfair in the circumstances, it did acknowledge that a dismissal which
had its roots in an arbitrary ground, such as ethnic origin,
could be fair if the employer could prove that dismissal
was the only option left to ensure the safety of the targeted
employees and the continued well-being of the business.
The court held that an employer may dismiss employees
because it cannot guarantee their safety in light of the ethnic hostilities, but the employer must be able to show that
it truly had no other alternative.
7.7.5

Breakdown in the trust relationship

The relationship between the employer and employee is

one of trust. It entails the condence that the employee
is adhering to the common-law duty to act in good faith
towards and in the best interests of the business.
If the facts show that this duty is breached, the employee
is guilty of misconduct and, if suciently serious, may be
dismissed.
If the employer is unable to prove such a breach on a balance of probabilities, the employee may not be dismissed
for misconduct, but may be dismissed for operational reasons, as such mistrust is counter productive to the operation of the business.

dismissal.
If the employer can show that a good prot is to be made
in accordance with a sound economic rationale, and it follows a fair process to retrench an employee, the dismissal
is fair.
Large-scale Dismissals Section 189A of the LRA
distinguishes between the size of employers and also the
size of dismissals when regulating substantive and procedural fairness of dismissal.
Section 189A(1) distinguishes between a small employer
(less than fty employees) and a big employer (more than
fty employees).
In terms of s189A(1)(a) a large-scale dismissal would entail the employers dismissing
ten employees, if the employer employs between
fty and 200 employees;
twenty employees, if the employer employs between
200 and 300 employees;
thirty employees, if the employer employs between
300-400 employees;
forty employees, if the employer employs between
400-500 employees; and
fty employees, if the employer employs more than
500.

7.7

Dismissal for operational requirements

In terms of s189A(1)(b), a dismissal by a big employer of

fewer than the prescribed minimum listed above still constitutes a large-scale dismissal if the number of employees to be dismissed, together with the number of employees that have been dismissed for operational reasons in the
twelve months previously, exceeds the number specied
above.
This is a so-called rolling twelve-month period and
must always be calculated backwards, starting from the
date on which the employer gives notice in terms of section 189(3) of the latest proposed dismissal for operational reasons.

39
give defensible reasons for dismissing such alternatives,
and show that dismissal was a last resort.
Selection criteria were fair and objective One of
the requirements for a procedurally fair operational requirements dismissal is that the parties must attempt to
reach consensus about the method to be used to select
employees for dismissal. Where the parties are unable to
agree, the criteria used must be fair and objective. This
procedural requirement is also, therefore, a requirement
for substantive fairness.

The purpose of the twelve-month rolling period is to en- 7.7.7 Courts changing views
sure that employers do not manipulate the number of employees to be dismissed so that the dismissal always falls In the past, the courts took the view that the function of
outside the ambit of section 189A.
the court is not to second-guess the employers decision.
Section 189A(19) of the LRA provides that, in any dis- It is not up to the court to ask whether it was the best depute referred to the Labour Court concerning the dis- cision under those circumstances; it needed only to conmissal of the number of employees in terms of subsection sider whether it was a rational, commercial or operational
(1), the court must nd that the employee was dismissed decision.
for a fair reason if
Now the courts take a closer view of the employers business decisions.
the dismissal was to give eect to requirements
based on the employers economic, technological, In BMD Knitting Mills v SA Clothing & Textile Workers
Union, the court departed from its deferential approach
structural or similar needs;
and focused on the fairness of the reason to both parties:
the dismissal was operationally justiable on rational
grounds;
The starting point is whether there is a
commercial rationale for the decision. But
there was a proper consideration of alternatives; and
rather than take such justication at face value,
a court is entitled to examine whether the
selection criteria were fair and objective.
particular decision has been taken in a manner which is also fair to the aected party,
Economic, technological, structural or similar
namely the employees to be retrenched. To
needs This requirement entails that the reason for disthis extent the court is entitled to enquire as
missal must be for operational requirements, as dened
whether a reasonable basis exists on which the
in section 213. It must also be the real reason for the
decision, including the proposed manner, to
dismissal.
dismiss for operational requirements is predicated. Viewed accordingly, the test becomes
less deferential and the court is entitled to exOperationally justiable on rational grounds
amine the content of the reasons given by the
Rational grounds are grounds that are founded upon
employer, albeit that the enquiry is not directed
reason or logic. The rationality test is an objective
to whether the reason oered is the one which
one, measuring the acceptability of the reasons for diswould have been chosen by the court. Fairness,
missal against that which would generally be considered
not correctness is the mandated test.
acceptable. It is not a subjective test focussed only on
what the particular employer considered to be justiable
In Chemical Workers Industrial Union v Algorax, the
under the circumstances.
court considered itself to be entitled to scrutinize the employers business reasoning and decision-making in conProper consideration of alternatives One of the siderable detail. The reasoning given is that the court
requirements for a procedurally fair dismissal is consul- should not hesitate to deal with an issue which requires
tations on measures to avoid dismissals. This inclusion no special expertise, skills or knowledge that it does not
makes this procedural requirement also a requirement have, but simply requires common sense or logic.
for substantive fairness, and goes further by requiring The most important implication of this approach is that
proper consideration.
the employer will need to convince the court not only that
Proper consideration entails more than merely consid- it has considered alternatives, but that it has chosen the
ering alternatives. The employer must apply its mind and option that makes the best business sense.

40
7.7.8

JOB SECURITY

Procedural aspects

to reach consensus. This means that the parties must embark on a joint problem-solving exercise, striving for conThere is no clear dividing line between substantive and sensus.
procedural fairness in dismissals for operational reasons;
For the process to be meaningful, the employer must conthe issues overlap considerably.
sult in good faith and not simply go through the motions.
This means the employer cannot have made up his mind
Consultation process The consultation process is at to dismiss prior to consultation, and must be prepared
the heart of procedural fairness in the case of dismissal to keep an open mind with regard to the representations
made.
for operational requirements.
Section 189(1) of the LRA provides that, when an em- The employees must engage properly, make represenployer contemplates dismissing one or more employees tations and ensure that their representations are well
for reasons based on the employers operational require- founded and substantiated, and not merely prolong consultations.
ments, the employer must consult
Should the parties fail to reach consensus, the nal deci any person whom the employer is required to consult sion remains that of the employer.
in terms of a collective agreement;
In NEHAWU v University of Pretoria, the Labour Appeal
court held that, after restructuring had been exhaustively
if there is no such collective agreement,
discussed by a steering committee, on which all stake a workplace forum, if such exists; and
holders were represented, the university was not required
any registered trade union whose members are to consult again on all those issues after formally giving
notice in terms of section 189 of the LRA.
likely to be aected;
if there is no workplace forum, any registered trade
union whose members are likely to be aected; or
Consultation topics Section 189(2) of the LRA provides that the employer and the other consulting parties
if there is no such trade union, the employees likely must engage in a meaningful joint process, attempting to
to be aected by the proposed dismissals or their reach consensus on
representatives nominated for that purpose.
In United National Breweries v Khanyeza, the court held
that, where a union is recognized as a consulting party in
a collective agreement, it is entitled to consult on behalf
of all employees, even those falling outside the bargaining
unit for which the union is recognised.
Note that consultation must take place when the employer
contemplates dismissalwhen the possibility of dismissal is foreseen, but the nal decision to dismiss has
not been reached. At most, therefore, the employer must
have an intention to retrench.

appropriate measures
to avoid the dismissals;
to minimize the number of dismissals;
to change the timing of the dismissals; and
to mitigate the adverse eects of the dismissals;
the method for selecting the employees to be dismissed; and

the severance pay for dismissed employees.

Item 3 of the Code further entrenches the idea that consultation must take place when dismissal is contemplated.
Measures to avoid dismissals There must be proper
This ensures that the employees are aorded the oppor- consideration of alternatives. The employer must apply its
tunity to inuence the employer in its nal decision to mind to the proposals and, if applicable, give defendable
reasons for dismissing these alternatives and coming to
dismiss or not to dismiss.
the conclusion that dismissal was the only solution.
Section 189 does not prescribe the period over which consultation should extend, but Item 5 of the Code states that Possible alternatives include the following:
the circumstances of each case are relevant to the deter granting paid or unpaid leave;
mination of a reasonable period.
Item 6 further states that the more urgent the need of the
employer to respond to the factors giving rise to contemplated dismissals, the shorter the consultation process will
be.

reducing or eliminating overtime or work on Sundays;

Consultation entails that the parties must engage in a

meaningful joint consensus-seeking process and attempt

training or retraining employees to enable them to

take up other positions in the organisation.

transferring employees to other departments; and

7.7

Dismissal for operational requirements

41

The parties may consider spreading the dismissals out According to section 189(3) of the LRA, all relevant inover a period of time to allow a natural attrition of num- formation must be disclosed. This may include, inter
bers through retirements or resignations.
alia,
Measures to minimize the number of dismissals
Once dismissals have been agreed as the only solution,
the number of dismissals must be kept to a minimum.
This may mean
transferring employees to other sections or departments;
asking for volunteers by means of oering a voluntary severance package;

the reasons for the proposed dismissals;

alternatives considered and the reasons for rejection
thereof;
the number of employees likely to be aected;
the proposed method for selecting which employees
to dismiss;
the time when the dismissals are likely to take eect;

allowing natural attrition of numbers; or

severance pay proposed;

training or retraining.

any assistance the employer proposes to oer;

Measures to change the timing of the dismissals

While the employer may prefer the dismissals to be immediate, the union may prefer them to be spread over a
period of time, or that they take place at a later stage.
Measures to mitigate the adverse eects of the dismissals The employer may, for example, assist the employee in nding alternative work by giving the employee
time without loss of pay to search for alternative work.

the possibility of the future re-employment of the

employees who are dismissed;
the number of employees employed by the employer; and
the number of employees the employer has dismissed for operational requirements in the preceding twelve months.

Relevance is a question of fact and entails all information

The employer may also make an oce available in which that will allow eective consultation.
to complete job applications and arrange interviews.
The onus is on the employer to prove that any informaThe employer may provide a reference for the employee. tion that it has refused to disclose is not relevant for the
In Sikhosana v Sasol Synthetic Fuels, the court noted that purposes for which it is sought.
the LRA contemplates a hierarchy of consulting parties, Privileged information, information that may cause harm
each if applicable excluding its successors. The courts ap- if disclosed and private personal information relating to
ply section 189(1) strictly. It was held that, although ap- an employee is not required to be disclosed, even if it is
propriate measures to mitigate the adverse eects of the relevant.
dismissals should be taken, employers are not required
actively to seek alternative work for retrenched employees.
Representations and consideration of representaThe employer may also undertake to give priority to the tions Section 189(5) of the LRA provides that the employer must allow the other party an opportunity to make
dismissed employee should a vacancy arise.
representations on any matter on which the parties are
consulting. Representations on issues regarding the reaCriteria for dismissal and severance pay Consensus sons for dismissal, alternatives to dismissal, measures to
must also be reached on the criteria used to select which minimise the number of dismissals, the timetable for disemployees will be dismissed and the amount of severance missal, assistance oered, severance pay, etc., are therefore allowed.
pay the employee is entitled to.
Representations about the disclosure of information and
about any other matter relating to the proposed dismissals are also allowed: for example, the socioeconomic impact that a mass dismissal would have on the
local community.

Written Disclosure of Information The employer

must disclose all relevant information in writing. Verbal assurances, explanations and information by the employer will not suce; the other party may demand that
the employer put everything down in writing or provide The employer must engage with those representations and
documentation such as nancial reports.
consider and respond to them.

42

JOB SECURITY

Selection criteria Employees must be selected for dis- Bumping If retrenchment is to aect only one departmissal in terms of selection criteria that have either been ment in an enterprise, the practice is sometimes to reagreed upon or that are fair and objective.
trench on the LIDO basis and to drain o remaining emThis means that the criterion should not be arbitrary; it ployees in that department into other departments.
must be relevant, in that it relates to the conduct of the
employee, such as length of service, ability, capacity and Retirement Employees who have reached the minithe needs of the business.
mum retirement age may be identied as the rst population for retrenchment. After these employees have been
The following criteria are commonly used:
retrenched, LIFO is used. This criterion is often applied
in jobs which require a level of tness and strength.
seniority;
conduct;

Volunteers Parties may agree that the employer will

eciency, ability, skills, capacity, experience, atti- rst ask for volunteers before embarking on any selection
process.
tude to work and productivity;
attendance;
bumping;
retirement; and
volunteers.
Seniority This is the last in, rst out or LIFO principle. Long-serving employees are retained at the expense
of those with shorter service in similar or less-skilled categories of work. This method minimises the use of subjective judgment to decide who shall be retrenched. This
is why it is favoured by most unions.

Severance Pay Section 41 of the Commission for Conciliation, Mediation and Arbitration creates a statutory
duty for the employer to pay severance to workers who
are dismissed for operational reasons.
Severance pay is an amount for each completed year of
continuous service.
Section 84 of the Commission for Conciliation, Mediation and Arbitration suggests that, for the purposes of determining the length of the employees employment, previous employment with the employer must be taken into
account if the break between the periods is less than one
year.

The duty to pay severance is not absolute. If an employee

The Code also acknowledges LIFO as a fair and objective
unreasonably refuses an alternative position, he loses the
criterion, but provides that it should not operate so as to
right to severance pay.
undermine an agreed armative-action programme.
The question of whether or not the refusal is reasonable
Exceptions may also include the retention of employees
is one of fact. Item 11 of the Code states that reasonbased on criteria (like special skills) which are fundamenableness is determined by a consideration of the reasontal to the successful operation of the business.
ableness of the oer of alternative employment and the
reasonableness of the employees refusal. Objective facts
Conduct This criterion will be fair and objective if it is such as remuneration, status and job security are relevant.
based on objectively determined conduct, like attendance If the oered position amounts to a demotion, the refusal
records and previous warnings, and if the employee was will not be unreasonable.
at all times made aware that the employer found such conduct unacceptable.
7.7.9 Large-scale dismissal by big employer
Eciency, ability, skills, capacity, experience, attitude to work and productivity These criteria are generally favored by employers. They are regarded as objective, provided they do not depend solely upon the opinion
of the person making the selection, but can be objectively
tested.

Section 189A introduces additional requirements for a

procedurally fair dismissal in the case of a large-scale dismissal.

Firstly section 189A aords either party the right to ask

the Commission for Conciliation, Mediation and Arbitration to appoint a facilitator to assist the parties during the
Furthermore, they may only be used if the employee consultations; secondly, section 189A introduces a moraknew that the employer considered them important.
torium of sixty days, during which the employer may not
dismiss.
Attendance This criterion will only be allowed if it
can be proved that the employee always knew that the Facilitation option Only the Commission for Conciliation, Mediation and Arbitration may be approached to
employer regarded absences from work seriously.

7.8

Closures, mergers and sales of businesses

appoint a facilitator.

43
7.7.11 Dismissal of strikers

The employer must make this request when it gives notice

In terms of section 67(5), employees engaged in a proin terms of section 189(3) to the employee party that it is
tected strike may be dismissed if
contemplating a large-scale dismissal.
The employee party (the union, for example) representing
the majority of the employees may also ask for a facilitator. The employee party must notify the Commission
for Conciliation, Mediation and Arbitration within fteen
days of the employers notice of contemplated dismissal.

they are guilty of misconduct during the strike; or

operational requirements require such.

7.8 Closures, mergers and sales of busi-

If neither party asks for a facilitator within the above

nesses
timeframes, they may agree to ask for one to be appointed
during the consultation process.
A unique problem in labour law is the fate of employees
If a facilitator is appointed, the facilitation must be con- when a business is sold or closes. This problem has a close
ducted in terms of the regulations made by the Minister practical connection to dismissals for operational reasons,
as many businesses are sold because they are unhealthy
of Labour for the conduct of such facilitation.
and require restructuring.
These regulations relate to the time period and variation
of such time periods for facilitation, the powers and duties of facilitators, the circumstances in which the Com- 7.8.1 Common law
mission for Conciliation, Mediation and Arbitration may
charge a fee for appointing the facilitator, and the amount In terms of the common law, the position of the employof the fee.
ees was that no employee could be forced to continue
An employer may not dismiss before sixty days have his contract of employment with the new employer; conelapsed from the date on which notice in terms of versely, the new employer had no obligation to continue
to employ the employee.
s189A(3) is given.
Transfer of a business could therefore mean the termination of existing employment contracts.
Non-facilitation option If none of the parties request
a facilitator, section 189A stipulates that a minimum period of thirty days, from when notice in terms of section 7.8.2 LRA
189A(3) was given, must have lapsed before a dispute
may be referred to the CCMA or other council.
Original s 197 When the LRA came into operation,
section 197 endeavored to address job security in cases
of the transfer of a business in the normal run of things
7.7.10 Resolution of disputes
and as a result of insolvency. The section was much criticised for its creation of uncertainty and for failing to deDisputes regarding the procedural and substantive fairne certain concepts. The section did not expressly state
ness of dismissals by a small employer, and small-scale
that employees have the right to have their contracts of
dismissal by a big employer, are referred to the Labour
employment transferred; the courts had to read that into
Court.
the section. It also did not address the exact rights of the
In large-scale dismissals, disputes about procedural fair- employees in such a situation.
ness must be referred to the Labour Court within thirty
days after notice of dismissal has been given to employNew s 197 The rewritten section 197 attempts to adees.
dress the situation in a more calculated and extensive way.
In large-scale dismissals, where there are disputes about The most important dierence is that ordinary transfers
substantive fairness, there are two choices:
are dealt with separately from insolvency transfers.
1. strike action, in which case 48 hours notice must be
given; and

Section 197 applies only in cases of a transfer of a business.

Section 197(1) denes a business as the whole or a part

2. the Labour Court, to which the employee party may of a business, trade, undertaking or service.
elect to refer the dispute.
Transfer is dened as a transfer of a business [...] as a
In the case of dismissal for operational reasons of a single going concern.
employee, the employee may refer a dispute about sub- The right of employees to have their contracts transferred
stantive or procedural fairness either to arbitration or to is dependent, therefore, on the businesss transfer meeting
the Labour Court.
the exact wording of section 197.

44

Transfer The meaning of this word is wider than

a mere sale. In Schutte & Others v Powerplus Performance, the court held as follows:
A business or part of a business, may be
transferred in circumstances other than a sale.
These may arise in the case of merger, takeover
or as part of a broader process of restructuring within a company or group of companies.
Transfer can take place by virtue of an exchange of assets or a donation [.... G]iven the
range of circumstances under which a transfer
can take place, the need for an agreed price
or valuation may not arise. Consideration may
take some other form. The outsourcing in this
matter was part of a broader process of restructuring and must be seen against the backdrop of
the [old employers] acquisition of 50% stake
in the [new employer].
As a Going Concern Once it is established that
there was a transfer, the important question is whether
that transfer was of the whole or a part of any business,
trade, undertaking or service [...] as a going concern.
A distinction is often made between three ways of transferring a business:
1. a sale of shares;
2. a sale of assets; and
3. a sale of the business itself.
In respect of a sale of shares, it has been held that a distinction should be made between a transfer of a business
as a going concern and a transfer of possession and control of a business: the result of a sale of shares. A sale of
shares is excluded from the ambit of section 197.
In respect of a sale of assets, the court in Kgethe v LMK
Manufacturing held that an agreement to sell a portion of
the assets of a business is not a transfer as a going concern. Although this judgment was overturned on appeal,
it was on the basis that the court was not entitled to make
a nding as to the true of the agreement. Therefore the
previous decision is still tenuous authority for the proposition that a sale of assets does not constitute a transfer as
a going concern.
In Schutte v Powerplus Performance, however, the court
held that, irrespective of the form the agreement takes,
the court will look to the substance of the agreement to
determine whether or not it is transferred as a going concern.
The following factors may be taken into account in nding that there has been a transfer of a business as contemplated in section 197. This list is not exhaustive:

JOB SECURITY

a pre-existing relationship between the buyer and

seller;
a previous in-principle agreement to sell a certain
part of the business;
the wording of the contract itself;
the fact that the buyer employed the majority of the
employees;
use of the same premises by the buyer; and
continuation of the same activities without interruption.
In National Education Health & Allied Workers Union v
University of Cape Town, the court held as follows:
In deciding whether a business has been
transferred as a going concern, regard must be
had to the substance and not the form of the
transaction. A number of factors will be relevant to [this question], such as the transfer
or otherwise of assets both tangible and intangible, whether or not workers are taken over
by the new employer, whether customers are
transferred and whether or not the same business is being carried on by the new employer.
What must be stressed is that this list [...] is not
exhaustive and that none of them is decisive individually. They must all be considered in the
overall assessment and therefore should not be
considered in isolation.
Outsourcing The question of whether or not an outsourcing of services falls within the ambit of section 197
has been subject to some scrutiny.
In SAMWU v Rand Airport Management Company, the
employer outsourced its gardening and security services
to outside contractors, as this was cheaper. The court
held that the gardening and security services fell within
the ambit of the term service in section 197, and that
these services could be transferred from one employer
to another. The next question considered was whether
these services were being transferred as a going concern.
The court referred to the decision in NEHAWU v University of Cape Town, and armed that a exible approach
must be taken in nding an objective answer to this question. On the facts, the court held that the agreement between RAMC and the other employer in respect of the
outsourced services amounted to a transfer of a service
within the ambit of section 197. On the evidence, however, the court could not decide whether the agreement
between the two companies had been implemented, and
therefore could not decide whether the contracts had been
transferred from RAMC to the service provider.

7.8

Closures, mergers and sales of businesses

This decision conrms, however, that an outsourcing exercise may constitute a transfer of a going concern as envisaged in section 197. The Labour Appeal court did not
specify, however, what factors are to be taken into account, so this does not provide a nal answer to the question of whether or not all outsourcing arrangements will
fall within section 197.

45
Exceptions The general rule that the employees of the
old employer become the employees of the new employer,
with the same terms and conditions of employment, and
with continuity of employment, is subject to a number of
exceptions.
Section 197(3) provides that the new employer may provide terms and conditions of employment that are on the
whole not less favorable.
Furthermore, the consequences of a transfer, as envisaged in section 197(2), are expressly subject to an agreement in terms of section 197(6). Although employees
may insist on their contracts being transferred, the right
to be aorded the same contractual rights must be agreed
upon.

General rules Once it is established that s197 applies,

one must consider the eect thereof. The four consequences of such a transfer are listed in section 197(2).
These principles have far-reaching implications for the
new employer, who may want to restructure the business Regarding the identity if the parties, section 197(6)(a)
and possibly retrench employees.
states that the agreement must be with the same bodies
If the new employer decides to retrench employees, sev- or persons with whom an employer has to consult about
erance pay will be calculated on the basis of service with retrenchments. As far as the employer is concerned, eithe old and new employer to determine the years of ser- ther the old or the new employer may be the other party
to the agreement.
vice.
Similarly, remuneration and benets may be linked to Any agreement which interferes with the employees exyears of service, which may also place a nancial burden isting terms and conditions has to involve the employees
in order to be valid.
on the new employer.
Section 197 may also aect the freedom of the new em- In cases of retrenchment prior to transfer, the retrenchployer to apply certain selection criteria in cases of re- ment will only be substantively fair if the retrenchment
trenchment. In Keil v Foodgro (A Division of Leisurenet), is based on the operational requirements of the old emKeil was rst employed by MacRib and then by Foodgro, ployer and not those of the new employer.
who bought MacRib as a going concern. Keil was em- An employee of the old employer who refuses adequate
ployed in the same position by both employers. Foodgro alternative employment with the new employer when
sought to justify Keils selection for retrenchment on the faced with retrenchment by the old employer is not enbasis that it had applied LIFO, and that Keils old contract titled to severance pay.
was substituted with a new one when Foodgro bought the
business. The court rejected this argument on the ba- Only those rights which actually did accrue contractually
sis that section 197 provides for continuity of employ- to employees prior to the transfer are transferred. Only
ment, so Foodgro should have taken Keils service with the rights of the employees existing at the time of transfer
MacRib into account. Foodgros selection for dismissal become the obligations of the new employer.
was therefore fundamentally awed. Keil was awarded Employees cannot use section 197 as a form of statutory
nine months compensation.
bargaining to insist on better terms and conditions of emThe new employer will also be expected to pay for the ployment.
sins of the old employer. In NUMSA v Success Panelbeaters & Service Centre, an employee was unfairly dismissed by the old employer. The employee successfully
challenged the fairness of the dismissal, the Labour Court
ordering that the employee be reinstated. By this time,
however, the old employer had sold the business as a going concern. The court held, accordingly, that the new
employer was obliged to take the employee into service.

Not all benets (especially pension benets) are provided

by employers. Only existing rights may be transferred.
Section 197 of the LRA allows the transfer of employees
from one pension fund to another as a result of a transfer
of a business if the criteria in section 14 of the Pension
Funds Act are met.

There are a number of additional principles relating to the Insolvency The term sequestration refers to the insolvency of an individual. The terms liquidation and
consequences of a transfer.[80]
Should the new employer not adhere to its obligations to winding-up refer to the insolvency of a company, close
provide transferred employees with at least substantially corporation or other legal entity.
the same conditions or circumstances at work, and should
this lead to termination of the contract by the employee,
it will be considered an automatically unfair dismissal according to sections 186 to 187 of the LRA.

In the past, the approach has been that all contracts of employment between the insolvent employer and its employees terminate automatically. This meant that the employees lost their jobs. In respect of unpaid wages, they be-

46
came creditors of the insolvent estate of the employer. It
also meant that an employer could manipulate the process
of insolvency by applying for a provisional liquidation to
get rid of employees, and then come to some kind of arrangement with a prospective buyer, or with the creditors,
to ensure the survival or continuation of the operations.
The employer could thus ensure the automatic termination of the employment contracts without actually going
out of business.

COLLECTIVE LABOUR LAW

8 Collective labour law

Section 197A of the LRA addresses this situation.

This section also only applies to a transfer of a business. These terms have the same meaning as under section 197.
Section 197A applies only if the old employer is insolvent, or if a scheme of arrangement or compromise with
creditors is entered into in order to avoid winding-up or
sequestration.
As a general principle, the eect of section 197A is that
all employees of the old employer become employees
of the new employer; continuity of employment is preserved.
These consequences are also subject to agreement (between the employees and the new or old employer, or
both) to the contrary.
Other similarities between ordinary transfers and transfers in case of insolvency are:
The new employer complies with its obligations if
it takes over the employees as long as the terms and
conditions of employment are, on the whole, not less
favourable.
Subject to agreement, the new employer is bound by
pre-existing arbitration awards and collective agreements.
Provision is made for the transfer of employees from
one pension fund to another as a consequence of the
transfer of the business.
Resignation of an employee, faced with substantially
less favourable conditions and circumstances, will be
regarded as automatically unfair.
In transfers in the normal course of business, however,

COSATU is South Africas largest trade-union federation.

The power play between employers and employees is

clearly in evidence in the engagement of employer and
employee through collective labour law. The LRA, together with other labour legislation, lays down basic rights
and duties and remedies for ensuring fairness in the employment relationship. These are matters relating to the
rights of employees and are accordingly known as rights
issues.[81] When it comes to creating new terms and conditions of employmentthese are known as interest issues or matters of mutual interest[82] or to changing
existing terms, no legislation exists which explicitly regulates the situation. These issues, it is assumed, are better dealt with by the parties themselves. A court may
not, for example, determine an annual increase for employees, or decide whether or not a crche facility at the
workplace is mandatory, or whether employees should be
permitted to take Friday afternoons o. The reason for
this is that it is impossible to regulate these matters of
mutual interest.[83] This is where collective bargaining
comes into the picture.

The LRA recognizes the importance of collective bar the rights and obligations of the old employer and the gaining and supports the mechanism:
employees at the time of the transfer remain; and
the new employer does not inherit the sins of the
old employer.
Subsections 197(7) to (9), regarding the valuation and
provision of accrued benets, do not apply to transfers
in cases of insolvency.

If collective bargaining can be compared

to a boxing match, the LRA can be seen as the
organiser of the boxing match and the employers and trade unions are the boxers on opposite sides. The LRA provides the basic rules to
protect the boxers both inside and outside the
boxing ring. This is done, for example, by pro-

8.1

History

47

tecting the right of employees to form and join

trade unions and to participate in their activities. This applies equally to employers who can
form employers organisations.[84]

industrial councils or conciliation boards, as well as a dispute settlement system. Although the Act was largely
voluntarist,[88] compliance with its provisions and with
collective agreements was enforced by criminal sanction.
The 1924 Act resulted in greater wage disparity between
Section 213 of the LRA denes a trade union as an asso- dierent racial groups. The Industrial Conciliation Act
ciation of employees whose principal purpose is to regu- dealt only with collective labour rights; individual rights
late relations between employees and employers, includ- were dealt with in a Wage Act in 1925.
ing any employers organisation. An employer organisation is dened as any number of employers associated
8.1.2 Industrial Conciliation Act (1937)
together for the purpose, whether by itself or with other
purposes, of regulating relations between employers and
Problems of enforcement led to a major revision of South
employees or trade unions.[85]
African labour law, with the introduction of the Industrial
The LRA regulates the registration of trade unions and Conciliation Act 1937. The 1937 Act tried to introduce
employers organisations. It creates bargaining fora, such more councils, in a greater geographical spread, so that
as bargaining councils and statutory councils, and guaran- more collective engagements could be facilitated. There
tees the right to freedom of association. It also regulates was a proliferation of unregistered trades union for black
organisational rights and strikes and lock-outs.
people, who were legislatively excluded. Specically,
Once workers are organised in a registered trade union, pass-bearing black workers were excluded, although cerand employers in an employers organisation, the power tain black women could unionise.
play between workers and employers begins. Employees may try to force the employers hand by way of strike
action, while the employer ma exert pressure on the employees by way of a lock-out. It is accepted that strike action will result in a certain measure of economic handship
for the employer. Provided that the strike has obtained
protected status in terms of the lawin other words, is
not prohibited, and the prescribed procedures have been
followedsuch economic hardship is considered to be
part and parcel of the power struggle between employees
and their employers: In fact, this is the whole idea!"[86]
The more the employer is hurt economically, the greater
the chance that the strikers demands will be met.

8.1.3 Botha Commission

1948 was a watershed year. The Nationalist Party won

the election, albeit by small margin (which grew in later
years), on the promise of apartheid. The Botha Commission was established to determine how to regulate labour
relations in such a way as to protect the interests of white
people. The Commissions comprehensive review led to
legislation that had a far-reaching eect on the labour
structure. Trade unions were racially divided, job reservation was introduced and blacks were precluded from
joining registered trade unions. The commission recomIt is important to know when a strike or lock-out is pro- mended that black trade unions should be dealt with in
tected, and when it is not, because that will determine the separate legislation, but the government went a step furcourse of action and remedies for employers in the case ther and created an entirely separate legislative frameof a strike, and for employees in the case of a lock-out.
work for black workers in general. Trade unions in the
1950s among black workers were therefore not part of
the formal collective bargaining framework.

8.1

8.1.1

History

Industrial Conciliation Act (1924)

Between 1911 and 1918, a succession of laws was promulgated in South Africa which dealt with various industrial sectors, and with labour in general. Only in the
aftermath of large-scale industrial unrest on the Witwatersrand in 1922, however, was any comprehensive attempt undertaken to regulate relations between management and organised labour. The tumult on the Rand led
directly to the rst comprehensive piece of labour legislation, the Industrial Conciliation Act 1924, which was
also the rst legislation to regulate strikes in the country.
It also recognised and regulated lock-outs. The Act provided for the registration of white trade unions and employers organisations, self-evidently also white,[87] and
established a framework for collective bargaining through

By 1952, black women were also excluded from tradeunion membership, while in 1953 the Black Labour Relations Regulation Act made provision for, inter alia, the
creation of a Central Black Labour Council and regional
committees, black labour ocials and black workers
committees. 1956 saw the prohibition of the creation
of mixed-race trade unions, necessitating dierent unions
for dierent race groups. This was part of the States attempt to isolate and fragment the workforce. It fuelled
unrest, however, rather than quelling it.
In the 1970s, the power of the black trade unions became
especially notable, in a period marked by political unrest
and industrial action. In 1973, provision was made for the
creation of liaison and coordinating committees, and a restricted right to strike was accorded black workers. This
attempt to accommodate black interests, without recognizing their parity with white interests, did not have the

48

COLLECTIVE LABOUR LAW

constitutional order,[89] was very fragmented. There

were numerous denitional problems, too. Given the
prominent role played by trade unions in bringing down
8.1.4 Wiehahn Commission
apartheid, and given the rapid and large-scale movement
of former union leaders and cadres into party politics and
This dualistic system of labour relationsone for blacks government, it is hardly surprising that much attention
and the other for whites, coloureds and Indians was given to labour rights m the new dispensation.[90]
(although the latter groups were also discriminated
against)lasted until the beginning of the 1980s. To- The right to fair labour practices, the right to bargain
wards the end of the 1970s, the Wiehahn Commission collectively and the right to strike were entrenched with
made signicant recommendations for change, which a number of other fundamental rights in a new interim
changed the face of collective bargaining in South Africa. Constitution that came into force in 1993. Those rights
The Commission produced a six-part report, the primary remained entrenched in the nal Constitution, adopted
by the new democratic parliament on 8 May 1996. At
recommendations of which were
that point, although all parties agreed that these fundamental labour rights should be given constitutional sta that full trade union rights be accorded black work- tus (although there was some dispute about the extent of
ers;
an employers right to lock out), there was room for disagreement on the scope and content of those rights. The
that job reservation be scrapped;
nal Constitution provided that national legislation may
be enacted to regulate collective bargaining.
that a Manpower Commission be established; and
desired eect.

From this cue, writes John Grogan, the government

that the Industrial Court replace the existing Indusset about preparing legislation to give esh to the bones
trial Tribunal and be given extended powers.
of the constitutional guarantees.[91] The rst step was to
appoint a commission, under the chairmanship of ProIn an attempt to give eect to these recommendations, fessor Halton Cheadle, to produce a draft Labour Resignicant amendments were made to the Industrial Con- lations Amendment Bill. This was accomplished six
ciliation Act (renamed the Labour Relations Act 28 of months later. The draft formed the basis of the new
1956), which with further amendments formed the leg- Labour Relations Act 66 of 1995, which appeared in its
islative structure for regulating collective labour relations current form after intensive debate[92] in the National
for the next 15 years.
Economic Development & Labour Council (NEDLAC),
The countrys labour laws were thus largely dera- a body consisting of representatives of government, orcialised. All African workers who were not migrant ganised labour, and employers, including the Manpower
workers could now join trade unions. The National Man- Commission and the National Economic Forum. They
power Commission, a statutory body comprising repre- started thrashing out a new framework, to deal compresentatives from employers organisations, trades and the hensively with both individual and collective labour law.
State, which would meet to discuss economic and indus- Given the adversarial nature of the relationship between
organised labour and employers up to that point,
trial policy, was duly established.
In recognition of the fact dispute-resolution mechanisms,
thitherto inadequate, needed to be bolstered, the Industrial Court (predecessor of the present-day Labour Court)
was duly established, too. The Industrial Court was
largely hands-o in respect of collective bargaining, in
which it did not think it had any place involving itself
here.
The last change to be implemented as a result of the
Commissions ndings was the removal of race-based job
reservation, which was seen as having contributed to the
unrest. These changes led to a tremendous growth in the
trade union movement, which proved instrumental, especially in the 1980s, in the struggle against apartheid.

this was a revolutionary development. Under the watchful eye of government representatives, and with their participation, management and labour were entrusted with the task
of developing the draft bill into a uniquely
South African product that at once satised the
aspirations of labour and the reservations of
management, and yet conformed to the letter
and spirit of the Constitution and the requirements of the International Labour Organisation (ILO), of which South Africa was now a
member.[93]

This produced the current LRA, yet another turning

point.[94] One of the hopes of the drafters was to change
the adversarial stance which tended to be adopted by
The system in place up to the advent of democracy, when unions and management under the old dispensation to a
South Africa was shaken to the roots by the transfor- more co-operative one. The LRA created new institutions
mation of the apartheid regime into a fully democratic for encouraging union-management cooperation, and re8.1.5

Labour Relations Act (1995)

8.3

Freedom of association

49

vamped old ones, in the hope this would help transform The Preamble also describes as a purpose of the LRA
and mature attitudes and bargaining styles.[95]
the promotion of collective bargaining, and the regulation of the rights to strike and to lock out. It seeks also
to advance the democratization of the workplace by involving employees in decision-making through workplace
8.2 Sources
forums, although these have not proliferated.[103]
8.2.1

Common law

The common law of South Africa, an amalgam of principles drawn from Roman, Roman-Dutch, English and
other jurisdictions, which were accepted and applied by
the courts in colonial times and during the period that
followed British rule after Union in 1910,[96] plays virtually no role in collective labour law. Initially, in fact,
employment law, or the law of master and servant, was
regarded as a branch of the law of lease. As such, the
common law did not concern itself directly with collective bargaining; its focus instead was on the rights and duties of individual employees and employers, as reected
in the contract on which their relationship was based. The
law did not recognize claims by employees which had not
been conferred by agreement. Although the role of the
common law is minimal, therefore, it should be noted that
the common-law contractual relationship between employer and employee underpins collective labour law in
general and collective bargaining in particular.

8.2.2

Constitution

Legislation therefore is pivotal. The Constitution, however, is more pivotal still. Section 23 enshrines the
right to fair labour practices, while section 18 provides that everyone has the right to freedom of association. The right to strike, furthermore, has been explicitly constitutionalized.[97] The Constitution also provides
not only for the right of every worker to form and join a
trade union,[98] but also for the right of every trade union
to form and join a federation,[99] like COSATU. Similar rights are granted to employers and employers associations as well.[100] The right to collective bargaining
is constitutionalized, with a mandate for national legislation to regulate it.[101] More controversially, the Constitution also provides that national legislation may recognize union security arrangements contained in collective
agreements.[102]

8.2.3

Labour Relations Act

The LRA denes as an employee any person (excluding

an independent contractor) who
works for another person or the State;
is entitled to receive remuneration for such work;
and
assists in conduct of the business.
Trade union is dened in the LRA as an association strictly of employees,[104] whose principle purpose is
to regulate relations between employees and employers.
The trade union must act in the interests of its members.
Trade unions also support individual members with individual disputes. A trade union must have an address
in South Africa, and its name must not be so similar to
that of another union that it is likely to mislead or cause
confusion.[105] Other requirements are set out in section
95.
Excluded from the application of the LRA are the members of
the National Defense Force;[106]
the National Intelligence Agency;[107] and
the South African Secret Service.[108]

8.3 Freedom of association

Freedom of association, one of the cornerstones of liberal democracy,[109] is also one of the basic principles of
labour law, reected in several ILO Conventions,[110] in
the LRA and in the Constitution.[111] Freedom of association stems from a basic human need for society, community, and shared purpose in a freely chosen enterprise
[...] protecting individuals from the vulnerability of isolation and ensuring the potential of eective participation
in a society.[112] In short, people have the right to associate with others in order to defend and protect their common interests. This constitutes both an individual and a
collective human right.[113] In addressing the individual
facet of freedom of association, the Supreme Court of
Canada, in Lavigne v Ontario recognized that the essence
of freedom of association is the protection of the individual interests in self-actualization and fulllment that can
be realized only through combination with others.

Collective bargaining is one of the ways in which the LRA

gives eect to section 23 of the Constitution. It is also
an important part of freedom of association. Among the
rst of the LRAs aspirations, listed in the Preamble, is
to regulate the organisational rights of trade unions. A
trade union without organisational rights is not much of
a trade union. Organisational rights allow the trade union
However, writes Mpfariseni Budeli,
to access the workplace, etc.

50

8
freedom of association is important not
only to facilitate eective participation in civil
and political society. It is equally important in
the eld of social and economic activity and is
particularly signicant as a basis for securing
trade union freedom from interference by the
employer on the one hand and the government
on the other.[114]

Freedom of association in the workplace may be dened as those legal and moral rights of workers to form
unions, to join unions of their choice and to demand that
their unions function independently.[115] It also includes
the right of workers to participate in these unions lawful activities. Freedom of association must therefore be
seen, according to Budeli, as the foundation of the collective bargaining process,[116] which contributes to ensuring fairness and equity in labour matters, and to facilitating orderly and stable industrial relations.[117]
Freedom of association is the foundation of the
collective-bargaining process. Before a group or collective may engage in collective bargaining, it is necessary
that legal protection be extended to that group or collective. Legal measures are also necessary to protect the
rights of people to belong to a group or collective. This
is what freedom of association is all about: the legal protection of the freedom of persons to join a collective entity. The law, therefore, both permits people to join trade
unions, and also protects their right to do so.
The ILO Committee of Experts has provided what can
be regarded as the correct approach concerning freedom
of association and social policy.[118] In the Committees
view, freedom of association should be guaranteed in
such a way as to allow trade unions to express their aspirations, and so as to provide an indispensable contribution
to economic development and social progress.

COLLECTIVE LABOUR LAW

every trade union, employers organisation

and employer has the right to engage in collective bargaining. National legislation may be
enacted to regulate collective bargaining. To
the extent that the legislation may limit a right
in this chapter the limitation must comply with
section 36(1).
While the Constitution lays emphasis on the importance
of freedom of association, the LRA emphasizes, protects and gives concrete content to this foundational right.
The LRA recognizes the right of trade unions to organize
themselves. Membership of a trade union is subject to
the constitution of the trade union.[120] This means that
a union may determine, in its constitution, what types of
employees may become members of the union, and what
types of employees are disqualied from membership.
Unless an employee qualies for membership in terms
of the unions constitution, he is ineligible for membership. This principle has its limits. A trade union which
attempts, through its constitution, to limit its members to
persons of a certain race or sex could nd such a provision ruled invalid; it would certainly not be registered in
terms of the LRA.[121]
Section 4 does not only protect the right to join and form
a union. It also grants members of a union the right to
participate in the aairs of the union. As a member of a
trade union, an employee has the following rights:
to participate in the unions lawful activities;
to participate in the election of any of the unions
oce-bearers, ocials or trade-union representatives;
to stand for election, and be eligible for appointment,
as an oce-bearer or ocial, and to hold oce if
elected or appointed; and

The Constitution grants a general right to freedom of association to everyone, as well as explicitly and specically to trade unions.[119] Section 23 of the Constitution
to stand for election, and be eligible for appointprotects the right of employees to form and join a trade
ment, as a trade-union representative, and to carry
union and to participate in the activities and programmes
out, if so elected or appointed, the functions of a
of that union. Freedom of association does not apply only
trade-union representative in terms of the LRA or
to employees, however; the employers freedom of asany collective agreement.
sociation is protected, too: Section 23 also protects the
right of employers to form and join employers organisations, and to participate in the activities and programmes Again, these rights are subject to the constitution of
the union. If the constitution of a union requires that
of such organisations.
the nomination of a candidate as union oce-bearer be
Both trade unions and employers organisations have the
signed by ten members in good standing, and also that
right
the election be by means of a secret ballot at the unions
to determine their own administration programs and annual conference, these provisions of the union constitution must be complied with.
activities;
to organize; and
to form and join a federation.
Finally,

The LRA specically grants employees the right to freedom of association,[122] and protects both employees and
people seeking employment,[123] should this right be infringed by the employer. Section 5 of the LRA prohibits a wide range of actions which infringe the right

8.3

Freedom of association

to freedom of association in section 4. In terms of section 5(1), No person may discriminate against an employee for exercising any right conferred by this Act.
Examples of such discrimination would include an employers dismissal of an employee, or failure to give an
employee a discretionary annual bonus, because the employee joined a trade union, and an employers resort to
harassment against an employee because that employee
has been elected as a trade-union representative.

51
1. Employers and employees must be protected against
state infringement of the right. If the legislature
enacts legislation that infringes the right, it may be
challenged on the basis that it is in conict with section 23 of the Constitution (South African National
defense Union v Min of Defense and another).
2. Employees freedom of association should be protected against attempts by the employer to infringe
this right. It is in this regard that the LRA plays an
important role.

The general protection of section 5(1) is complemented

by section 5(2), which prohibits certain specic types of
conduct that would undermine freedom of association. In
terms of section 5(2)(a), no person may require an em- Although the right to freedom of association is not only
guaranteed in terms of the LRA, but also in terms of
ployee
the Constitution, the scope of this right has not been
tested. The question has arisen, however, of whether or
not to be a member of a trade union;
not groups excluded from the application of the LRA,[126]
such as the Defense Force, are entitled to form and join
not to become a member; or
trade unions, based on their constitutional right to freedom of association. The issue came before the Constitu[124]
to give up membership.
tional Court in SANDU v Minister of Defence. The court
found that, although uniformed members of the South
The LRA grants the right of freedom of association to African Defense Force, the Secret Service and the Intelemployers as well.[125]
ligence Service are excluded from the protection of the
[127]
they may claim the right to freedom of associSection 5(2)(b) provides that no person may prevent an LRA,
[128]
employee (or a prospective employee) from exercising ation under section 23 of the Constitution.
any right in terms of the LRA, or prevent an employee Section 4 of the LRA states that all employees have the
from participating in any LRA proceedings. For exam- rights set out in that section. Section 4 therefore applies
ple, where an employer prevents an employee from stand- to senior managers as well. This may in some circuming for election as a trade-union representative, or where stances, and does,[129] cause problems both for employhe threatens a union representative with dismissal be- ers and for the managers themselves. A senior manager
cause the representative is representing a union member involved in the formulation of an employers approach to
at a disciplinary hearing, the employer would be acting the annual wage negotiations (including its nal oer)
unlawfully.
may not be able to perform his functions properly if he
In terms of section 5(2)(c), employees or job seekers may is also a member of the union sitting on the other side
not be prejudiced because of their trade-union member- of the bargaining table. It might be dicult, too, for the
ship, their joining a trade union, their participation in the manager not to divulge condential information, bearing
lawful activities of a trade union, or their disclosure of on the bargaining process, to the union.
information that they are entitled or required to disclose. This issue arose for decision in the case of Independent
Section 5(3) prohibits an employer from attempting to Municipal and Allied Trade Union v Rustenburg Transipersuade or tempt an employee into surrendering rights tional Council, where the Labour Court declared uncongranted in terms of the LRA. The employer may not, for stitutional a prohibition on senior managers holding execexample, oer to promote the employee, or promise a utive positions within a union. The court indicated, howwage increase, on the condition that the employee sur- ever, that there are limitations to the scope of section 4. It
pointed out that, in terms of common-law principles, an
render rights accorded him by the LRA.
employee owes an employer a duty of delitya duty
Section 5(4) provides that any contract of employment to act in good faith. Because of the conicting aims of
that limits freedom of association, either directly or in- trade unions and employers, the joining of a union and
directly, is regarded as invalidirrespective of whether participation in its aairs may, in terms of common-law
or not the contract was concluded before the LRA came principles at least, and especially in the case of senior
into eect.
managerial employees, breach this duty of delity.
In terms of section 187 of the LRA, it will be an auto- Common-law principles have been amended by the Conmatically unfair dismissal if the employer, in dismissing stitution, and especially by section 4 of the LRA. The
an employee, acts contrary to the provisions protecting an court in IMATU stated that the rights granted in section 4
employees right to freedom of association.
are unequivocal and unconditional, but that they are not
The protection of freedom of association, then, has two unlimited. Employees, including senior managers, are
aspects:
entitled to join trade unions and take part in their aairs,

52
but this does not relieve them of their contractual obligations to their employers. If, for example, an employee
takes time o without permission to attend to union affairs, the employee may be disciplined on the basis of
misconduct. If a senior employee, part of whose job it
is to conduct disciplinary enquiries, refuses to undertake
this task when union members are disciplined, this will
amount to incapacity.
A senior employee who has access to condential information of the employer must also, the court added, tread
carefully when conducting trade-union business, and ensure that this information is not disclosed.
In FAWU v The Cold Chain, where an employee was offered a managerial position as an alternative to retrenchment, on condition that he no longer participated in the
activities of the union, he refused and was retrenched, and
the court found his dismissal to be automatically unfair,
holding that there was nothing absurd in permitting a senior managerial employee to participate in the activities
of a trade unionprovided that the employee complies
with his contractual obligations.
In Kroukam v SA Airlink, the court held that Kroukams
dismissal was automatically unfair in terms of section
187(1)(d) of LRA, because he had been dismissed for
union activities and for initiating litigation against the
company on behalf of his union. The court, in delivering
its verdict, cautioned against the argument that participation in trade-union activities destroys the trust relationship between employer and employee; such an argument
is unacceptable on policy grounds.
Managerial employees, therefore, must balance the right
to freedom of association with their common-law duty to
act in good faith towards their employers. If a manager,
for example, divulges information to the trade union that
he acquired by virtue of his managerial position, he may
be disciplined.[130]

COLLECTIVE LABOUR LAW

an employee to belong to a union in the rst place, or to

belong to a union other than the union of the employees
choice.
Where the limits of freedom of non-association lie is the
subject of considerable controversy.
Closed-shop agreements exist where an employer and a
trade union conclude a collective agreement in terms of
which the employer undertakes to employ or retain in its
services only those employees who have joined the union.
The closed-shop agreement forces employees to join a
certain union if they are to keep their jobs. A closedshop agreement could be seen as an infringement of the
employees right not to associate.
Sometimes mention is made of the freedom of dissociation. This refers to the situation where employees who
have decided to associate with each other also decide to
prevent other employees from associating with them: for
example, where the unions constitution stipulates that
only employees in a certain industry may join.
In practice, this freedom of dissociation is not so controversial. More controversial is that the constitutions of
some unions state that the union has the right to refuse
to admit a person as a member of that union even if that
person is eligible for membership. A constitution may
also provide for the expulsion of members. This becomes
vitally important if there is a closed-shop agreement, because the refusal of membership of the union may mean
the loss of a job.
8.3.2 Dispute resolution

If a person alleges that one of the rights relating to

freedom of association has been infringed, the disputeresolution procedure contained in section 9 of the LRA
applies. Disputes about the interpretation or application of the right to freedom of association should be reSections 6 and 7 of the LRA grant and protect employer
ferred for conciliation to a bargaining council, a statutory
rights to freedom of association in terms similar to those
council[131] or (if no council exists) the Commission for
granted to employees: to form, join and participate in the
Conciliation, Mediation and Arbitration. If the dispute
activities of employers organisations.
remains unresolved, it should be referred to the Labour
Court for adjudication, unless the parties agree to arbitration.
8.3.1 Freedom not to associate and freedom to dissociate
Freedom of association is generally regarded as a positive
right; it protects the rights of employees and employers
actively to form collective entities and to join them. In
the case of trade unions, this positive right is protected by
prohibiting both the State and employers from infringing
it.
Freedom of association also has a negative aspect, however. This does not refer to any disadvantages or drawbacks it may have; it refers to the right not to associate.
In the context of labour relations, the principle of freedom of non-association means that no person may force

8.3.3 Union security arrangements

The Constitution allows for union security arrangements
contained in collective agreements.[132] There is no rm
denition of the term union-security arrangements, but
it is generally viewed as a generic term for a collective
agreement between an employer or employers organisation and a trade union or trade unions, in terms of which
union membership, or alternatively the payment of trade
union subscriptions, is a condition of employment for all
employees. Clearly this infringes upon an employees
right to freedom of association. Union security arrange-

8.3

Freedom of association

53

ments therefore require compulsory union membership, also from those who are eligible for membership. Conor compulsory payment of a union subscription.
scientious objectors to the policies of the union (on reIn the South African context, the term union-security ligious or moral grounds) must pay the fee; the fee, in
arrangements refers to the so-called closed-shop and turn, must be paid into a fund administered by the DoL.
agency-shop agreements. The only limits set in the The fee that non-members pay must not be higher than
the subscription fee payable by members of the majority
Constitution are that such agreements must
union. Agency fees are paid over to a separate account
and may be used only for the benet of all employees at
be contained in a collective agreement; and
the workplace. Agency fees may not be used for political
aliation and may not be used for any purpose other than
comply with the general limitations clause of the advancing or protecting the socioeconomic interests of
Constitution.[133]
employees. The employer may deduct agency fees from
the wages of employees without their authorisation.
The two types of union security arrangements are illustrated by way of the following example:
Closed-shop agreements A closed shop is dened in
section 26(1) of the LRA: A representative trade union
K employs 100 employees. 60 of them beand an employer or employers organisation may conlong to trade union T. These members pay a
clude a collective agreement, to be known as a closedmonthly membership fee of R20. From the
shop agreement, requiring that all employees covered by
other 40 employees 10 belong to union R and
the agreement be members of the trade union.
30 are non-unionised. Every year with wage
A closed-shop agreement is concluded by a majority
negotiations, T negotiates with K and the inunion and an employer or an employers organisation, by
crease agreed on is applied across the board. T
way of a collective agreement. The employees to be covfeels that it does all the hard work which both
ered by the agreement must have a ballot before a closedunion and non-union members benet from. If
shop agreement is concluded. Two thirds of the employT concludes an agency-shop agreement with K,
ees (who will potentially be covered) who voted must
it will mean that K will deduct an agency fee of
have voted in favour of the agreement. Union subscripR20 from the salaries of all the other 40 emtion fees may not be used for political aliation; they may
ployees and pay it over to T. The other 40 embe used only to advance the socioeconomic interests of
ployees do not have to become members of T
the employees. Employees who were already employed
[... but] the members of R will pay their own
when the closed-shop agreement came into eect, along
membership fee for R as well as the R20 agency
with conscious objectors, may not be dismissed for refee.
fusing to join the union which is a party to a closed-shop
agreement. A closed-shop agreement may be terminated
If K and T conclude a closed-shop agreeif a majority of the employees votes for its termination. It
ment, it will mean that all other 40 employees
is not unfair to dismiss an employee for refusing to join a
of K must become members of T. R will no
union which is a party to a closed-shop agreement, or who
longer be allowed to operate in the workplace.
is refused union membership, or has been expelled from
All 100 employees will have to pay the R20
a union which is a party to the agreementprovided that
membership fee to T.[134]
the refusal or expulsion is in accordance with the unions
constitution, and provided that the reason for the refusal
or expulsion is a fair one.
Agency-shop agreements An agency-shop agreement
An employee may not be required to be a member of
is dened in section 25(1) of the LRA: A representative
a majority union before the commencement of employtrade union and an employers organisation may conclude
ment. The latter is called a post entry closed-shop agreea collective agreement, to be known as an agency shop
ment. The opposite of this is a pre-entry closed-shop
agreement, requiring the employer to deduct an agreed
agreement: that is, a closed-shop agreement that requires
agency fee from the wages of employees identied in the
an employee to be a member of a majority trade union beagreement who are not members of the trade union but
fore employment. Pre-entry closed shops are not allowed
are eligible for membership thereof.
in South Africa.
An agency-shop agreement is concluded by a majority
union and an employer or an employers organisation
concluded, that is, by way of a collective agreement. The Distinction There is an important dierence between
employer must deduct an agreed agency fee from the the two: In the agency shop, employees are not compelled
salaries of the employees identied in the agreement. In to be or to become members of the trade union. In the
this regard, it is important to note that it may be deducted closed shop, however, all employees who are covered by
only from those who are not members of the union but the collective agreement must be or must become mem-

54
bers of the trade union.
Controversy The reason for these agreements relates
to the nature and practice of collective bargaining. Under
certain circumstances, employees who are not members
of a trade union will be bound by the provisions of an
agreement entered into by the union. In other circumstances, the employer may, in the interests of administrative convenience, extend the provisions of a collective agreement to non-union members. In eect, employees who are not members of the trade union may derive benets from a collective agreement entered into by
a union. Understandably,[135] unions have reservations
about this state of aairs. These non-union employees
are sometimes called free riders, because they derive
benets for free: They do not pay union subscriptions,
but they still obtain the benets of the unions collective
bargaining. This is the main argument in favour of forcing employees either to belong to a union (in the case of
closed-shop agreements) or to pay a fee (in the case of
agency-shop agreements).
Those who support union-security arrangements argue
that they are necessary to avoid free riders. Furthermore, there is a view that they encourage responsible
unionism.[136] They support collective bargaining by aiding the development of strong and representative trade
unions. Such arrangements are said to give union organizers a sense of security, and to enable them to devote themselves to the long-term interest of their members, instead
of collecting subscriptions and trying to persuade reluctant employees to join.[137] For some, the main justication for union-security arrangements is that they add to
the power of the unions during the collective-bargaining
process, creating a more eective counterbalance to the
naturally superior economic power of the corporate employer. This they do by preventing the defection of members during wage bargaining which may lead to strike
action.[138]

COLLECTIVE LABOUR LAW

ing double subscriptions (one for their union and one

for the representative union); and
that union security arrangements, particularly
closed-shop arrangements, infringe the right not to
be a member of a trade union or the freedom not to
associate, which is an intrinsic part of the right of
freedom of association.[140]
The two ILO Conventions on freedom of association and
collective bargaining do not make any express reference
to the notion of union-security arrangements. The ILO
Committee also left it to the practice and regulation of
each state to authorise and, where necessary, to regulate
the use of union-security clauses in practice.[141]
According to the Committee, union security arrangements are compatible with the ILO Conventions on freedom of association, provided that they are the results of
free negotiations between workers organisations and employers. As long as this is the case, then, the international
body will not interfere with them, provided that the law
of a particular country does not go so far as to impose
them generally and make union membership compulsory.
However, when trade union security clauses are imposed
by the law itself, then the right to join an organization of
ones own choosing is compromised, and those provisions
will be incompatible with the ILO Convention. Accordingly ILO member states are at liberty to include or not to
include in their constitutions and labour legislation provisions regulating union-security arrangements.

Despite the arguments in favour of agency shops and

closed shops, it would appear prima facie that these types
of agreement do infringe the employees freedom of association. Particularly in the case of a closed shop, an employee is no longer free not to associate: The employee
must belong to a specic trade union. Employees are no
longer free to chose which union they want to belong to,
or even if they want to belong to a union at all. If the
employee is not a member of a particular trade union, or
There may also be some benet in such arrangements for if he loses his trade-union membership in terms of the
the employer. If all employees belong to one union (or unions constitution, the employee may end up out of a
contribute to that union), the employer need only deal job.
with that specic union. As a collective-bargaining relationship grows, a certain pattern and consistency of col- It has been argued, accordingly, that the closed-shop
agreement amounts to an infringement of the employees
lective bargaining can thus be formed.
freedom of association, as protected by sections 18 and
On the other hand, those who consider that the unions 23 of the Constitution. The situation is dierent in the
already possess monopoly status and excessive power see case of agency shops: The employee still has the freeunion security arrangements, particularly the closed shop, dom to choose whether or not he wants to belong to the
as a main cause of undesirable state of aairs at the union which is party to the collective agreement"that
workplace.[139] The main arguments against union secu- is if the employee wants to belong to a union in the rst
rity arrangements are,
place.[142]
in the case of closed-shop agreements, that they give The solution to this problem lies in a constitutional promore power to the unions, since the union controls vision, section 23(6) of the Constitution, which provides
that national Legislation may recognize union security
the pool of applicants for the post;
arrangements contained in collective agreements. To the
in the case of agency-shop arrangements, that work- extent that the legislation may limit a right in this Chapers who are members of minority unions end up pay- ter, the limitation must comply with s 36(1). In other

8.4

Organisational rights

55

words, union-security arrangements are permitted within

the scheme of constitutional rights, and these arrangements may be recognized by national legislation (the
LRA).

the ways it seeks to do this is by enabling trade unions

to acquire organisational rights in certain circumstances.
The granting of organisational rights to a trade union is
seen as a way of enabling that trade union to establish
Agency shops and closed shops, then, are not automat- a collective-bargaining relationship with an employer or
ically unconstitutional, but a limitation of any right by employers organisation.
a union-security arrangement must comply with section The trade union is the essential instrument for engaging
36(1) of the Constitution, which provides that a funda- in collective bargaining. The LRA sets certain minimum
mental right, such as freedom of association, may be lim- rights for trade unions (which may be expanded upon by
ited by legislation as long as that limitation is reasonable agreement) in their engagement with employers. These
and justiable in an open and democratic society based organisational rights are granted to unions by the LRA to
on human dignity, equality and freedom. Section 36(1) enable them to function more eectively, to build support
contains a list of the factors that must be considered:
at the workplace, and thereby to lay the foundations of a
collective-bargaining relationship with the employer.
the nature of the right;
If the union, through the acquisition of organisational
rights, gains sucient membership and a signicant pres the importance and purpose of the limitation of the
ence in the workplace or industry, an employer or emright;
ployers organisation may be persuaded to recognize the
the nature and extent of the limitation, and the pur- union for the purpose of collective bargaining.
pose of the limitation; and
whether or not there are less restrictive means to
achieve this purpose.
Applied to agency and closed shops, the purpose of these
arrangements is, at least in part, to enhance collective bargaining by the development of strong and powerful trade
unions and stable bargaining relationships. (Collective
bargaining is also protected by section 23 of the Constitution.)
While agency shops do not represent all that serious an infringement of freedom of association, it is clear that the
closed-shop agreement does. The question (which still
awaits an answer) is whether or not it is really necessary
to force employees to become members of a union, especially when a less restrictive methodthat is, the agency
shopexists.
Dispute resolution Disputes about collective agreements (including closed- and agency-shop agreements)
must be referred to the Commission for Conciliation, Mediation and Arbitration for conciliation. If conciliation
fails, any party to the dispute may refer the matter to arbitration. By way of exception, the LRA makes provision
in this context for an appeal against an award issued by the
Commission for Conciliation, Mediation and Arbitration
commissioner. The arbitration award may be taken on
appeal to the Labour Court.[143]

8.4
8.4.1

Organisational rights
Purpose

The LRA does not impose a legal obligation on employers to bargain collectively with unions. The law encourages collective bargaining; it does not compel it. One of

8.4.2 Registration
Prerequisite Organisational rights are granted only to
registered trade unions. The LRA does not compel trade
unions and employers organisations to register, but it
does encourage registration. It does this by granting most
of the rights in the LRA only to registered unions. For
instance, only a registered union may
conclude collective agreements which are enforceable in terms of the LRA;
apply for the establishment of a bargaining or a
statutory council;
apply for the establishment of a workplace forum;
authorize a picket by its members; and
exercise organisational rights.
Registration is not a prerequisite for protected strike action.
Procedure Once a trade union or employers organisation has complied with the requirements set out in the
LRA, the Registrar of Labour Relations must register the
union or organisation. In respect of unions, there are four
requirements to be met:
1. The name of the union, and the shortened form of
that name, may not resemble the name or shortened
name of another union.
2. The constitution of the union must comply with certain requirements.
3. The union must have an address in South Africa.

56

COLLECTIVE LABOUR LAW

4. The union must be independent; it must not be under Deduction of union fees This is the primary source of
the control of the employer or employers organisa- income for unions. Section 13 of the LRA grants unions
tion.
the right to stop-order facilities. Union fees are used to
perform the work and functions of the union, to hire ofThe rst three requirements apply also in the case of an cers and oces, and to provide training. There is no
employers organisation; the last one, given the overlap, stipulation in the LRA or in related regulations as to how
much unions are allowed to charge, but usually it is not
obviously does not.
much. The amount is determined by the constitution of
the trade union.
Specic rights The LRA makes provision for granting
of ve types of organisational rights. Other organisational Payment is voluntary: A member of a registered and
rights may also be granted which are not referred to in suciently representative union may authorize the emthe LRA; these must be obtained through negotiation and ployer, in writing, to deduct union subscriptions from his
agreement. The ve types of organisational rights made wages. Usually this is done on the union membership
provision for in the LRA are listed and discussed below: form. The employer should start to make the deductions
agreed to as soon as possible, and should pay the subscription over to the union not later than the fteenth day of
1. the right of access to the premises of the employer;
each month.
2. the right to have trade-union membership fees de- The employee may subsequently revoke authorization,
ducted by way of a stop order;
however, on written notice of a month, to both the employer and the trade union. At end of that period, em3. the right to elect shop stewards;
ployer must stop making the deduction.
4. the right of shop stewards to get time o for trade- When paying deductions to the trade union, the employer
union activities; and
must also furnish union with
5. the right to disclosure of information.
Access to the workplace The logical place for contact
between union representatives and the members they represent, as well as prospective members whom the union
might recruit, is in the workplace. Section 12 of the LRA
states that a registered trade union, suciently representative, has the right of access to the workplace. This right
allows the union

a list of union members from whose wages deductions were made;

details as to amounts deducted and paid to the union;
the period to which the deductions relate; and
copies of all written notices of revocation of authorization by union members.

Election of shop stewards Shop stewards are union

to enter the employers premises, to recruit memrepresentatives, the infantry of the trade union.[144]
bers, to communicate with members and also to
They play a very important role in industrial relations,
serve members interests;
being in the best position to represent the union in the
to hold meetings with employees at the workplace workplace and to relay information about the workplace
to the union. They look after the day-to-day operation
(but outside of working hours); and
of the union and the protection and assistance of work to let members vote at the employers premises in ers with their work-related problems. Their statutory role
union elections or ballots.
is to ensure compliance with the law and with collective
agreements.
The purpose of this access is for the union to recruit new Section 14 of the LRA provides that members of a regismembers, to communicate with existing ones and to serve tered trade union, provided that the union represents the
the interests of union members in other ways.
majority of employees in the workplace, are entitled to
The right of access refers to access for union ocials,
to be clear, not just anyone who is aliated with union.
Nor do such ocials also not have free rein. The right
of access is not unlimited. Section 12(4) states that the
exercise of the unions right of access to the workplace
may be subject to such conditions, as regards time and
place, as are reasonable and necessary to protect life and
property, or to prevent the undue disruption of work.

elect trade-union representatives if the union has at least

ten members in the workplace. The nomination, election,
terms of oce and removal from oce of representatives
are governed by the unions constitution.

The number of representatives is determined according to

the number of union members in the specic workplace.
For example, if there are only between ten and fty union
members, there will be two representatives. The amount
In the case of domestic workers, there is no right of access increases on a sliding scale. The maximum number of
to workplace, given the intimate nature of the workplace. representatives is twenty.

8.4

Organisational rights

57

The functions of union representatives are set out in sec- No benchmark for shop stewards leave emerges from the
tion 14(4) of the LRA:
decided cases, but arbitrators have generally accepted ten
days per annul as reasonable. Employers may take dis to assist and represent the employee at his request in ciplinary action against shop stewards if they exceed or
abuse their powers by, for example, intimidating employgrievance and disciplinary proceedings;
ees, including other shop stewards. Employers are enti to monitor the employers compliance with the LRA tled to refuse to deal with shop stewards if they have committed serious misconduct.
and all other applicable laws;
Item 4(2) of the Code of Good Practice: Dismissal, seeks
to report alleged contraventions of LRA or collective
to discourage victimization of shop stewards by requiragreements to the employer, the representative trade
ing employers to inform and consult their unions before
union and the responsible authority or agency; and
taking disciplinary action against them for any reason. A
to perform any other function agreed between rep- number of cases concerning the dismissal of shop stewards have reached the courts. The approach in such cases
resentative trade union and the employer.
is to determine
Shop stewards are employed by the employer, not by
the union. Grogan describes the dicult position in
which shop stewards nd themselves, keeping two sets
of books, or attempting to serve two masters,[145] their
employer and their trade unionmasters whose interests
are often diametrically opposed. This situation is particularly dicult, writes Grogan, when shop stewards
also occupy supervisory or managerial positions.[146]
The courts have held, however, that employers may not
for this reason forbid managerial employees from being
elected as shop stewards; the most they can do is to discipline them if their union role actually prevents them from
performing their managerial duties properly.[147]

1. the dominant reason for the dismissal; and then

2. whether that reason relates to the performance by
the shop steward of his or her duties.
If it does, the dismissal is automatically unfair, and the
shop steward will invariably be reinstated.

Disclosure of information For a trade union to do its

job eectively, it may need access to certain information.
Section 16 provides for the provision of information both
to trade-union representatives and to trade unions. Only
The distinction between union ocials and union rep- registered unions which represent the majority of the emresentatives (like shop stewards) is an important one. ployees in the workplace are entitled to rely on section 16.
Trade-union ocials are employees of the trade union; Only relevant information must be disclosed: That is to
they perform various duties for the trade union in this ca- say, in terms of section 16(2), all relevant information
pacity. Trade-union representatives, on the other hand, that will allow the representative trade union to engage efremain employees of the particular employer at the work- fectively in consultation or collective bargaining must be
place, although they also represent the union in various disclosed. The information must be relevant to the eecways within the workplace where they are employed.
tive performance of functions in terms of section 14(4).
There is, in other words, an important link between the information required and the function of the representative.
Time o for trade-union activities Section 14(5) of
LRA entitles the trade-union representative to reason- Often the requirement of relevance means relevance to
the performance of a specic task.
able time o, during working hours,[148] without loss
of pay, to perform union functions and be trained in any Typically the information in question is in the hands of
subject relevant to performance of those functions. The the employer. A common example is production plans
meaning of reasonable in relation to paid time o is not or plans for restructuring, which will aect or cause retrenchment.
stated in the Act.
Attendance at union conferences and meetings may require the oce-bearer to be absent from work. In terms
of section 15(1), the oce-bearer of a registered, suciently representative trade union is entitled to take reasonable leave during working hours for the purpose of
performing the functions of his oce. In terms of section 15(2), the union and employer may agree on the number of days leave, the number of days paid leave and the
conditions attached to any leave. If the union and the employer are unable to reach an agreement, the dispute may
be determined by an award made in terms of section 21
of the LRA.

The registered majority union has a right to information

when the employer is actually involved in consultation or
bargaining with the union, or when consultation or bargaining is about to start. For example, at annual wage
negotiations, the employer may argue that its nancial
position, both short- and long-term, is poor. The trade
union may dispute this and demand that all relevant information on which the employer bases this argument be
disclosed. The employer would then have to furnish, for
example, proof of cancellation of orders, and reasons for
such cancellation, any existing and possible new orders,
and nancial statements.

58

COLLECTIVE LABOUR LAW

The employer, however, cannot be expected to disclose Sucient representation Where the union is suinformation which
ciently represented, it represents less than the majority
of employees in the workplace. There is no xed rule as
to sucient representation;" it is decided on a case-by is unavailable;
case basis. A suciently representative union enjoys the
is irrelevant to the issue or issues under discussion;
following organisational rights:
is legally privileged;
the right of access to the workplace;
could harm the employers business interests if disclosed; or
the right to deduction of membership fees from
wages; and
is private personal information relating to an employee, unless the employee has consented to the
the right to leave of shop stewards for trade-union
disclosure of such information. It is also possible
activities.
for the employer to convey such information to the
union without disclosing identities.
If the union is a member of a bargaining council, it enjoys
the following organisational rights:
If the employer regards certain types of information as
condential, it must notify the union of this fact.
access to the workplace; and
Disputes on the disclosure of information are to be re deduction of membership fees from wages.
ferred to the Commission for Conciliation, Mediation
and Arbitration, which will attempt to settle the dispute
If it is a minority union, it may enforce its rights through
through conciliation and, failing that, arbitration.
collective bargaining and industrial action. Two or more
trade unions may act jointly to acquire rights.
8.4.3 Dierent levels of representativeness by
The LRA does not dene sucient representation, but
unions for dierent rights
it does give guidelines. Factors to be taken into account
would include the nature of the workplace and the indusWhether a trade union is entitled to organisational rights
try involved, as well as the presence or absence of other
depends on the level of representativeness of the trade
unions with membership in the workplace. The approxiunion in the workplace, which can be either majority repmate gure is thirty per cent.[149]
resentation or sucient representation. If a union represents the majority of workers, it will have access to all In UPUSA v Komming Knitting, the Commissioner exorganisational rights. If the union is suciently repre- tended the right to access the workplace, together with
sentative, it will have access only to certain organisational the right to deductions of union subscriptions, to a union
rights: the rights of access, leave and stop-order facilities. which, at the time of the award, represented just seven
The rights to elect shop stewards and to disclosure of in- employees out of 31. The Commissioner made this deciformation, on the other hand, are reserved for unions that sion on the basis
have as members the majority of the employees in the
workplace.
that the union was the only union organising and recruiting at the workplace;
Usually, only a single union will be seeking organisational
rights, but two or more unions may also act together to do
so.

that it had been present in the workplace since

shortly after the employers inception; and

that its current low level of representation was due

Majority representation Where the union has a mato high labour turnover.
jority, representing 50 per cent plus one, or more, of all
employees in the workplace, it enjoys the following orThe Commissioner held that the union seemed capable of
ganisational rights:
recruiting a majority of the workers at the workplace.
In SACTWU v Marley, the Commission for Conciliation,
Mediation and Arbitration refused organisational rights
the right to have membership fees deducted from to a union with 42 per cent representivity, on the basis
wages;
that another union represented 56 per cent of employees
in the workplace, and because the employer had a long asthe right to elect shop stewards;
sociation with the other union, which included an agencythe right of shop stewards to leave for union activi- shop agreement.
ties; and
In NUMSA v Feltex Foam, the question was whether difthe right of disclosure of information.
fering degrees of sucient representativeness could be

the right of access to the workplace;

8.4

Organisational rights

set for dierent organisational rights: a higher degree for

gaining access to workplace, for example, than for stoporder facilities. The Commission for Conciliation, Mediation and Arbitration held that there have to be very
special circumstances to allow him to distinguish between
such rights. If the arbitrator is prepared to grant one of
these rights, in other words, there would have to be special circumstances to justify a refusal to grant any of the
others.

59
workplaces. The court also made it clear that the onus
rests on the union to prove that two operations are two
dierent workplaces.

Thresholds Employers and majority unions are permitted to conclude collective agreements that set thresholds for the acquisition of rights under sections 12 (union
access to the workplace), 13 (stop-orders) and 15 (time
o). This right is conferred by section 18 (Right to esIn Organisation of Labour Aairs v Old Mutual Life Astablish thresholds of representativeness), which reads as
surance, the Commissioner was prepared to order the emfollows:
ployer to grant access to the workplace and stop-order facilities to a union with level of representivity which would
not ordinarily have permitted the granting of these rights,
(1) An employer and a registered trade
on the basis that the rights had been granted to other
union whose members are a majority of the
unions with lower representivity. A similar approach was
employees employed by that employer in a
adopted in Group 4 Falck v DUSWO.
workplace, or the parties to a bargaining council, may conclude a collective agreement esThe eect of these decisions is that, when an employer
tablishing a threshold of representativeness regrants organisational rights to a union with, for example,
quired in respect of one or more of the organionly ten per cent representivity, the employer cannot resational rights referred to in sections 12, 13 and
ally argue that another union seeking organisation rights
15.
must have at least thirty per cent.
Section 18 allows an employer and majority union in a
workplace, as well as parties to a bargaining council, to
establish by collective agreement the level of representativeness required for the purposes of gaining access, deductions and leave at a particular workplace.
The only limit is that the agreed threshold must be applied
equally to all unions seeking to exercise any, or all, of
these rights.

(2) A collective agreement concluded in

terms of subsection (1) is not binding unless the
thresholds of representativeness in the collective agreement are applied equally to any registered trade union seeking any of the organisational rights referred to in that subsection.

A threshold agreement, then, is an agreement to restrict

certain rights to unions with a certain percentage of repWorkplace The workplace is dened in section resentation. The idea is to prevent union fragmentation,
213 of LRA. There is a distinction to be drawn, in this and to make bargaining genuinely collective.
regard, between the public service and the private sector.
In the public sector, the workplace is the national 8.4.4 Acquisition of organisational rights
department, provincial administration, provincial
department or organisational component contem- Trade unions may acquire organisational rights in the following ways:
plated in the Public Service Act.
In the private sector, the workplace is the place
where employees of the employer work.
If the private employer has two businesses, independent
of each other by reason of size or function or organisation,
the place where the employees work in connection with
each independent operation constitutes the workplace for
that operation. This foresees the possibility that geographically distinct operations may constitute one workplace. Commission for Conciliation, Mediation and Arbitration commissioners been unwilling to accept too easily that geographically distinct places of work constitute
separate workplaces.

through collective agreement;

through membership of a bargaining council;
through strike action; or
through the section-21 procedure.

Through collective agreement The LRA makes provision in section 20 for a registered trade union and an
employer or employers organisation to conclude a collective agreement that regulates organisational rights. This
In Speciality Stores v SACCAWU, the Labour Court was means that, even if the trade union is not representative,
loath to nd, in the absence of proof by the trade union, it could have organisational rights on which the parties
that dierent stores of a retailer constituted dierent agreed.

60

COLLECTIVE LABOUR LAW

This route generally begins with an approach by the union

to the employer, and a request that it grant the union organisational rights. Section 20 does not prescribe any representivity requirements before the employer will be entitled to grant such rights in a collective agreement. Even
a union with only a small degree of representivity, therefore, may obtain organisational rights.

If the parties fail to conclude a collective agreement, either of the parties may refer the dispute, in writing, to the
Commission for Conciliation, Mediation and Arbitration
for conciliation. If conciliation fails, either party may request that the dispute be arbitrated. The CCMA has jurisdiction to arbitrate only if the union has complied with
all the provisions of section 21, which are peremptory.
Failure by the union to comply with them will mean that
Commission for Conciliation, Mediation and Arbitration
Through membership of a bargaining council In may not deal with the dispute.
terms of section 19 of the LRA, a registered trade union,
if party to a bargaining council, automatically acquires The CCMA commissioner will be called upon to decide
the right of access to the premises, together with the right whether or not the union is representative. Section 21
to have trade union subscriptions deducted by stop orders, authorizes him to make inquiries, conduct a ballot and
in respect of all workplaces falling within the jurisdiction take all other relevant information into account.
of the bargaining council. Again, it does not matter, for Once the actual number of members has been established,
the purposes of this route, how representative the union section 21(8) provides that the commissioner
is in the specic workplace. A union acquires these rights
irrespective of whether it is suciently representative or
must seek to minimize the proliferation of trade
not.
union representation in a single workplace and,
where possible, to encourage a system of a representative trade union in a workplace; and
Through s 21 procedure Briey, the section-21 procedure involves notice by the union to the employer of its
must seek to minimize the nancial and administraintention to seek organisational rights, consultation betive burden of requiring an employer to grant organtween union and employer in an attempt to reach a colisational rights to more than one registered union.
lective agreement, and referral by the union of a dispute,
if any, to the CCMA, which will attempt to settle the mat- Here the LRA gives clear legislative support for the printer through conciliation, failing which it will arbitrate the ciple of majoritarianism.[150]
dispute and issue a binding award. The union in this case
must be registered, and must enjoy a certain level of rep- In this regard, the commissioner must consider
resentation in the workplace.
The onus rests on the union to notify the employer, in
writing, that it intends to seek the organisational rights
conferred by the Act. The notice must contain the following information:
the workplace in which the union seeks to exercise
the rights;
the representivity of the trade union in that workplace;

the nature of the workplace;

the nature of the one or more organisational rights
that the registered trade union seeks to exercise;
the nature of the sector in which the workplace is
situated; and
the organisational history at the workplace or any
other workplace of the employer.

If the employer is of the opinion that the union is no

the rights that the trade union wishes to exercise; and longer representative, it may refer matter to the Commission for Conciliation, Mediation and Arbitration, request the manner in which the trade union wishes to exer- ing that it withdraw the organisational rights. The commissioner may withdraw any of the organisational rights
cise those rights.
once conferred which are exercised by any other registered trade union in respect of that workplace, if that
The notice must be accompanied by a certied copy of
other union has ceased to be a representative union.
the trade union registration certicate.
In order to determine the membership or support of the
Within thirty days of receiving the notice, employer must
registered trade union, the Commissioner may
meet with the union. The parties must then try to conclude a collective agreement regulating the manner in
make any necessary inquiries;
which the organisational rights will be exercised. The
employer may refuse to grant union rights on the grounds
where appropriate, conduct a ballot of the relevant
there is a dispute as to what constitutes a workplace,
employees; and
or because the employer argues that the union does not
take into account any other relevant information.
enjoy the required degree of representativeness.

8.5

Collective bargaining

61

The employer must co-operate with the Commissioner

and make available any information and facilities that are
reasonably necessary for this purpose. An employer who
alleges that a union is no longer a representative trade
union may apply to the CCMA to withdraw any of the
organisational rights previously granted.

even if it does not meet the statutory threshold for acquiring such rights. Except for the right to information,
in fact, organisational rights are the only rights conferred
by the LRA over which strikes are permitted.

Within thirty days of the notice, employer and union

meet in an attempt to conclude a collective agreement.

1. once the union conceded that it lacked a majority,

there would be no dispute over which to strike; and

This is the consequence of NUMSA v Bader Bop,[151]

where NUMSA, although not a majority union, sought
In summary, the section 21 procedure runs as follows:
to acquire the right to elect shop stewards by striking.
The lower courts were divided. A divided Labour Ap The union noties the employer in writing that it in- peal Court held that minority unions could not do strike
for such a right because,
tends to exercise organisational rights.

2. such a strike would be hit by section 65(1)(c), which

prohibits strikes over disputes that either party may
refer to arbitration.

If a collective agreement is concluded, they need go

no further with section 21; if not, either party refers
the dispute in writing to the Commission for Concil- This judgment was overturned by the Constitutional
iation, Mediation and Arbitration for conciliation.
Court, however, which held that the minority unions may
strike in support of demands for organisational rights to
If the matter is not successfully conciliated, there are
which they are not entitled under the LRA.
two options:
The Constitutional Court found that nothing in section
Either party may request arbitration, where af- 20 of the LRA precludes a collective agreement granting
ter a Commissioner may determine the repre- collective-bargaining rights, even if the qualication for
sentativeness of the union and the manner in representativity is not met. The courts interpretation of
which rights are to be exercised. The Commis- this was that, if a minority union asks for, but does not
sioner may consider an application for with- succeed in acquiring, the organisational rights in quesdrawal of the rights, and relevancy and con- tion, and if conciliation subsequently fails, the disputedentiality of the information. An arbitration resolution mechanism is to strike for it.
award is binding on the parties.
This judgment has been severely criticized.
The union may strike, or the employer may
If the union utilizes the strike remedy, but is unsuccessful
lock out:
in forcing employer to grant the rights, the union loses the
If the union gives notice of its intention right to utilize the section-21 procedure for one year from
to strike, it may not refer the dispute to date on which notice was given of the intention to go on
arbitration for a period of twelve months strike.
from the date of the notice.
The same condition applies to an em8.4.5 Dispute resolution for organisational rights
ployer giving notice of a lock-out.
The LRA Amendment Bill now before parliament proposes to amend section 21. Section 8A of the proposed
amendment would allow a non-majority trade union to
bring shop stewards into the workplace.

If there is a dispute about the interpretation of organisational rights, any party may refer the dispute in writing to the Commission for Conciliation, Mediation and
Arbitration for conciliation and, if conciliation fails, for
arbitration.[152]
Disputes about disclosure of information follow the same
route. In determining the dispute, the Commissioner
must strike a balance between the employers right to privacy and the interests of sound collective bargaining. The
Commissioner has a fairly wide discretion to make a suitable award to achieve this.

Through strike action The LRA would prohibit a

strike in support of a demand that the employer grant all
or some organisational rights to a union, because such a
dispute may be referred to arbitration in terms of section
21. Section 65(2)(a) specically permits a union which
would otherwise have the right to refer a dispute about
organisational rights to arbitration in terms of section 21
8.5 Collective bargaining
to embark on strike action in an attempt to force employer
to grant these rights.
The legal rules relating to freedom of association and orA trade union, including a minority union, may therefore ganisational rights are all aimed at making collective barstrike in support of a demand for organisational rights gaining possible. There are specic rules that govern the

62
collective bargaining process and the result thereof: collective agreements.

COLLECTIVE LABOUR LAW

submitting the dispute to mediation.

Neither the Constitution nor the LRA denes collective When a trade union enters into the collective-bargaining
bargaining. This is primarily because the law does not process, it will normally have one of three objectives in
impose a legal duty to bargain on employers and trade mind:
unions.
Collective bargaining must be understood as a process.
The process of collective bargaining entails negotiations
between the two parties:
1. a union on the one hand; and
2. an employer or an employers organisation on the
other hand.

1. The rst, and most important, is the regulation of

terms and conditions of employment.
2. The second is regulation of the relationship between
the union and the employer in whose workplace it
has members. The union may negotiate organisational rights with an employer.

3. Linked to the rst three objectives, the union may

wish to attempt to resolve a dispute that has arisen
Broadly, then, the collective-bargaining process may be
between it and the employer.
dened as a process whereby employers (or employers organisations) bargain with employee representatives
(trade unions) about terms and conditions of employ8.5.1 Bargaining fora
ment, and about other matters of mutual interest.
Unlike mere consultation, collective bargaining presumes
The LRA makes provision for the establishment of two
a willingness from each party, not only to listen to and
institutions within which collective bargaining may take
consider the representations of the other party, but also to
place:
abandon its own xed positions where possible, in order
to nd common ground.
1. bargaining councils; and
Bargaining occurs, inter alia,
where two opposing parties exchange demands and
make counter-demands;

2. statutory councils.

The establishment, composition and function of bargain where they propose (and accept or reject) compro- ing councils and statutory councils are regulated in some
mises;
detail by the LRA. Employers and trade unions remain
free, however, to agree to their own collective-bargaining
where they negotiate; and
fora and procedures. The Act, however, does not regulate
where one party places pressure on the other to give this non-statutory collective bargaining in any detail; it
is left to the employer and the trade union to reach agreein to its demands.
ment on issues such as
Bargaining, then, is a dynamic process.
Collective bargaining is mainly concerned with disputes
of interest, but not to the exclusion of disputes of right.

where the collective bargaining will take place (at

industry, enterprise or plant level);

The word collective refers to the fact that employees

join together in trade unions to increase their power in
bargaining with employers over wages, working conditions and any other matters of mutual interest between
them.[153] It is important to note that, on the workers
side, only trade unions may engage in collective bargaining. Although a single employer can engage in collective
bargaining, an individual employee cannot, by denition,
engage in collective bargaining.

when the collective bargaining will take place;

on what topics collective-bargaining will occur;
who will represent the parties during the collectivebargaining process;
which employees will be covered by the collectivebargaining process; and

If successful, collective bargaining leads to a settlement

the precise procedures to be followed.
and the conclusion of a collective agreement. If it fails,
there are several options available to the employer or the
union, including
The only facet of this type of bargaining regulated by the
LRA is the legal eect and binding nature of collective
resort to a lock-out or a strike; and
agreements entered into.

8.5
8.5.2

Collective bargaining

63

Duty to bargain

and Arbitration for an advisory award. An advisory

award provides guidance only; it is not binding on the
It could be argued that the constitutional right to bargain parties.[155]
collectively (s 23(5)) includes both a legally enforceable
right to bargain collectively, as well as a corresponding
duty to bargain collectively on the other party to the rela- 8.5.3 Bargaining agents
tionship. Since the LRA does not create a duty to bargain,
this may give rise to the argument that the Act does not Collective bargaining is performed by bargaining agents,
go far enough in protecting and giving content to the con- namely trade unions and employers organisations. The
stitutional right. This debate may have to be solved by the LRA sets requirements for unions and organisations recourts in the future. For now, however, there is no general lating to registration. A trade union is dened as an assoduty to bargain on employers and trade unions in terms of ciation of employees whose principal purpose is to regemployers or employers orthe LRA. An employer may refuse to engage with a trade ulate the relations between [156]
ganisations
and
employees.
Only employees may be
union; in turn, the trade union may take strike action.
members of a trade union. Job seekers and ex-employees
The question of whether the constitutional right to bar- may not be members of a trade union.[157]
gain collectively includes a duty on the other party has
arisen in connection with one group of persons not cov- To qualify as a trade union, an association of employees
ered by the Act: members of the South African National need not be registered. Registration is benecial, howDefence Force (SANDF). In three separate disputes, the ever, since only a registered trade union is entitled to
High Court had to consider whether the South African rights, such as the right to
National Defense Force Union (SANDU) may rely on the
conclude a collective agreement enforceable under
provisions of section 23 in order to obtain a court order
the LRA;
to require the State to bargain collectively with it. These
decisions, and their arguments, were contradictory.
acquire organisational rights;
The SCA, on appeal, held that the constitutional provi be a member of a bargaining council, statutory
sion does not impose a judicially enforceable duty to barcouncil and workplace forum; and
gain on employers or employees. On further appeal, however, the Constitutional court left the question open. It did
conclude closed-shop and agency-shop agreements.
point out, however, that the contrary approach could create diculties. It came close, then, to agreeing with the The powers and functions of a bargaining council are outSCA that no duty to bargain collectively exists in South lined in section 28 of the LRA.[158] A bargaining council
African labour law.
has three main functions:
Although the LRA does not compel parties to bar1. to conclude collective agreements;
gain with each other, it encourages collective bargaining
through the granting of organisational rights, the right
2. to enforce those collective agreements; and
to establish bargaining institutions and closed-shop and
agency-shop agreements. Should an employer refuse to
3. to prevent and resolve labour disputes.
bargain, the Act allows for strike action by employees to
convince the employer to bargain. A refusal to bargain
8.5.4 Levels of bargaining
includes:
Collective bargaining can take place at plant level,[159]
sector level[160] or industry level.[161] The LRA encourages collective bargaining at sector or industry level. Pro the employers refusal to establish a bargaining vision is made for the establishment of bargaining councils for a particular sector. It is at this level that bargaining
council;
will take place in bargaining councils.[162] Moreover, bar the employers withdrawal of recognition of a col- gaining councils may be established in the private as well
lective bargaining agent;
as the public sector. The private sector is the economic
sector in which the State is not the employer; in the public
the employers resignation as a party to a bargaining
sector, the State is the employer.[163]
council; and
the employers refusal to recognise a trade union as
a bargaining agent;

the employer disputing appropriate bargaining units, 8.5.5 Disputes requiring bargaining council to relevels and topics.[154]
solve
Disputes regarding refusal to bargain must rst be referred to the Commission for Conciliation, Mediation

Disputes about freedom of association: A bargaining council only can conciliate these disputes, failing

64

COLLECTIVE LABOUR LAW

which they should be referred to the Labour Court Requirements There are three important elements
for adjudication.
that distinguish a collective agreement from any other
agreement between employees and employers:
Disputes of interest in an essential service: A bargaining council can conciliate and arbitrate these
1. A collective agreement must be in writing.
disputes.
2. Only a registered trade union can be a party to a
Disputes about severance pay: A bargaining council
collective agreement. Agreement with unregistered
can conciliate and arbitrate these disputes.
trade union not a collective agreement.
Disputes about unfair labour practices: A bargain3. A collective agreement must regulate terms and coning council can conciliate unfair-labour-practice disditions of employment or any other matter of mutual
putes provided that they do not relate to discriminainterest between a trade union and the employer or
tion. Discrimination disputes must be referred to the
employers organisations.
Commission for Conciliation, Mediation and Arbitration for conciliation, failing which they must go
to the Labour Court for adjudication.
In writing A collective agreement need not be signed
by the parties to the agreement to be valid. All that is required is that the agreement be in writing. It is not even
necessary that the collective agreement be contained in
Dimissal disputes, if the reason for dismissal is a single document. It would, however, be advisable for
based on operational requirements, for participating the parties to the agreement to sign a single written docuin an unprotected striek, for reasons connected to a ment, as this would assist in eliminating later disputes as
closed-shop agreement, or automatically unfair: A to whether or not an agreement was actually entered into,
bargaining council only can conciliate these
and what the content of the agreement was.
Disputes that may lead to a strike or lock-out: A bargaining council only can conciliate these disputes.

disputes.

Registration Only registered unions may be parties

to collective agreements, but a union being unregistered
Disputes based on misconduct
does not mean that the union may not conclude an agreeand incapacity: A bargaining council may conciliate and ment with an employer; it simply means that the agreearbitrate these disputes by way of the con-arb procedure. ment will fall outside the scope of the LRA, and will not
be enforceable in terms of the LRA. A single employer
may conclude a collective agreement; a single employee
8.5.6 Collective agreements
cannot. The reason for this is the inequality of power
between an employer and a single employee, and that a
The main goal of collective bargaining between an em- single employee is not a collective.
ployer and a trade union is to reach consensus about certain matters and formalise their relationship by means of
a collective agreement. A collective agreement regulates Content The denition also states what topics must be
the rights and duties of parties, as well as the terms and regulated by a collective agreement. It must deal with the
terms and conditions of employment, and other matters
conditions of the employment of workers.
of mutual interest between the parties. Terms and conIn terms of section 213 of the LRA, a collective agree- ditions of employment relate to those substantive proviment is a written agreement concerning terms and condi- sions of the employment relationship, like working hours,
tions of employment or any other matter of mutual inter- remuneration and leave. Collective agreements can also
est concluded by one or more registered trade unions, on regulate the granting of organisational rights to registered
the one hand and, on the other
unions.
one or more employees;
Binding eect A distinction must be drawn between
parties to the agreement and members of the parties to the
one or more employers and one or more registered agreement. Section 23 of the LRA provides that the following entities or persons are bound by a collective agreeemployers organisations.[164]
ment:
The parties, therefore, are
the parties to the agreement;
a registered trade union; and
each party to the agreement and the members of ev the employer/s and/or registered employers organiery other party to the agreement, in so far as the prosation/s.
visions are applicable to them;
one or more registered employers organisations; or

8.6

Workplace fora

65

members of a registered trade union and employers

A union can embark on industrial action; a forum
who are members of a registered employers organcannot.
isation that are party to the collective agreement if
it regulates
All employees, including non-union members, may be
members of a forum. Senior managerial employees, how terms and conditions of employment; or
ever, may not be members of a forum. Only registered
the conduct of the employers in relation to trade unions or trade unions acting jointly, representing
their employees or the conduct of the employ- the majority of all employees employed in the workplace,
ees in relation to their employer.
may apply for the establishment of a forum.
employees who are not members of the registered A forum may be established in any workplace of employers with more than 100 employees, either through a
trade union or unions party to the agreement, if
collective agreement or through the intervention of the
the employees are identied in the agreement; CCMA. Only larger employers, therefore, will be in the agreement expressly binds the employees; volved in fora.
and

A forum must meet regularly. Its functions are to consult

the trade union or unions represent the major- on certain matters and to have joint decision making on
ity of all the employees employed in the work- other matters.
place.
8.6.1 Consultation
A collective agreement binds for the whole period of the
collective agreement every person bond in terms of sec- Consultation entails that the employer
tion (1)(c) who was a member at the time it became binding, or who becomes a member after it became binding,
allows the forum to make representations and to adwhether or not that person continues to be a member of
vance alternative proposals; and
the registered trade union or registered employers organ considers and responds to these. If the employer disisation for the duration of the collective agreement.
agrees with them, it must state the reasons for disagreeing.
Contracts of employment Where applicable, a collective agreement varies any contract of employment beConsultation must take place before the employer impletween an employee and an employer if they are both
ments any proposal.[166]
bound by the collective agreement.[165]
8.6.2 Joint decision making
Termination Unless the collective agreement provides
otherwise, any party to a collective agreement that is con- Joint decision making requires the employer to consult
cluded for an indenite period may terminate the agree- and reach consensus with a forum.
ment by giving reasonable notice in writing to the other
parties.
8.6.3 Matters for consultation

8.6

Workplace fora

To encourage workers participation in the workplace, the

concept of a workplace forum has been introduced by
the LRA. A workplace forum is an in-house institution
promoting workers participation in decision making at
the workplace. Workplace fora are intended to deal with
non-wage-related issues such as restructuring, introduction of new technology, new work methods, and the like.
It is important not to confuse a trade union and a workplace forum, as the latter is not a bargaining structure:
A union is a juristic body; a forum is not.
A union deals with wage-related issues; a forum
deals with non-wage-related issues.

Matters for consultation include (unless they are regulated

by a collective agreement) proposals relating to
restructuring the workplace (for example, the introduction of new technology and new work methods);
changes in the organisation of work;
total or partial plant closure;
mergers and transfers of ownership in so far as they
have an impact on the employees;
the retrenchment of employees;
exemption from any collective agreement or law;
job grading;

66

COLLECTIVE LABOUR LAW

criteria for merit increases or the payment of discre- The Commissioner will not compel the employer to distionary bonuses;
close irrelevant information.
education and training;
product development plans; and
export promotion.[167]

Despite the potentially important inuence that a forum

may have on a workplace, few such forums are found
in practice. This is due to employers viewing fora as
an inroad to managerial prerogative, and the concern
of unions that fora will undermine collective bargaining
structures.[173]

A bargaining council or a representative union and an employer may conclude a collective agreement granting a forum the right to be consulted about additional matters that 8.7 Industrial action
fall within the councils registered scope.[168]
At the end of a collective-bargaining session or process,
parties may either reach an agreement or fail to do so. If
an agreement is reached, a collective agreement is con8.6.4 Matters for joint decision making
cluded. If no agreement is reached, parties may agree on
Matters for joint decision making cannot be regulated by mediation or arbitration, or decide to exert pressure on
a collective agreement. Matters for joint decision making each other through industrial action.
relate to
Industrial action, sometimes also called collective action,
generally refers to employees acting together to force the
hand of the employer, but employers, too, for the purposes of industrial action, employers may act individually
the proper regulation of the workplace (except for or collectively with other employers to lock out employwork-related performance);
ees. Industrial action for employees can take the form
of strikes, secondary strikes, pickets and protest action,
measures designed to protect and advance persons
while employers have recourse to lock-outs.
disadvantaged by unfair discrimination; and
Strikes and lock-outs are a reality in the workplace"just
changes by employer-representatives on boards of like friction in a marriage is a reality.[174] Conict in the
employer-controlled schemes with regard to social workplace"and in a marriage[175] is not necessarily
benets.[169]
negative:
disciplinary codes and procedures;

A representative union and the employer may also enter

into a collective agreement conferring on the forum joint
decision making in respect of additional matters or removing other matters.[170][171]
In fullling its duties to consult and to have joint decision
making, an employer is required to disclose all relevant
information that will allow the forum to participate effectively in consultation and joint decision making. The
employer is not obliged to disclose information, however,
that is legally privileged;
that the employer may not disclose without contravening a law or court order,

It gives the parties an opportunity to reafrm their dierent bargaining strengths and
positions. Conict becomes problematic only
if matters get out of hand as a result of the
power struggle. That will then undermine the
purpose of the conict.
Another problematic aspect of conict is
that once parties are in a stand-o, the matter will not be resolved without a loser and a
winner. In the long run, this may lead to a deterioration of the relationship and it may even
spark further friction about other issues.[176]

that is condential and, if disclosed, may cause sub- In the workplace, again just like in a marriage, the law
can
stantial harm to the employee or the employer; and seeks to ensure healthy and productive conict that [177]
lead to the resolution of matters of mutual interest.
private personal information relating to an em- The LRA sets out the manner in which this is to be done
ployee (unless the employee has consented to the by regulating various types of industrial action.
disclosure).[172]
In the past few years, South Africa has seen a high level of
Disputes about disclosure of information must be referred
to the Commission for Conciliation, Mediation and Arbitration. If parties fail to resolve the dispute through conciliation, any party to the dispute may request arbitration.

industrial action. The Department of Labour has reported

that working days lost to work stoppages in 2010 were
the highest ever, with approximately 20,674,737 working
days lost from about 74 work stoppages; in 2009, there
were only 51.[178]

8.7

Industrial action

The right to strike is clearly protected in South Africa

through the Constitution, which guarantees that every
worker has the right [...] to strike.[179] The Constitution does not give employers the right to lock out
employees.[180] Employers right to lock-out is implied in
the Constitutions express protection of the right to bargain collectively.[181] The LRA provides, however, in section 64(1), that every employee has the right to strike, and
that every employer has recourse to a lock-out.

67
8.7.1 Hurdles in the way of protected industrial action
No right is unlimited. Rights may be limited in the interests of society or by the rights of others. Section 36(1)
of the Constitution provides for the limitation of rights in
terms of law of general application. The LRA is such a
law. It limits the right to strike.

Strikes and lock-outs are not automatically protected, as

Neither the right to strike nor the right to a lock-out is there are some hurdles that employees and employers
directly protected in terms of an ILO Convention, but it have to cross before their actions will be protected:
is indirectly done through ILO Convention 87 and ILO
Convention 98, which were both ratied by South Africa.
1. To cross the rst hurdle, the parties should ensure
that their action complies with the denition of a
Both strikes and lock-outs are essential elements of colstrike or a lock-out. They must therefore avoid the
lective bargaining, but such rights should be used only as
inherent limitations in the denitions of both strikes
measures of last resort.[182] Strikes are used by employand lock-outs.
ees to back up their demands in promoting and defending
their employment-related interests; lock-outs are used by
2. To cross the second hurdle, the parties should comemployers to back up their employment-related demands.
ply with the procedure prescribed by the LRA in
In matters of industrial action, it is important to know
section 64. In certain limited circumstances, emwhat type of action to take.[183] Dierent types of inployers and employees will be exempted from comdustrial action serve dierent purposes. The purpose of
plying with these procedures.[186]
the employer or the employees will determine the type of
3. To cross the third hurdle, the parties should ensure
action to be taken:
that none of the prohibitions against industrial action, as contained in section 65 of the LRA, are ap A strike is undertaken to remedy a grievance or replicable to their issue in dispute. The parties will
solve any matter of mutual interest between employbe able to continue with collective action only if the
ees and employers.
nature of the particular dispute between the parties
allows it. For example, employees may go on strike
only if the dispute is one of interest, meaning a
A secondary strike is a strike in support of another
dispute about a change to an existing right or about
strike (known as the primary strike) in order to put
creating a new right. Employees may not strike
pressure on the primary employer to accede to the
about a dispute of right, which would be a dispute
demands of its striking employees.
about the application and interpretation of an existing right, since these must be referred to arbitration.
A picket is a peaceful demonstration of support for
They are better suited to resolution by third-party
any protected strike, or of opposition to any lockdetermination than by industrial action.
out.
Protest action is undertaken to promote or defend Compliance with denition of strike or lock-out
the socioeconomic interests of workers.
It is important that the actions taken by employees and
employers fall within the denitions of a strike or a lock A lock-out is undertaken by an employer to compel out. Action that does not amount to a strike or a lock-out
its employees to accept a demand in respect of any will not enjoy protection in terms of the LRA. This is the
rst hurdle to be crossed by employees and unions for a
matter of mutual interest between them.
protected strike, and by employers for a protected lockout. This hurdle stands on two legs:
Not only is it important to ensure that the right type of
action is chosen; it is important also to ensure that the
1. denition of a strike; and
action will be protected by the LRA.[184] In the case of a
protected strike or lock-outit used to be called a legal
2. denition of a lock-out.
strike or lock-out under the 1956 LRAthe parties taking part in the action are not guilty of breach of contract
and cannot be dismissed for that reason.[185] The court Denition of a strike Strike is dened as follows:
may not order an interdict to stop the action from continthe partial or complete concerted refusal to
uing, and the participants in the industrial action will not
work, or the retardation or obstruction of work,
be held liable for compensation for the work stoppage.

68

8
by persons who are or have been employed by
the same employer or by dierent employers,
for the purposes of remedying a grievance or
resolving a dispute in respect of any matter
of mutual interest between employer and employee and every reference to work in this definition includes overtime work, whether it is
voluntary or compulsory.

Except for protest action, any intentional refusal to

work will amount to misconduct unless it can be regarded
as strike action in terms of the above denition. In order to qualify as strike action, the employees must comply with the following three elements contained in the
denition:[187]
1. there must be a refusal to work (a complete or partial
retardation or obstruction of work);

COLLECTIVE LABOUR LAW

people acting together who are or have been employed

by the same employer or by dierent employers (as in
the case of an industry-wide strike). The action is thus
directed at the employer or employers. If, for example,
employees refuse to work because they have a demand
against a union, that will not amount to strike action.[192]
An exception exists in respect of secondary strikes.
The refusal to work must be for the common purpose of
remedying a grievance or resolving a dispute in respect of
any matter of mutual interest between the employer and
employee. A grievance or an issue in dispute in respect of
a matter of mutual interest must exist, therefore, before
an action may be deemed a strike. Where there is no
grievance or dispute against the employer, there cannot
be a strike.[193] While the concept of mutual interest is
not dened in the LRA, it was described as whatever can
be fairly and reasonably regarded as calculated to promote
the well-being of the trade concerned.[194][195]

2. the refusal must be a concerted action by persons Matters of mutual interest may include, for example,
(employed by the same or dierent employers); and
terms and conditions of employment;
3. the refusal must be for the purpose of remedying
health and safety issues;
a grievance or resolving a dispute in respect of any
matter of mutual interest between an employer and
the negotiation of disciplinary procedures; and
an employee.
wage increases.
There must be a refusal to work in order for an action to
An important indication that a matter is one of mutual inqualify as a strike. This is the rst hurdle that employees
terest would be that the matter can be dealt with through
must cross. The refusal to work must be
collective bargaining. For example, political issues or demands against the State do not qualify, unless the State is
in relation to work which employees are contractu- the employer and the demands relate to the States role
ally obliged to perform; and
as employer. These political issues or demands should be
dealt with by way of protest action.
not contrary to the law or a collective agreement.
The action may be partial (in that the employees still
perform some of their duties),[188] or complete (in that
the employees do not perform any of their duties), or
the retardation of work (where employees work, but at
a reduced pace), or obstruction of work (where employees disturb production through their actions). A refusal
by employees to work overtime also constitutes a strike,
whether the overtime is compulsory (required by a contract or by a collective agreement) or voluntary.[189][190]
Although the Constitution grants individual workers the
right to strike,[191] the right itself cannot be exercised individually. The action must be
concerted;"
by persons;" and
constitute collective action.
An individual employee cannot engage in a strike. More
than one person must be involved in order for the action
to constitute a strike. The action must be carried out by

Denition of a lock-out While employees have the

right to strike in terms of the Constitution and the LRA,
employers do not have a right to lock-out, but they do
have recourse to a lock-out in terms of section 64 of the
LRA.
Lock-out is dened as
the exclusion by an employer of employees
from the employers workplace, for the purpose
of compelling the employees to accept a demand in respect of any matter of mutual interest between employer and employee, whether
or not the employer breaches those employees
contracts of employment in the course of or for
the purpose of that exclusion.[196]
To constitute a lock-out, the employers action must contain the following two elements:
1. The employer must exclude employees from the
workplace. This normally happens when the employer closes the workplace entrance or gates and

69
refuses to permit employees to enter the premises.
In practice, this allows the employer to refuse to pay
the employees their remuneration. This is in line
with the LRA,[197] which states that the employer
is not obliged to remunerate an employee for services not rendered during a protected strike or a protected lock-out. Put dierently, the principle of no
work, no pay applies. In terms of the denition
of a lock-out, the employer cannot exclude only one
employee; it must be a group of employees.

within thirty days of the referral. If the parties to the dispute reach an agreement, the dispute is resolved. If no
agreement is reached, the conciliator must issue a certicate to indicate that the matter has not been resolved.
After this (or after thirty days have gone by since referral
of the dispute for conciliation), the parties can give notice
of the proposed strike (or lock-out).[200]
Prescribed notice If conciliation fails, or thirty days
have passed since the referral of the dispute,[201] at least
48 hours written notice must be given of the commencement of the strike or lock-out. If the State is the employer,
at least seven days notice must be given. If the employer
is a member of an employers organisation, notice must
be given to the employers organisation.

2. The exclusion must be for the purpose of compelling

the employees to accept a demand in any matter of
mutual interest between employer and employees.
If it is for a dierent purpose, the action will not
constitute a lock-out and will be breach of contract.
Matters of mutual interest with regard to strikes In case of a proposed lock-out, the employer must give
are also matters of mutual interest in the case of notice to the union involved in the dispute, or to the emlock-outs.
ployees directly if there is no union.
Procedural requirements for protection of strikes
and lock-outs in terms of section 64 The second hurdle to be crossed in order for a strike or lock-out to be
regarded as protected is that certain procedural requirements must be complied with. This hurdle stands on the
three legs prescribed by section 64(1):
1. the issue in dispute must be referred for
conciliation;[198]
2. a certicate of outcome must be issued, or thirty
days must have gone by, before the strike can start;
and
3. the prescribed notice must be given to the employer
in the case of a strike, and to the trade union (or
the employees if there is no union) in the case of a
lock-out.
The issue in dispute The LRA denes an issue in dispute as the demand, the grievance, or the dispute that
forms the subject matter of the strike or lock-out.[199]
The issue in dispute must fall within the denition of
a strike (or lock-out). In other words, the demand,
grievance or dispute about which the employees strike (or
the employer locks out) must relate to a matter of mutual
interest.
The LRA requires that parties must try to resolve the issue. It requires that the parties rst refer the dispute to
a bargaining council (if there is one for that sector). If
no bargaining council exists, the dispute must be referred
to the Commission for Conciliation, Mediation and Arbitration for conciliation.

The LRA does not prescribe what details the notice must
contain; it only regulates that it must be in writing and
must be issued 48 hours before commencement of the
industrial action.[202]
There are some exceptions, according to which, the parties do not need to follow the procedures prescribed by
the LRA:
if the parties to the dispute are members of a bargaining council and the dispute followed the procedure set by that councils constitution;[203]
if the parties concluded a collective agreement with
prescribed procedures to be followed before they
strike or lock-out, and they have complied with that
agreement,[204][205][206]
if an employer implements an unprotected lock-out
and the employees strike in response to that (and
the same would apply if the employer locked-out the
employees in response to an unprotected strike);[207]
if a strike takes place after the employer has unilaterally changed the terms and conditions of employment, and the employer fails to rectify this despite
prior warning;[208] and
if an employer refuses to bargain with a union, in
which case the dispute must rst be referred for conciliation and then for advisory arbitration before notice of a strike can be given.

9 See also
Black Economic Empowerment

Certicate of outcome The bargaining council or the

Commission for Conciliation, Mediation and Arbitration
must attempt to resolve the dispute through conciliation

Labour Court of South Africa

Labour Appeal Court of South Africa

70

9 SEE ALSO

South African Constitutional Court

NUM v CCMA [2009] 8 BLLR 777 (LC).

South African company law

NUMSA v Feltex Foam (1997) 18 ILJ 1404

(CCMA).

South African contract law

UK labour law

9.1

Cases

Afrox Limited v SACWU & Others [1997] 4 BLLR

375 (LC).

National Union of Metal Workers of South Africa

and Others v Bader Bop (Pty) Ltd and Another
(CCT14/02) [2002] ZACC 30; 2003 (2) BCLR
182; 2003 (3) SA 513 (CC); [2003] 2 BLLR 103
(CC); (2002) 23 lU 104 (LAC) (13 December
2002).

Council for Scientic and Industrial Research v Fijen

1996 (2) SA 1 (SCA).

Organisation of Labour Aairs (OLA) v Old Mutual Life Assurance Company [2003] 9 BALR 1052
(CCMA).

CWIU v Algorax (Pty) Ltd 2003 11 BLLR 1081

(LAC).

Ouwehand v Hout Bay Fishing Industries (2004) 25

ILJ 731 (LC).

David Crouch Marketing v Du Plessis (2009) 30 ILJ

1828 (LC); [2009] JOL 23835 (LC).

Pressma Services (Pty) Ltd v Schuttler and Another

1990 (2) SA 411 (C).

Food and Allied Workers Union and Another v The

Cold Chain (C324/06) [2007] ZALC 17 (8 March
2007).

SACTWU v Marley (SA) (Pty) Ltd (2000) 21 ILJ

425.

Fedlife Assurance v Wolfaardt (2001) 22 ILJ 2407

(SCA).

SA Post Oce Ltd v Mampeule [2009] 8 BLLR 792

(LC).

Food & Nutritional Products (Pty) Ltd v Neumann

1986 (3) SA 464 (W).

SA Rugby (Pty) Ltd v CCMA & Others [2006] 1

BLLR 27 (LC).

Frys Metal v NUMSA [2003] 2 BLLR 140 (LAC).

Sindane v Prestige Cleaning Services [2009] 12

BLLR 1249 (LC).

Fuel Retailers Association of SA v Motor Industry

Bargaining Council (J2612/00) [2001] ZALC 46
(28 March 2001).
Gallagher v Normans Transport Lines (Pty) Ltd
1992 (3) SA 500 (W).
Independent Municipal and Allied Trade Union v
Rustenburg Transitional Council (J1543/98) [1999]
ZALC 145; (2000) 21 ILJ 377 (LC) (17 September
1999).
Jack v Director-General Department of Environmental Aairs [2002] JOL 10347 (LC).
Kroukam v SA Airlink (JA3/2003) [2005] ZALAC
5; [2005] 12 ILJ 2153 (LAC) (26 September 2005).
Luna Meubel Vevaardigers (EDMS) Bpk v Makin (t/a
Makins Furniture Manufacturers) 1977 (4) SA 135
(W).
Mahlamu v CCMA [2011] 4 BLLR 381 (LC).
Mashava v Cuzen & Woods Attorneys (2000) 21 ILJ
402 (LC).

South African National Defence Union v Minister of

Defence (CCT27/98) [1999] ZACC 7; 1999 (4) SA
469; 1999 (6) BCLR 615; (1999) ILJ 2265 (CC)
(26 May 1999).
South African National Defence Union v Minister of
Defence and Others (CCT65/06) [2007] ZACC 10;
2007 (5) SA 400; 2007 (8) BCLR 863 (CC); [2007]
9 BLLR 785 (CC); (2007) 28 ILJ 1909 (CC) (30
May 2007).
Syfrets Mortgage Nominees Ltd v Cape St Francis Hotels (Pty) Ltd 1991 (3) SA 276 (SE).
UPUSA v Komming Knitting [1997] 4 BLLR 508
(CCMA).
Venture Capital Ltd v Mauerberger 1991 (1) SA 96
(W).
Wallach v Lew Geen Estates CC 1993 (3) SA 258
(A).

McInnes v Technikon Natal [2000] JOL 6389 (LC).

Whitehead v Woolworths (Pty) Ltd [1999] JOL 5162

(LC).

Murray v Minister of Defence 2009 (3) SA 130

(SCA).

Yorigami Maritime Construction Co Ltd v NisshoIwai Co Ltd 1977 (4) SA 682 (C).

71

9.2

Legislation

[23] s 60.

Basic Conditions of Employment Act 1997.

[24] Item 6.

Employment Equity Act 1998.

[25] Item 6.

Native Building Workers Act 1951.

Industrial Conciliation Act 1956.
Unemployment Insurance Act 63 of 2001.

10

Notes

[26] Item 6.
[27] s 7.
[28] s 9.
[29] s 8.
[30] s 6(1).
[31] s 7(2).

[1] s 23(1).

[32] s 7(2).

[2] 2003 (24) ILJ 305 (CC).

[33] s 15.

[3] 2003 (24) ILJ 95 (CC).

[34] See EEA, Schedule 4.

[4] (1999) 20 ILJ 2265 (CC).

[35] s 19.

[5] SABC v McKenzie.

[36] s 20.

[6] Normally, someone who is an employee in terms of an

employment contract is not allowed to work for anyone
else.

[37] EEA, s 16.

[7] Usually someone working for another in terms of an employment contract is obliged to render the services personally. In the case of the independent contractor, it does not
really matter who does the work, as long as the job gets
done.
[8] The existence of these rights would normally indicate control, this in turn indicating an employment contract.
[9] Section 83A of the BCEA contains a provision similar to
section 200A of the LRA.

[38] s 19.
[39] s 21.
[40] s 27.
[41] s 50(1).
[42] s 53.
[43] Act 66 of 1995.
[44] s 185.
[45] s 192(1).

[10] LRA s5.

[46] s 192(2).

[11] s 79.

[47] s 186(1)(a).

[12] http://www.werksmans.com/keep-informed/
[48] s 186(1)(b).
our-publications/case-summaries/labour-law/
[49] s 186(1)(c).
increase-to-bcea-minimum-threshold-effective-as-at-1-july-2013/
[13] Schedule 8 of the LRA.

[50] s 186(1)(d).

[14] Act 26 of 2000.

[51] s 186(1)(e)-(f).

[15] s 23(1).

[52] 186(1)(e).

[16] Wages would be a dispute over interests, and excluded

from the ambit of the term benets.

[53] See LRA, ss 197, 197A.

[54] s 186(1)(f).

[17] s 9.

[55] Act 75 of 1997.

[18] s 6.

[56] 1996 (2) SA 1 (SCA).

[19] s 6(3).

[57] (2004) 25 ILJ 731 (LC).

[20] s 5.

[58] [1999] JOL 5162 (LC).

[21] s 6(3).

[59] Para 7.

[22] Item 3.

[60] [2002] JOL 10347 (LC).

72

[61] [2003] JOL 11136 (LC).

10 NOTES

[99] s 23(4)(c).

[62] s 186(1)(b).

[100] s 23(3)-(4).

[63] [2006] 1 BLLR 27 (LC).

[101] s 23(5).

[64] [1999] JOL 4515 (LC).

[102] s 23(5).

[65] [2000] JOL 6389 (LC).

[103] Steadman, Felicity. Workplace Forums in South Africa:

A Critical Analysis. Indus. LJ 25 (2004).

[66] [2000] JOL 7041 (LC).

[67] Act 63 of 2001.
[68] s 186(1)(c).
[69] LRA, s 186(1)(d).
[70] s 186(1)(e).

[104] If the association is one of students, for example, it clearly

does not meet this denition.
[105] s 95(4)
[106] s 2(a).
[107] s 2(a).

[71] s 186(1)(e).
[72] s 5(2)(c).
[73] 2000 CC [2002] JOL 9552 (LAC).
[74] [1997] 4 BLLR 375 (LC).
[75] [2003] 2 BLLR 140 (LAC).
[76] 2003 11 BLLR 1081 (LAC).

[108] s 2(a).
[109] Budeli, M. Understanding the right to freedom of association at the workplace: components and scope. (2010)
16.
[110] Two fundamental ILO conventions on freedom of association have been ratied by South Africa: Convention 87
and Convention 98.

[78] (2000) 21 ILJ 402 (LC).

[111] See South African National Defence Union v Minister of

Defence & Another (1999) ILJ 2265 (CC); SANDU v Minister of Defence & Another [2003] 9 BCLR 1055 (T).

[79] LRA s 188.

[112] Budeli Understanding 16.

[77] [2005] 12 ILJ 2153 (LAC).

[80] ss 197(7)-(9).

[82] McGregor and Dekker Labour Law Rules! p. 159.

[113] Budeli Understanding 19. The right to associate concerns an individual as an active participant in social activities and it is in a sense a collective right in so far as it can
be exercised by a plurality of individuals (19-20).

[83] McGregor and Dekker Labour Law Rules! p. 159.

[114] Budeli Understanding 17.

[84] McGregor and Dekker Labour Law Rules! p. 159.

[86] McGregor and Dekker Labour Law Rules! p. 160.

[115] Budeli Understanding 18, citing Olivier Statutory Employment Relations in South Africa in Slabbert, Prinsloo,
Swanepoel and Backer (eds) Managing Employment Relations in South Africa (1999) 5-60.

[87] Grogan Collective Labour Law 4.

[116] Budeli Understanding 20.

[88] Grogan Collective Labour Law 4.

[117] See DA Basson South African Interim Constitution Text

and Notes (1994) 40.

[81] McGregor and Dekker Labour Law Rules! p. 159.

[85] s 213 of the LRA.

[89] Grogan Collective Labour Law 6.

[90] Grogan Collective Labour Law 6.
[91] Grogan Collective Labour Law 6.
[92] Grogan Collective Labour Law 6.
[93] Grogan Collective Labour Law 7.
[94] Grogan Workplace Law 308.
[95] Grogan Workplace Law 308.

[118] Budeli Understanding 19.

[119] ss 18, 23(2).
[120] s 4(1)(b).
[121] Basson Essential Labour Law 252.
[122] s 4.
[123] s 5.

[97] s 23(2)(c).

[124] Again, it is worth emphasising that the protection of freedom of association accorded by section 5(2) applies also
to prospective employees.

[98] s 23(2)(a).

[125] s 6.

[96] Grogan Collective Labour Law 11.

73

[126] s 2.

[157] See NEWU v Mtshali & Another (2000) 21 lU 1166 (LC).

[127] s 2.

[158] The functions of a statutory council are narrower than

those of a bargaining council.

[128] Non-uniformed members of the Defence Force are civil

servants; they fall under the LRA.
[159] Plant-level bargaining refers to bargaining that takes place
between the employees (normally represented by unions)
[129] Basson Essential Labour Law 254.
and the employer at a specic plant or factory.
[130] Independent Municipal and Allied Trade Union & others v [160] Sectoral bargaining refers to bargaining that takes place in
Rustenburg Transitional Local Council (2000) 21 ILJ 377
a specic sector of the economy and linked to a specic
(LC).
geographical area.
[131] This type of council is established where no bargaining [161] lndustry-wide bargaining refers to bargaining for a whole
council exists (ss 39-43 of LRA), but very few councils of
industry, like mining or motor manufacturers, normally on
this type exist in practice.
the national level.
[132] s 23(6).

[162] s 27.

[133] s 36(1).

[163] In the public service, the Public Service Coordinating Bargaining Council coordinates the activities of the four main
bargaining councils in the public sector:

[134] McGregor and Dekker Labour Law Rules! p. 164.

[135] Basson Essential Labour Law 286.

(a) the General Public Service Sector Bargaining

Council;

[136] Haggard Compulsory Unionism, the NLRB and the Courts

(1977) 13.

(b) the Public Health and Social Development Sectoral

Bargaining Council;

[137] Budeli Understanding 31.

(c) the Education Labour Relations Council; and

[138] Budeli Understanding 31.

(d) the Safety and Security Sectoral Bargaining Council.

[139] Budeli Understanding 32.

[140] See Budeli Understanding 29-31 and the sources there [164]
cited.
[165]
[141] See the Venezuela case (Case 1611).
[166]
[142] Basson Essential Labour Law 287.
[167]
[143] s 24(6)-(7).
[168]
[144] Grogan Collective Labour Law 58.
[169]
[145] Grogan Collective Labour Law 60.
[170]
[146] Grogan Collective Labour Law 60.
[171]
[147] Independent Municipal and Allied Trade Union v Rusten[172]
burg Transitional Council (2000) 21 ILJ 377 (LC).

s 213.
s 23(3).
s 84(1).
s 84(1).
s 84(2).
s 86(1).
s 84(1).
s 86.
s 89(2).

[148] s 15(1).

[173] Van Niekerk 362-363.

[149] McGregor and Dekker Labour Law Rules! p. 167.

[174] McGregor and Dekker Labour Law Rules! p. 160.

[150] Grogan Workplace Law 324.

[175] McGregor and Dekker Labour Law Rules! p. 160.

[151] (2003) 24 lU 305 (CC).

[176] McGregor and Dekker Labour Law Rules! p. 160.

[152] s 22.

[177] McGregor and Dekker Labour Law Rules! p. 160.

[153] Steenkamp A et al The right to bargain collectively [178] Department of Labour Annual Report, Industrial Action
Report (2010) 3.
(2004) 25 ILJ 943.
[154] s 64(2).

[179] 23(2)(c).

[155] Although part of alternative dispute resolution, an advi- [180] Section 27(5) of the Interim Constitution, 1993, included
the right of employers to have recourse to a lock-out,
sory arbitration is more than mediation. It allows parties
but this right was not included in the nal Constitution.
to debate their case without fear of a nal decision.
[156] s 213.

[181] s 23(5).

74

[182] McGregor and Dekker Labour Law Rules! p. 181.

[183] McGregor and Dekker Labour Law Rules! p. 181.
[184] McGregor and Dekker Labour Law Rules! p. 182.
[185] An exception exists in cases of misconduct committed
during strike action, and if, as a result of the prolonged
industrial action, the employer suers economically and
needs to dismiss employees based on the operational requirements of the business.
[186] Section 64(3) provides for circumstances in which there is
no need to comply with the procedural requirements.
[187] See Maserumule P A perspective on developments in
strike law (2001) 22 ILJ 45.
[188] Examples of partial strikes are work-to-rule and goslows.
[189] This is also called an overtime ban.
[190] See Ford Motor Co. of SA (Pty) Ltd v National Union of
Metalworkers (2008) 29 ILJ 667 (LC).
[191] s 23(2)(c).
[192] Mzeku & others v Volkswagen SA (2001) 22 IL) 771
(CCMA).
[193] Simba (Pty) Ltd v FAWU & others (1998) 19 lU 1593
(LC).
[194] Rand Tyre and Accessories (Pty) Ltd & Appel v Industrial
Council for the Motor Industry (Transvaal), Minister of
Labour, and Minister for Justice (1941) TPD 108.
[195] See also Mischke C What are 'matters of mutual interest'?" (2001) CLL 10(9) 86.
[196] Section 213.
[197] s 67(3).
[198] s 64(1)(a).
[199] s 213.
[200] s 64(1)(a)(i)-(ii).
[201] s 64(1)(b)-(c).
[202] SA Airways (Pty) Ltd v SA Transport Allied Workers Union
(2010) ILl 1219 (LC).
[203] s 64(3)(a).
[204] s 64(3)(b).
[205] See also Columbus Joint Venture t/a Columbus Stainless
Steel v NUMSA [1997] 10 BLLR 1292 (LC).
[206] See also County Fair Foods (Pty) Ltd v Food & Allied
Workers Union & others (2001) 22 ILJ 1103 (LAC).
[207] s 64(3)(c)-(d).
[208] s 64(3)(e).

11

REFERENCES

11 References
M McGregor and AH Dekker (eds). Labour Law
Rules! Siber Ink, 2012.

75

12
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